malawi land bill

In respect of the land bill, I am not taking any sides in this debate because I need further information. However I ought to say, in terms of the law and practice, the government cannot and should not do everything alone and I agree. (The government needs our support as citizens). In the present case, all that is required is that in promulgation of important laws as this, proper consultations and popularization of the law and its potential implications, among those who would be heavily affected by it, be held in earnest and honest manner.

In a constitutional democracy as ours, participatory democracy in terms of which the public should be encouraged to participate in decision making, is important. The citizens should be encouraged to participate directly where feasible in issues of governance including the law making process. this can be done through the usual government organized public consultations and requests for written submissions on issues that are up for enactment or change.

Public awareness campaigns and consultations are paramount because there are limits on representative democracy that are recognized widely. Therefore, not only must the National Assembly facilitate public involvement in the legislative processes they should allow media presence whenever milestones are reached to spread the news wider in an honest way and should conduct business in an open manner, allowing the implications of any new laws to be known to those likely to be affected.

Of course we know it is not possible for the legislature to speak to everyone individually, but reasonable steps must be taken to ensure public involvement. In practice, the test of reasonableness ought to be an objective one. For instance one has to look at the facts before them and decide whether the legislature had actually acted reasonably in the enactment of the law, or whether the steps taken were reasonable and can force us to conclude that they acted reasonably in their attempt to encourage public involvement. The evidence so far on this land bill is inconclusive.

Some factors to be considered can relate to the nature and importance of the legislation in question, and the intensity of impacts (adverse or positive) that the legislation may have on the public. Issues of practicality including the costs for the extra efforts to encourage public participation, as well as the available time, all may be considered in determining reasonableness ie whether the legislature took reasonable steps to involve the public.

For instance if the law in question would almost negligibly impact on the public, for example because the law is almost trivial, then low involvement of the public may be considered as reasonable especially where an attempt to do more would prove too costly in terms of money and time. But in the case of laws concerning the only thing Malawi has ie land, perhaps we can agree it is non-trivial and requires more thought. It has of course not escaped my acknowledgement that there should always be a balance between involving the public and maintaining the role of the legislature as a law making branch of government, but it doesn’t appear that consulting a bit more or popularising it a bit more would have eroded the legislatures ability to perform their functions.

So, the questions we may want to ask may include: did the legislature do enough consultations and did they popularise the results of the consultations? Did the legislature have the bill discussed widely before it tried to formalize it into law? Does a land bill seat at the same level as other ordinary bills? In what esteem do people hold land and its laws? Would spending more time engaging the public both at the beginning, in the process and towards the end have been the ideal?

You may find that perhaps those asking questions may have a basis….not because the law will negative land holding and security, but because the public may not have been engaged at reasonable levels and are unaware.

The implication of this is that, where the due process appears not to have been followed reasonably, the citizens can challenge lawmakers through various means including the court process, which is not only a reasonable expectation, but also a core tenet of a constitutional democracy.