2 History and Sociability
2.3 From Nyasaland to Contemporary Malawi
2.3.2 Tying these Claims to Historical Events
2.3.2.4 The Judiciary as the “Re-Individualization” of Citizenship
The rise of Judicial Power in Malawi is widely attributed to the ratification of the Malawi constitution in 1994 (Chirwa, 2005). However, countries with similar constitutions are not always typified by similar practices within the operations of their States. There is therefore a socio-historical aspect to any kind of constitutionalism just as there is the same aspect to any kind of nationalism altogether.
The performances or social actions angle of this study expresses this observation very vividly.
All social action is loaded with content derived from the society and towards the society. It is actuated with the double intent of “arguing” for its own legitimacy to its spectators while hoping to realize an individualistically motivated goal (see more on this below under “Social Theorizing the Sociology of the Malawian Society”). However, in the absence of a common objective normative thing, such as a State which is organized everywhere symmetrically by law and regulation, social action as described in Malawi begins to encompass ever expanding spaces within the public arena provided it has the backing of a discourse. As such, the stabilizing standardizations and regulations of the State become fluid codes open to manipulation (a sociological condition which could also be called “corruption”).95 It is precisely this state of flux and fluidity in the State set-up particularly in the arms of the executive and the national assembly which facilitated the hybridization of the Malawian judiciary whose function was more and more becoming one of standardizing and providing a sense of stability in the fluidity
95 Mamdani (2001) speaks of the dual judicial systems of customary law for in-directly ruling indigenous groups of natives (ethnicities) and the civil law that was accorded complete with rights and privileges to races or non-natives.
A closer reading of his positions enables us to appreciate how in the long run the systems, regulations and legislation that were meant for the application of civil law after independence became conflated with the need for parallel customary law which was not consistently systematic in its application. Thus, both the governed and the governors acquired the knowledge of how laws and their systems were ultimately manipulated by people rather than applied objectively or in the spirit of what they entailed.
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of the rest of the State setup. A newspaper survey online will show how the Judiciary, especially from the High Court upwards has gained an extraordinary trust by journalists and citizens of its impartiality and well-informed judgements. It extremely rarely encounters significant criticism from the general public that would parallel the kind levelled against parliament and the executive for instance.
The heightened performances, each blanketed by legitimizing discourse, did not only serve to enable the social acceptability of egocentric goals. Furthermore, they removed the security of maintaining entities of individual interest from those who sought to appropriate them as their own. These entities could be ownerships or possession of material as well as immaterial “goods”
of value. The judiciary therefore provided the added theatre of legitimizing the realization of specific ends when the regular performances could not outdo each other. The courts as such resolved legitimation-stalemates. This too becomes evident in the manner in which the public, including politicians who knew few limits in their politically motivated quests to maintain power, were largely unopposed to the processes of establishing of a very powerful judicial arm of government.96
This argument however is not to undermine the real societal needs for the Courts to
“legitimately” provide the settlements of claims brought by people who suffered in numerous ways under the previous regime of Banda. These are still accorded their due importance.
However, the importance of such considerations does not underemphasize the performative nature of social life in Malawi. A performative nature that was expressed as a growing need to position an organ of “normative” objectivity that would provide the basis for some kind of social order following the performances that obscured standards in the other two pillars of government;
namely the executive and the legislature. The most logical way through which such a need could consensually be arrived upon was if the Malawian people themselves, particularly the more politically and economically powerful, found it expedient to surrender some of their influence to the massive and broadly expansive powers of the courts. This surrendering of influence being motivated by the realization that most other things in the State were in great
96 See Nkhata’s (In Press) articulation of the constitutional ratification process of 1993-94 where all politicians and civil society seem more concerned with passing a constitution that elevated Judicial Power at the expense of a closer scrutiny of the nuances that would make it practical, such as the prerequisite necessity to curb Presidential powers while granting a real independence to Parliament from the executive so as to truly arrive at a practical separation of powers concept borrowed from the American constitution.
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fluidity as a result of unbounded social action supported by misappropriated “nationhood”
discourses.
Furthermore, judicial power, though very expansive is moved and not automatic. This permits for a certain measure of control on the power of the Judiciary which would allow the other spheres of social action to remain largely autonomous and unaffected. Again, Mamdani (2001) makes similar observations when he argues for instance that citizenship – a concept he uses to denote the right to access the rights and privileges of a state – is a contested space primarily because it sanctions who can or cannot lay a claim upon the valued things of society such as property and even the force of law. In this dissertation, citizenship is seen as having been an hollow concept in Malawi which is only enjoyed by those who remained overtly apolitical up until democratization when it then became a concept contested not for purposes of attaining it – for it was automatic – but rather for the purposes of saturating it with content that enabled concerned individuals and groups to make numerous legitimation claims within the social sphere. It is therefore precisely this rampant laying of claims that creates a sufficient threat on other claims of ownership over the valued things of Malawian society that requires the powerful institution of the courts to protect those claims that are already made, such as property. This power is only accepted and obeyed because it appears less arbitrary and more systematic thus making it appear predictable and hence stable unlike the powers that flow from the executive and the legislature which appear arbitrary powers like those espoused under customary law as articulated by Mamdani (2001).
In the final outcome, the ascendency of judicial power truncates in the re-birth of the individual citizen beginning the journey towards institutionally embedded and coded entitlements by eroding and fragmenting the aggregated citizens via their ability to “move” the great powers of the Malawi Judiciary. In moving the courts to halt and decide against anyone or any organ of the Malawi State, the citizen not only imposes an incontestable standard pertaining to their entitlements over various possessions and entities but also begins to ascertain the coming to the fore of the immutable right of individualized citizenship – citizenship with more political content such as to fly in the face of political leadership as well as all other actors no matter their ethnic or regional grouping, nor their numerical volume. Such a condition begins to undermine even the “we-ness” as a basis for nationhood towards a more “divided we stand” posture. This continues to occur albeit still within the discourses of “we-ness” upon which individual actions are still primed. However, this tension between “social action” and “legitimizing discourse”
would begin to cause the development of newer discourses which would also enter into public
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life struggling for their own power to categorize and legitimize social action. See more on this below under the section on “Social Theorizing the Sociology of Malawi…”
2.3.2.5 The Ambivalence of Control versus Disaggregated/Individualized Citizenship