Will law end our problems? The practical answer is no. Law does not work on the mind. Reason and common sense do.
The road to Zomba is small, bumpy and makes a boring, yet wonderful journey. Soul soothing sights are spread almost throughout the road.
Children going to school in the morning, hundreds of them walking, barefoot, from Kachere to Limbe Cathedral where two primary schools are housed. They walk in pairs, trios, even more than quartets. Some walk alone. But most of them look ahead as if appreciating some distant future.
The clay pots market on the Magomero part of the road. This is a market whose wares remain on stalls 24 hours a day. All kinds of stories do rounds, from the pots cannot move without the owners to pots turn into wet clay when stolen.
And the big trees on Namadzi River, a body of water that is the boundary between Chiradzulu and Zomba. They are big mibawa trees planted over 50 years ago. They make the river look natural. They give hope, as well, especially to impatient travellers from Blantyre who get a physical feeling that they are about to reach the municipality of Zomba.
The bridge area is a cool place, always; trees prevent direct sunlight from hitting the soil and thus make it a comfortable place for domestic chores. But this might no longer be the case. Some of the trees have been cut down and people are making timber right in the river.
"They bought the trees from the Forestry Department," said Alines Lino, a resident of Namadzi who uses the river almost everyday. "They followed the law."
This may be true. Forestry officers have procedures for selling natural trees like mibawa. The timber business is legal, too.
But it doesn’t make common sense to cut down trees just on the bank of a river, especially scarce species like mibawa. Yet the timber makers are protected by law and this is the challenge because laws are supposed to reflect people’s reasoning abilities, common sense, hopes and fears.
Does the felling of trees in a river make sense? Reason and common sense say trees and all forms of vegetative cover protect river banks from being washed away. The trees protect soil erosion and conserve water, partly making a river like Namadzi flow almost throughout the year.
But, it seems, law (as on paper) does not worry about soil erosion. Law does not worry about natural beauty. Law does not think about rainfall. Reason and common sense do.
The felling of trees at Namadzi, however small an event this may be, is a powerful indication of declining reason and common sense.
Over 20 years ago, felling trees in strategic places was legal. But common sense kept the trees standing. Now there is a heavy reliance on legal instruments as the basis of policy and life, even in the face of clear evidence to the contrary.
What has happened to Malawi? Why do reason, logic, common sense and truth seem to be diminished in the way we are making important decisions?
These questions have answers. What is worrying is that no one is asking them. There is, of course, some mention of declining reasoning, but only a handful Malawians are worried and their concern is on the death of a reading culture. What they don’t say is that this declining reading life is part of the reasons behind low reasoning abilities and bringing an end to common sense.
Faith in the power of reason was, long time ago, the basis for life. Now the belief that people, being rational beings, can live happily and fairly by engaging in logical debate on the basis of evidence available instead of legal or political power is almost disappearing.
There is a strange emphasis on litigation. People, it seems, have lost what first President Dr Hastings Kamuzu Banda called "contact and dialogue". This was just a name. In reality, Kamuzu was encouraging reason over litigation and violence. Sadly, everyone is rejoicing in suing. Further, what is legal has become good. We have forgotten that not all that is legal is moral.
The United States (US) has been a super power for more than a century. The foundation of the US was on reason and common sense. Founding leaders said wise words that remain inspiring even today.
This is no longer the case now. US leaders—from president to senators, even people—have abandoned reason and common sense, instead they have become a litigation nation, spending more money and time in courts and legal issues than research and development and there are real fears that the country is losing its position of world leadership.
Perhaps the US is at tertiary stage in a life span of a nation. They have almost everything—although they don’t accept that their public health service is falling apart.
Malawi, a developing or primary level country, is walking the US-way of law and litigation instead of running on reason, common sense and ideas.
We are adapting laws meant for countries that have developed and are seeking nothing but pleasure. We have abandoned our sense of umunthu and gone for the supremacy of law over umunthu. Our democracy is a product of the courts instead of being a system of government based on common good realised from meaningful debate.
Alliance for Democracy (Aford) has political conflicts that can be resolved at a political meeting. But instead of employing contact and dialogue (or common sense), the party’s factions are regular visitors to the High Court.
Over a year ago, some NGOs made noise for a law on domestic violence. They celebrated the passing of the bill into law. Has the law had an impact on people? Not necessarily. Rape and defilement are still reported to police stations, almost everyday. The solution is not in law, it is in umunthu and this is influenced by reason and common sense, not law as some activists want the nation to believe.
Some laws don’t make common sense at all. This confirms what one law professor likes to say, that law is unfair. The Constitution’s definition of marriage is a typical example. In Section 22(5), our supreme law recognises marriage "at law, custom and marriages by repute or by permanent cohabitation".
This means you or your sister or brother, even son or daughter, can be living with someone without making the union formal, that is to be recognised as marriage culturally.
The argument is that this protects those who love one another but are prevented from marriage by parents due to tribal differences, for example. The other reason is that this law helps women who are cohabiting in case of death of the man, often the bread winner.
Fine. But this section of the Constitution works on a wrong assumption, that culturally there is no room for bargaining. If all of a person’s relatives are against marriage, perhaps, it is good to listen. In fact such situations are rare. Some uncles and aunts might have no problem with a prospective wife or husband and a young man or woman can use such people to negotiate with those opposing a marriage.
There is a lot of bargaining room, culturally. The Constitution does not reflect this. Instead, it suppresses contact and dialogue or reason and common sense.
Section 65 which has been in courts for over a year is now over yet not over. The recent ruling is just a verdict, not a solution to the political problem that is Section 65. We have forgotten the world around the section, why and how this amendment was effected. It came into being because of a political problem. Political party leaders were supposed to discuss and identify a political solution.
That could have been common sense and, as Malawians are realising, this sense has deserted the streets and is rare. The result is that public discourse has become less focused, less clear and less reasoned. Has our discourse ever been focused, clear and reasoned?
Yes, but to an extent. Long before Malawi fell under the British, people reasoned together under trees. They debated, agreed and disagreed. Chokolo, for example, was for the good of the people arrived at using logical arguments. (This explains why we are losing the war against the practice because we are fighting a logical agreement of society using law instead of common sense and reason.)
Colonialism partly affected the existence of reason and common sense. The independence under one party era didn’t help matters, either.
The Malawi Congress Party (MCP), like any dictator, assumed that Malawians were not rational beings to make independent choices. The Executive arm of government decided what people should know. Yet, despite that lack of political reason and logic, reason prevailed on matters social and economic.
This was evidently present during the transition from one party to multiparty democracy. People reasoned together, mostly peacefully whether one was for or against one party system.
It is important to mention that during the transition, the print media was the market place of ideas. There were, at one time, over 30 newspapers in Malawi.
This is important and needs elaboration because the flourishing radio industry and the coming of television have, somehow, contributed to the scarcity of reason and common sense.
Forty years ago, media expert Marshall McLuhan described television as a ‘cool’ medium contrasting it with the ‘hot’ medium of print. Then, it was hard to understand because, as scholars explained later, the source of ‘heat’ in McLuhan’s metaphor is "the mental work required in the alchemy of reading".
But McLuhan was almost alone in recognising the passivity associated with watching television at the expense of activity in parts of the brain associated with abstract thought, logic and reasoning.
Former US vice-president and professor of journalism Al Gore, says the vividness experienced by television viewers is different from the vividness in readers.
In his senior thesis, Gore studied the impact of television on the balance of power among the three branches of government in the US. He pointed out the growing importance of visual rhetoric and body language over logic and reason, meaning television appeals more to emotion than reason. The same can be said of radio.
There is a visible lack of analysis of issues, opinions and ideas on television and radio, that kind of analysis that newspapers are giving readers. (There is a move from hard news to analysis. Did you see Ephraim Munthali’s commentary on the cost of Section 65 in The Nation.)
The remedy for our democracy is not simply a new constitution (as important as that is) or civic education (as Patricia Kaliati will now be educating us all), but the re-establishment of a genuine democratic discourse in which individuals can participate in a meaningful way—a conversation of democracy in which credible ideas and opinions from individuals can powerfully attract logical responses.
Public broadcasters can do well by balancing their programmes to reflect the thinking of Malawians. One sided programming reduces the reasoning of listeners from that of human beings to mechanic beings.
Law does not haunt the conscious of people. Reason and common sense do. Law cannot stop people from cultivating on hills. Reason and common sense can stop deforestation. Section 65 cannot stop MPs from crossing the floor. Reason and common sense can analyse every situation as it comes. Law cannot stop rape, defilement and chokolo. Reason and common sense can stop the vices.
The place of reason and common sense should be repaired. Malawi needs to repair its public forum starting in our homes then move on to school and churches/mosques.
Television and radio need to go beyond hard news—hard facts. The Executive branch of government has actively promoted the strangling of reason, sanity, debate and common sense by allowing MBC and TVM to practise basic journalism: the government has said kind of journalism. The Executive does not gain anything by monopolising public media.
Instead, the country loses all and this is seen in the creation of Ministry of Information and Civic Education, a desperate attempt at restoring reason and common in Malawians—solving a problem we created.
Rule of law? Yes, but lawyers should not hold the country at ransom. What about rule of reason and common sense? This is much needed from the President down to people felling trees at Namadzi.