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**Crossposted from Nyasanet**

By: Dean Gottehrer

     The Office of the Ombudsman of Malawi was created in a new 
     Constitution passed provisionally on May 16, 1994, that finally took 
     effect on May 18, 1995. James Makoza Chirwa was appointed Malawi's 
     ombudsman in January 1995.  After taking office, he did a number of 
     things, one of which was to meet with Bob Dance, the public affairs 
     officer at the United States Information Service (USIS) in Lilongwe, 
     and request assistance. Mr. Dance told Mr.  Chirwa he didn't think 
     there was much he could do to help. He later learned of my proposed 
     visit to Lesotho for USIS and offered to bring an ombudsman specialist 
     to Malawi.
     
     I traveled to Malawi on January 11 and returned to Santa Cruz on 
     January 30 after two weeks as a professional in residence working with 
     the ombudsman and his staff. We had extensive discussions covering 
     most aspects of ombudsman work, the Constitution and proposed law 
     governing his office and seeking support from the donor nations and 
     organizations that maintain embassies and offices in Malawi.
     To understand the unique nature of the ombudsman's office in Malawi, a 
     little background on the history of the country, especially the 
     government that held power for 30 years prior to a vote for a 
     multi-party democracy, helps.
     
     Malawi is in the southern part of Africa and shares boundaries with 
     Mozambique, Tanzania and Zambia.  A nation the size of Pennsylvania 
     with a population variously estimated between 10 and 12 million 
     people, it is often described as the most densely populated African 
     nation and one of the poorest in the world. The nearly two million 
     people from Mozambique who took refuge in Malawi have pretty much 
     returned to their own country. (A process that in some instances 
     involved moving across a road I traveled where the road marked the 
     boundary between the two countries.)
     
     About 85 percent of the nation's population is rural, the rest 
     residing in urban areas such as Lilongwe, population approximately 
     250,000, and Blantyre, population approximately 450,000, the nation's 
     two largest cities. Lilongwe was declared the capital in 1975, but 
     while the ministries and the diplomatic community are in Lilongwe, the 
     President is in Blantyre and the Parliament is in Zomba, population 
     approximately 50,000.
     
     In a national referendum in June 1993, Malawi voted for a multi-party 
     democracy. For 30 years prior to an election that followed on May 17, 
     1995, Malawi was a one-man, one-party state. President for Life Dr. 
     Hastings Banda and the Malawi Congress Party (MCP) ruled Malawi. 
     Bakili Muluzi was elected president in the country's first democratic 
     multi-party elections since Malawi gained its independence from 
     Britain in 1964. Muluzi's United Democratic Front (UDF), won 84 seats 
     in the 177-member Parliament. Dr.  Banda's MCP won 55 seats. The other 
     major party, the Alliance for Democracy (AFORD), won 33 seats. The 
     Constitution, which passed hours before the elections, provides for a 
     strong presidency, and an independent legislature and judiciary. 
     Election results showed the regional strengths of the three major 
     parties, UDF in the south, MCP in the center, and AFORD in the north.
     During Dr. Banda's rule, people were "detained," imprisoned for little 
     or no reason, others lost their lives or property and other rights and 
     were afraid to speak out publicly or even privately. One person I 
     spoke freely with told me that five years ago we would not have been 
     having a conversation but would have said hello and stared at one 
     another.
     
     The Constitution was drafted during the transition from iron-fisted 
     rule to democracy that took place uneventfully. (Dr. Banda, now in his 
     90's still lives in Malawi, although he and strongman John Tembo and 
     two others were tried for murder and acquitted in a trial the verdict 
     of which may be appealed by the government. He did not protest the 
     vote that ousted him from office.)
     
     Chapter X of the Constitution creates the office of the Ombudsman. The 
     Ombudsman has been working with the Ministry of Justice on a Draft Law 
     to be presented to the next sitting of Parliament that would further 
     amplify the office's powers.  The Constitution provides that:
     
     * The Public Appointments Committee of the National Assembly, Malawi's 
     parliament, will advertise and chose an Ombudsman who has sufficient 
     knowledge of the law and the workings of Government, is publicly 
     regarded as a person who can make impartial judgments, has no criminal 
     convictions and has not been bankrupt, and is not President, 
     Vice-President, a Minister or Deputy Minister, a serving public 
     officer or a member of Parliament, and does not hold any other public 
     office except those provided for in the Constitution.
     
     * The Ombudsman may investigate cases where it is alleged that a 
     person has suffered injustice and there does not appear to be any 
     remedy in court or where there is no other practicable remedy.
     
     * The decisions and exercise of powers by the Ombudsman are reviewable 
     by Malawi's High Court on application of any person with sufficient 
     interest in a case the Ombudsman has determined.
     
     * The Ombudsman shall have the power to subpoena the attendance of any 
     person who the Ombudsman reasonably believes is connected with any 
     investigation; require immediate disclosure of information and 
     production of documents of any kind, from any public body; question 
     any person the Ombudsman reasonably believes is connected with an 
     investigation; and initiate contempt proceedings before Malawi's High 
     Court against any person or authority not in compliance with these 
     powers.
     
     * Where an investigation reveals sufficient evidence to satisfy the 
     Ombudsman that an injustice has been done, the Ombudsman shall direct 
     that appropriate administrative action be taken to redress the 
     grievance; cause the appropriate authority to ensure that there are, 
     in the future, reasonably practicable remedies to redress a grievance; 
     direct a court to adjudicate on an issue or on the amount of 
     compensation; or refer a case to the Director of Public Prosecutions 
     with a recommendation for prosecution, and if the Director refuses to 
     proceed, the Ombudsman can require reasons for the refusal.
     
     * The Ombudsman reports to the National Assembly each year about all 
     complaints, a record of the exercise of powers in those complaints and 
     the remedies afforded applicants, and also a record of the Ombudsman's 
     general recommendations about grievances.
       
     * The Ombudsman will be a member of the Police Service Commission and 
     the Inspectorate of Prisons. The Law Commissioner (a British 
     institution, the Law Commissioner reviews and makes recommendations 
     relating to the repeal and amendment of laws) and the Ombudsman are 
     the two core members of the Human Rights Commission and propose the 
     names of the other members to the President. The Ombudsman is also a 
     member of the Nominations Committee of the Senate, which nominates 32 
     of the 80 members of the Senate who must then be confirmed by a 
     two-thirds vote of the sitting members.
     
     The Draft Law currently gives the Ombudsman a very broad jurisdiction.
     Under it, he could investigate:
                             
     * Any violation or infringement of fundamental rights and freedoms, 
     abuse of power, unfair, harsh, insensitive or discourteous treatment 
     of Malawians.
     
     * The functioning of the Civil Service Commission, the Police Service 
     Commission, the Prisons Service Commission, the administrative organs 
     of the state, the defense force, the police, the prison service in 
     failure to achieve balanced structuring of services or equal access to 
     the recruitment or fair administration of such services.
     
     * The over-utilization of living natural resources, the irrational 
     exploitation of non-renewable resources, the degradation and 
     destruction of ecosystems and failure to protect the beauty and 
     character of Malawi.
     
     * Any practice or action by any person, enterprise, and other private 
     institution where a request or complaint alleges a violation of 
     fundamental rights and freedoms.
     
     * Corruption or misappropriation of public money or property by any 
     official.
     
     He may also investigate any act by national or local authorities that:
     
     * Abolishes or diminishes fundamental rights and freedoms.
     
     * Is in conflict with any law or the common law.
     
     * Is unreasonable, unjust, unfair, irregular, unlawful or 
     discriminatory.
     
     * Is based on a wrong interpretation of the law or facts.
     
     He may also look at complaints that:
     
     * A law or other matter is being administered in a manner not in the 
     public interest.
     
     * The duties or functions of national or local authorities are being 
     performed in an incompetent, dishonest or irregular manner or not 
     being performed.
     
     * National or local funds are being dealt with in a dishonest, 
     irregular or improper manner.
     
     * Any person is being enriched in an unlawful or improper manner by 
     the acts or omissions of national or local authorities.
     
     The Draft Act also requires complaints be in writing, provides for 
     confidentiality of communication between inmates and the Ombudsman, 
     allows government authorities to refer matters to the Ombudsman for 
     investigation and further defines the rights of access the Ombudsman 
     has to records and testimony of witnesses, amplifies the powers the 
     Ombudsman has to resolve conflicts and make reports to Parliament, and 
     provides penalties of fines and/or imprisonment for up to 12 months 
     for violations of the act.
     
     During my visit, I made a number of recommendations to the Ombudsman 
     about changes to the Constitution and the Draft Act. The most 
     important ones are that the Constitution be amended to eliminate 
     review by the High Court of the Ombudsman's decisions and exercise of 
     powers and that the Ombudsman not serve the government of Malawi in 
     any capacity other than Ombudsman. Court review could be a serious 
     drain on the office's limited staff resources.  Serving on three 
     commissions and the Nominating Committee puts the Ombudsman in the 
     position potentially of having to investigate himself or people with 
     whom he serves on these commissions. I suggested that if the 
     Constitution is not changed, the Ombudsman give complainants a 
     choice--complain to him or to the commissions on which he sits, but 
     not both. And I also suggested the Ombudsman not take complaints about 
     the actions of the commissions of which he is a member, regardless of 
     whether he participated in the specific decision.
     
     I also made recommendations that he seek changes in the Draft Act to 
     establish how the Ombudsman's terms and conditions of employment be 
     established, to create the post of acting ombudsman to ensure the 
     office functions in his absence or inability to serve, clearly 
     authorize investigations without requiring complaints, prohibit 
     political activity by the Ombudsman and staff and limit outside 
     employment, extend prohibitions on violating confidentiality and 
     protections against liability and court testimony to former as well as 
     current staff, provide that a complaint to the Ombudsman does not 
     extend any statutes of limitations, require complaints be lodged in a 
     reasonable amount of time after the act complained about takes place, 
     and require preliminary confidential reports of investigations to 
     agencies and others criticized.
     
     The early part of my visit was spent traveling from Lilongwe first to 
     Blantyre, where the Ombudsman gave his first press conference, and 
     then to Zomba to see Parliament and lunch at the Ku Chawe Inn, high 
     above the Zomba plateau, and then to Lake Malawi where we stayed at 
     the Nkopola Lodge and held some lengthy discussions about staffing the 
     office, how to recruit and what kinds of experience to seek in 
     investigators. We also traveled to the northern region driving 
     alongside Lake Malawi and stopping in rural areas to visit some of Mr. 
     Chirwa's relatives and driving north to Nkata Bay and Mzuzu where we 
     spent another night before returning to Lilongwe.
     
     I met formally and informally with a number of government officials, 
     including the head of the National Compensation Tribunal, an 
     organization established in the Constitution to compensate those who 
     lost property and other rights and benefits during the Banda regime, 
     justices of the High Court and other courts, attorneys, human rights 
     activists, the High Court Registrar (similar to the administrative 
     director or chief court clerk), members of the National Assembly, 
     several government ministers, journalists and executives of 
     non-governmental organizations.
     
     I also met twice with a sub-committee of the Donor Community.  Malawi 
     depends heavily on aid from countries such as the US, the United 
     Kingdom, France, Germany, South Africa, Japan and other organizations 
     such as the European Union and the United Nations Development 
     Programme. Some estimates are that the percentage of the national 
     government's budget that comes from donor nations is above half and 
     some said significantly above half.  The diplomatic representatives of 
     those countries and organizations have formed a donor community 
     committee to coordinate their efforts as much as possible so that 
     money is allocated reasonably and repeated requests for information 
     and action are not made by different organizations.
     
     A working group sub-committee has been formed and I met with it twice, 
     once early after I arrived to inform the group about my work with the 
     Ombudsman and his staff and shortly before I left to brief them on 
     what I had done and where I saw things heading in the future.
     I also met with U.S. Ambassador Peter Chaveas on two occasions and 
     briefed him about my work.
     
     During my visit, I came to understand why Malawi is called "the warm 
     heart of Africa." The people are open, warm, and respectful.  On a 
     number of occasions, I discovered that a warm thank you and a bright 
     smile was responded to with an even warmer thank you and brighter 
     smile. Everywhere I went, everyone I met was greatly interested in 
     what I was doing and in the work of the Ombudsman.
     
     My trip to Malawi occurred during the country's summer, which meant a 
     fair amount of rain (fortunately for the country, which had suffered 
     drought conditions for the three previous years). I had the 
     opportunity to see the countryside green and to observe extensive 
     fields of maize, tobacco, sugar cane and peanuts, the main exports of 
     Malawi. All of the agriculture is done with human labor and a hoe. It 
     is not hard to imagine how greatly the nation's fortunes would 
     increase with agricultural mechanization.
     
     Also during my visit, I came to realize that ombudsmen in emerging 
     democracies are like the canaries miners used as early warning when 
     the air in the mines was unfit to breathe. Dead canaries alerted 
     miners to unsafe air. Once the atmosphere of democracy is poisoned, 
     the ombudsman will likely be one of the early victims. As long as the 
     atmosphere in a democracy is healthy and free, the ombudsman will 
     function well and continue to sing. When I told this to Mr. Chirwa and 
     other guests at a farewell dinner for me, he responded he would have 
     to go down into the mines.  I answered, "No, you are already in the 
     mines."  I wished him a long, happy, healthy singing career.
     I was sorry to leave Malawi, having established a number of close 
     friendships in a short time, and eager to return to see how the 
     Ombudsman fares in this emerging democracy.
     
     Best,
     Dean Gottehrer
     
     ______________________________________________________________________
     Dean M. Gottehrer                                 deang@cruzio.com
     902 Escalona Drive
     Santa Cruz, CA  
     95060-3451
     408-425-4688 (Voice)                              408-425-8147 (Fax)
     _____________________________________________________________________


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