By Richard Chirombo
Zachimalawi.blogspot.com- meaning, Richard Chirombo- reviews Chapters 15, 16 and 17 of the Republican Constitution.
These chapters provide for the establishment of the Malawi Police Service, The Defence Forces, and Malawi Prisons Service, and sets out their duties, functions, responsibilities and appointments to top most positions such as those of Inspector General of Police, Commander of the Defence Forces, and Chief Commissioner for Prisons, among others.
The group, therefore, embarked on a comparative exercice, in which we tried to analyse key features by way of comparing and contrasting.
We thus came up with the following observations, starting with similarities or features commonly shared by the three institutions in terms of functions, duties, establishment, appointments, and accountability, among others.
The first common feature about the Malawi Police Service, The Defence Forces, and the Malawi Prisons Service is that they are all constitutional, other than Statutory, bodies or institutions. This is so because they are established under the provision of the Constitution of Malawi and not an Act of Parliament (statutory law). This means that Acts (such as those pertaining to the MalawI Police Service, The Defence Forces and Malawi Prisons Service) are only there to provide the specific details, and expound on general Constitutional provisions.
Secondly, all the three Consitutional bodies fall under the Executive Branch of government.
The third feature is the over-emphasis on independence from undue influence from outside forces in a bid to maintain professionaism and efficient service delivery. This emphasis is emphatic through out the Republican Constitution and Acts proferring more details about the functions, responsibilities and dischage of duties among officers.
This point is closely related to the fact that officers serving in these institutions are implored to be impartial, and desist from taking part in direct political activity- except in cases where such officers resign from service to exercise their Constitutional right to take part in political affairs, or an individual officer is merely exercising his or her right as a Malawian citizen to take part in voting.
It was also clear that there is a striking similarity in the way top-most officials- namely, the Inspector General of Police, Commander of the Defence Forces, and Chief Commissioner for Prisons in the three institutions are appointed: they are all appointed by the Head of State and Government, the President of the Republic of Malawi.
All three institutions also have service commissions vested with powers to appoint persons to hold offices, other than those for the positions of Inspector General, Commander-in-Chief, and Chief Commissioner for Prisons, respectively. In the case of the Malawi Police Service, there is the Police Service Commission; for the Malawi Prisons Service, that responsibility is vested in the Prisons Service Commission; while for the Defence Forces, the hiring and firing of senior officers rests in the hands of the Defence Council.
The other prevalent feature about the Malawi Police Service, The Defence Forces, and the Malawi Prisons Service is the element of accountability and oversight. They all have independent institutions and Parliamentary committees organized to scrutinize appointments, decisions and other crucial deliberations.
For example, in the case of both the Inspector General of Police and Chief Commissioner for Prisons’ appointment, there is the Public Appointments Committee (PAC) of Parliament- mandated to scrutinize individuals nominated for top-most positions. PAC is also mandated to summon both the Inspector General of Police and Chief Commissioner for Prisons should there be need to investigate matters related to professional incompetence in the delivery of their duties.
Apart from these, the Republican Constitution also establishes the right to legal recourse as a human right, offering guarantees that no Constitutional provision prejudices the right of any person to seek legal redress in a higher court- notably, the High Court of Malawi.
The other observation is that Parliament- the legislative arm of government- plays a key role in scrutinizing decisions enforced by the Executive arm of government. For example, PAC scrutinizes individuals nominated for the positions of Inspector General of Police and Chief Commissioner for Prisons. PAC also has powers to summon these top officials and inquire as to their competence.
In addition, Parliament is also involved in approving any State of National Defence- within seven days after any such declaration by the Head of State and Government- should the president decide that the sovereignty and security of the nation is at stake. If Parliament does not approve the State of National Defence (Declaration of War, in case it involves another member of the international community) it, then, lapses after 14 days.
All these oversight measures are initiated to promote accountability, transparency and prevent excesses of power (abuse of office).
The other similarity is that both the Prisons Service Commission and Police Service Commission have put three years as the fixed period of time constituting one term of office. This brings us to another common principle: Members of these service commissions can serve as many terms as possible, so long as they are re-appointed.
Even for the Inspector General of Police and Chief Commissioner for Prisons; they both serve five year terms, though the Republican Constitution puts no limits on the number of terms one can serve.
The other common feature lies on grounds for removal from office. Both the Inspector General of Police and Chief Commissioner for Prisons may be removed from office on four grounds:
(a) Incompetent in the exercise of his or her duties
(b) Compromised in the exercise of his or her duties, to the extent that his or her capacity to impartially exercise the duties of that office is in serious question
(c) Otherwise incapacitated, and
(d) Over the age prescribed for retirement (which, in the wake of the newly-passed Pension Bill, is 50 years).
Then, as another point of striking similarity, there is the Constitutional provision for the delegation of responsibility (on part of the Inspector General, Chief Commissioner for Prisons), so long as it is done in writing, and these decisions can be scrutinized by respective service commissions.
The last, but not least, similarity is that legal practitioners appointed to serve in both the Prisons Service Commission and Police Service Commission are subjected to PAC approval. But this provision does not affect the Ombudsman (in case of the Police Service Commission), Justice of Appeal or Judge and a member of the Civil Service Commission.
While similarities abound, differences are also apparent- a factor that, to some extent, distinguishes any of the three institutions from each other in terms of functions, appointments, and accountability mechanisms and channels-of-command. Some of these elements include:
The nature of responsibilities vested in each of these institutions. For instance, the Malawi Police Service is there to provide public (internal) security and ensure the protection of persons within Malawi; the Defence Forces are there to guard against external threats in the course of upholding the sovereignty and territorial integrity of the Republic; while the mandate of the Malawi Prisons Service is to look after all penal institutions, labour camps, special and secure schools and other institutions for housing, detaining and rehabilitating persons sentenced to imprisonment.
It is also apparent that, while the Prison Service Commission and Police Service Commission have an acting Justice of Appeal or judge as Chairperson, this is not the case with the Defence Council, as it only gives room for the Minister responsible for Defence and the High Command of the Defence Forces.
And, again, while the Police Service Commission includes the Ombudsman on the list of its members, the Ombudsman is not included in the Prisons Service Commission; instead, the Ombudsman is only recognized in the Inspectorate of Prisons.
The Republican Constitution sets five as the number of years that constitute a term of office for both the Inspector General and Chief Commissioner for Prisons. However, it does not impose any term limits for the Commander of the Defence Forces.
The other, closely-related, distinction is that the Commander of the Defence Forces is not subject to the scrutiny of the Public Appointments Committee of Parliament for approval. This contravenes the procedure for the appointment of either the Inspector General of Police or Chief Commissioner of Prisons, as they are both subject to PAC approval.
Whereas the Prisons Service Commission and Police Service Commission, respectively, are chaired by a Justice of Appeal or Judge, there is no such provision in the composition of the Defence Council- which, coincidentally, also excludes such members as the Ombudsman (as is the case with the Prisons Service Commission, which also excludes him from membership as he is a member of the Inspectorate of Prisons), legal practitioner, and any member appointed by the Civil Service Commission.
Another stack contrast is that, while the Republican Constitution clearly defines grounds for the removal of the Inspector General of Police and Chief Commissioner for Prisons, it is silent on grounds for the removal of the Commander of the Defence Forces.
While Section 161 of the Republican Constitution clearly stipulates that the President (Head of State and Government) is the Commander-in-Chief, it is strikingly silent on his (supreme) position in the Malawi Police Service, raising questions over sentiments and suggestions that he is also Commander-in-Chief of both the Malawi Police Service and Malawi Prisons Service.
According to the Republican Constitution, which, to our knowledge, has not been amended, the President (Head of State and Government) is not Commander-in-Chief of the Malawi Police Service and Malawi Prisons Service. In fact, Prison and Police officers do not need commands; instead, they need mere directions. It is the Defence Forces who need commands! This is premised on the fact that a Service (Malawi Police Service, Malawi Prisons Service, for example) doesn’t need commands but gentility; they are not forces who go full throttle, full of action and energy. They ‘serve’ the nation.
In addition, the Malawi Prisons Service differs from the other two Constitutional bodies in that its Inspectorate of Prisons provides for the membership of a magistrate- who does not appear anywhere in both the Malawi Police and the Defence Forces- in its Inspectorate of Prisons. This is not strange in that there is no such thing as the Inspectorate of Police and Inspectorate of Defence Forces!
The Malawi Prisons Service is the only institution- of the three under review- vested with the power- through its Inspectorate of Prisons, and as stipulated in Section 169 (4)- to compile reports that are presented to the Minister responsible in form of a motion. The Inspectorate of Prisons is also mandated to propose amendments to any law, which the Minister responsible may then table as a (proposed) Bill in Parliament.
The other difference is that the Malawi Prisons Service- through its Inspectorate of Prisons- is the only institution allowed to exercise its powers in another Constitutional body such as the Malawi Police Service. For example, the Inspectorate of Prisons also exercises its oversight functions in holding cells in Police stations.
The other difference is that, while the Constitution of Malawi stipulates that the attainment of retirement age is one of the grounds for removal of a sitting Inspector General of Police and Chief Commissioner of Prisons, there is no such provision for Commander of the Defence Forces.
Lastly, but not least, membership to both the Police Service Commission and Prisons Service Commission excludes the President, Vice-President, Minister or Deputy Minister, Members of Parliament, but membership in the Defence Council includes the Minister responsible for Defence, and High Command of the Defence Forces.
In conclusion, it is clear that the Defence Forces, Malawi Police Service and Malawi Prisons Service are all united in the provision of one key service: maintenance of peace and order, both at the local and international level.
There are also prudent measures put in place to ensure that these institutions are accountable- at one point or another- to all the three arms of government: The Executive appoints the top leadership, namely the Inspector General of Police, Chief Commissioner for Prisons and Commander of the Defence Forces; the Judiciary is represented by either a Justice of Appeal of Judge, who chair the Police and Prisons Service Commissions; and the legislature, which scrutinises appointees vying for top Prisons and Police Service positions through the Public Appointments Committee.
Their inclusion in the Republican Constitution is an indication of their key role to the nation.
Lastly (by way of general observation), Group 2 was at pains to understand self-evident mistakes included in the constitution. For instance, Section 152, which establishes the Malawi Police Service (Force?), indicates that “There shall be a Malawi Police Force…”, only to mention the name “Malawi Police Service” in Section 153. This shows that framers of the Republican Constitution were in a hurry, and calls for the need for urgent revision.
Without this revision, or amendments and corrections in English Grammar, people will raise questions as to the legality of the Malawi Police Service, which (it is clear) is not established in Section 152. Where is the Police ‘Service’ coming from?
Otherwise, the Republican Constitution is clear and self-explanatory on many issues in provision pertaining to the Malawi Police Service, The Defence Forces and the Malawi Prisons Service.