There is a certain type of constitutional farce that only Malawi can stage with complete seriousness. The actors are familiar: a Speaker determined to defend Parliament’s authority, an Attorney General convinced he is defending the law, and a judiciary left to untangle a dispute that perhaps ought never to have reached this point.
The latest instalment concerns Attorney General Frank Mbeta’s decision to join court proceedings arising from an injunction that halted the formation of 12 parliamentary committees established to investigate the affairs of selected statutory bodies.
The injunction was obtained by private citizen Austin Mseka, but the real constitutional intrigue began when the government’s chief legal adviser entered the fray.
Whether the committees were lawfully constituted, and whether the injunction should stand, are matters for the courts. The more intriguing question is why the Attorney General felt compelled to insert himself into a dispute that increasingly resembles a contest between the executive and the legislature.
That is the argument advanced by Peter Makossah, a UK-based Malawian-trained lawyer and journalist, writing in The Daily Times. His criticism is as notable for its restraint as for its substance. This, he argues, is fundamentally a constitutional matter rather than a political contest, and ought to be treated as such.
It is difficult to dismiss the point. The Attorney General occupies a peculiar position within the architecture of government. He is appointed by the executive but expected to advise on the law with a degree of detachment that gives the office its legitimacy. The danger is not necessarily that he has taken the wrong side, but that he risks appearing to have taken a side at all.
Appearance matters in constitutional affairs. Public confidence in institutions is built not only on impartiality but also on the perception of impartiality. Once a government lawyer is seen to be intervening in a dispute involving Parliament’s ability to scrutinise public institutions, questions inevitably follow.
Makossah’s broader warning is equally persuasive. Parliamentary committees are instruments of scrutiny, not courts of law. They may investigate, summon witnesses and expose failures in public administration, but they do not determine criminal guilt. Those powers belong elsewhere. A Parliament that forgets this distinction risks turning inquiry into theatre.
Yet there is another danger. If parliamentary investigations can be derailed whenever they become politically inconvenient, legislative oversight risks becoming little more than ceremonial.
Democratic accountability depends upon institutions being allowed to perform their designated functions, even when their inquiries prove uncomfortable to those in power.
What makes the dispute particularly unsatisfactory is the lack of detailed public explanation from the principal actors. The court will eventually pronounce on the legal questions.
Until then, much of the debate rests on interpretations offered by commentators rather than comprehensive arguments from the Attorney General’s office or the Speaker himself.
That leaves Malawians watching a constitutional drama in which the leading characters remain frustratingly silent. The result is a spectacle that is at once serious and faintly absurd: a legal contest over who gets to investigate public institutions, with the government’s chief lawyer stepping onto the stage and inviting questions about whether he should have remained in the audience.
The law will, in time, provide its answer. Whether the politics will is another matter altogether.
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