Constitutions without Constitutionalism, Government without Governance: Critique and Hope for Malawi

Abstract

At the risk of oversimplifying this rather comprehensive and multi-disciplinary examination of the state of democracy and governance in Malawi, Beyond Impunity speaks directly to what Okoth-Ogendo, more than three decades ago, dubbed the ‘African political paradox’ of having ‘constitutions without constitutionalism’. This paradox consists in a ‘commitment to the idea of the constitution and rejection of the classical notation of constitutionalism’. With the independence period in mind, Okoth-Ogendo observed that, while the political elite in Africa were sincerely committed to the idea of their states having a constitution, they rejected the need for constitutionalism. Their acceptance of the idea of having a constitution was based on the recognition of the need for legitimacy to govern internally and for asserting the sovereignty of their respective African states to external actors. The commitment to adopting constitutions did not extend to respect for the constitution in practice. Taking the 2019 and 2020 presidential and parliamentary elections and the presidential election case as a launch pad for examining the state of democracy and governance in Malawi, Beyond Impunity shows that Malawi remains a prominent example of a country struggling with the problem of having a progressive constitution with a questionable record of constitutionalism. As will be shown, the book provides strong evidence suggesting that the country has an abundance of laws but its adherence to the rule of law has been inconsistent; and that, since 1994, Malawi has had regular elections and yet several governments that resulted from those elections lacked political legitimacy. Furthermore, while Malawi can claim to have a plethora of institutions of governance and accountability, no consistent institutional culture of good governance and accountability has emerged; an admirable