An edited version of this article was originally published in The Nation.
By Victor Mhango and Tyler Holmes
In his campaign, new President Lazarus Chakwera assured Malawians that his administration would follow the laws of Malawi for the benefit of the country. “We want to respect our rule of law so that we protect the rights of people in the country,” Chakwera reportedly said.
On the other side of the recent elections, President Mutharika said in his June State of the Nation address, “I want Malawi to be a country where everyone must be accountable. Nobody should be above the law and nobody should be above criticism. The essence of democracy is that everyone must be accountable to someone else.”
Though these leaders seem in agreement, too often Malawi’s systems of accountability have been created but not implemented.
For example, ten years ago, Section 128 of the Police Act established an Independent Complaints Commission (ICC). To actually run such a commission, funds and human resources need to be allocated, a public advertisement needs to be made for the Independent Compliants Commisioner (section 133(2)), and a public campaign needs to give Malawians the opportunity to present their grievances to the new agency.
Though on its face an ICC may seem redundant to the Malawi Human Rights Commission (MHRC), the MHRC’s mandate is much broader than police misconduct. Malawians deserve an independent agency that can conduct investigations into incidents like the Chisepo rape case (October 2018), the Buleya Lule case (February 2019) and the sexual assaults at Msundwe (October 2019), but also fill in the gaps between the big events. The ICC is needed to hold officers accountable and devote resources to see systemic changes implemented, rather than wait for the next front-page story.
An independent police complaints body is not only about holding police to account, but also about respecting victims’ rights. Over half of respondents to the government’s Justice and Democratic Accountability Survey in 2018 were unsatisfied with the fairness of the police when responding to crime. An ICC will allow victims to access justice through an impartial body that will respect their dignity.
Since the passage of the Police Act in 2010, voices as diverse as the Public Appointments Committee (PAC), the Human Rights Defenders Coalition (HRDC), and the Malawi Law Society (MLS) called for the ICC’s formation. Most recently, in their case against Government following the allegations of rape and sexual assault of 17 women and girls by the police at Msundwe, the Women Lawyer’s Association (WLA) sued Parliament for failing to ensure an ICC could verify a police investigation and support a just outcome.
Likely in response to Msundwe, the past government and PAC advertised for an ICC Commissioner earlier this year and named Christopher Tukula to the post on Friday. They are to be commended; so too is the new government, through Minister of Homeland Security Richard Chimwendo Banda and Inspector General George Kainja, for recent statements in favor of the commission. However, after so long, Malawians deserve a fully functional ICC.
Parliament must ensure, before it passes the 2020-2021 budget proposal, that there are adequate, dedicated funds for the Independent Complaints Commission. Adequate funding is required so staff can be hired, sufficient office space acquired and furnished, and the ICC can create public awareness and begin to receive complaints.
The National Assembly must also consider additional laws or regulations which take into consideration lessons learnt from the implementation of similar commissions in Hong Kong, India, Kenya, South Africa, and the United Kingdom.
Commissioners must be assured their independence: the confusion as recently as last year over who was responsible for the appointment of a commissioner shows that the process needs clarity and impartiality. Budgets for the ICC’s affairs must be protected. In Kenya, the Independent Policing Oversight Authority has seen diminished allotments even as police murders increase. This should be avoided at all costs.
The ICC should be given a broad mandate to collect complaints from the public, initiate and conduct its own investigations, and, if necessary, prosecute officers. It is important to learn from the limitations of similar independent bodies in Hong Kong and the UK which lack subpoena power and the ability to open their own investigations.
Finally, the ICC must be given a mandate to serve the public with accessible offices, a national hotline, and budgeting to get to hard-to-reach populations.
Malawi’s leaders are united in expressing the need for accountability in government. They should take advantage of this bipartisanship to guarantee that the institutions charged with ensuring such accountability are fully formed, adequately funded, and respected. Government and Parliament should work together to finally and fully create the Independent Complaints Commission without delay.