The doctrine of separation of powers in Malawi has come under fresh scrutiny, with legal scholars and political analysts questioning its practical operation. A recent webinar by the Political Science Association of Malawi discussed the separation of powers and checks and balances in democratic Malawi. University of Malawi professor of law Garton Kamchedzera and political science scholar Nandini Patel led the discussion, querying how constitutional checks and balances are exercised in practice.
The webinar was held amid tension between the Executive and the Legislature after Speaker of Parliament Sameer Suleman announced the establishment of joint parliamentary committees to investigate alleged maladministration and governance concerns. The Executive and the governing Democratic Progressive Party (DPP) accused Suleman of pushing Parliament beyond its constitutional oversight mandate. This move came after the High Court of Malawi granted concerned citizen Austin Mkoka an order to proceed with judicial review.
Patel argued that since 1994, the Executive has weakened Parliament or interfered in its effective functioning. She stated that Parliament's central role is to hold the Executive to account, exercise its legislative functions, scrutinise public expenditure, and represent the interests of citizens. However, Patel noted that the effectiveness of these functions depends not only on the formal powers granted to Parliament by the Constitution but also on how those powers are exercised in practice and respected by the other arms of government.
Patel further argued that institutional developments and political practices over time have weakened Parliament and affected the balance of power. She noted that while sections 7, 8, and 9 of the Constitution clearly establish separate functions for the Executive, Legislature, and Judiciary, the courts have increasingly intervened in matters that should have been resolved by the political institutions themselves. Patel commended the Judiciary for upholding the Constitution but expressed concerns that it has become overburdened.
Kamchedzera stated that Malawi has experienced a "transition without transformation," arguing that although the country has adopted the principle of separation of powers, it has not fully translated into how power is exercised in practice. He observed that the problem goes beyond the formal separation of the Executive, Legislature, and Judiciary, with political networks influencing access to State resources and contributing to what he described as "chiefly ownership" of State power.
The DPP responded to the Speaker's decision, with secretary general Peter Mukhito justifying the party's reaction. Mukhito stated that while the party recognises Parliament as an independent arm of government, its independence does not place its decisions or processes beyond constitutional scrutiny. Other parties, including the United Democratic Front and Malawi Congress Party, also shared their views on the importance of respecting the separation of powers.
The debate highlights the challenges facing Malawi's democratic institutions, with concerns about the concentration of power and institutional weakening. Lawyer-cum-activist Benedicto Kondowe cautioned that when checks and balances fail, the result is concentration of power and institutional weakening. The discussion underscores the need for Malawi's institutions to operate effectively and uphold the Constitution.
Key points
- The doctrine of separation of powers in Malawi is being questioned amid tension between the Executive and Legislature.
- Scholars argue that the Executive has weakened Parliament and interfered in its effective functioning since 1994.
- The debate highlights the challenges facing Malawi's democratic institutions, with concerns about the concentration of power and institutional weakening.
