By Duncan Mlanjira
Concerned citizens have written a petition to the Public Procurement and Disposal of Assets Authority (PPDA) to remove the expression that states that all bids submitted for national competitive bidding must give preference to 60% Indigenous Black Malawians and 40% to others.
The concerned citizens, who are of Asian origin, coloureds, whites and people living with albinism, contend that the wording ‘Indigenous Black Malawians’ that is in the circular borders on racism.
The petition says: “In essence, the expression ‘Indigenous Malawian’ is a misnomer and is incapable of being meaningfully defined and should be completely removed and forgotten, not only in this poorly thought out definition but in all future legislation that relates to Malawians.
“That this has reared itself at this point in Malawi’s history is a clear indication that even our Parliamentarians are sadly misguided.
“This calls for a desperate need for the subject of citizenship and equality to be part of the civic education necessary in this Tonse Government Administration so that Malawians are not spoken of as Azungu or Amwenye, even by children in the villages who are conditioned by parents to view others as a different species.
“It, therefore, goes against the grain for government to use racist methods in attempt to level the economic benefits for the less privileged members of society. This can be done in a much more inclusive, well-meaning manner,” says the petition addressed to the Director General.
It has been copied to the Speaker of Parliament; the Ombudsman; the Attorney General; the Minister of Justice; the Minister of Education and the Minister of Information.
Prominent people among the signatories include, Rafik Hajat, Robert A. Jamieson, Roy Thornicroft, Brian Bowler, Krishna Achutan, Habiba Osman, Carver Bhima, Robert Coombes, Rolf Ramesh Patel, Mary Bapu, Alice Maida among others.
The circular, dated 1st July 2019, was addressed to all principal secretaries, chief executives of parastatal organisations, district commissioners, heads of departments as well as heads of all public institutions and copied to the Chief Secretary, Secretary to the Treasurer as well as the Auditor General.
The clause of the circular, referenced PPDA/01.22, is taken from Section 44 (10) of the Public Procurement and Disposal of Public Assets Act as amended by Parliament in August 2017 and the petitioners contend that this provision of the law runs counter to the express terms of the Republican Constitution.
They quote Chapter IV of the Constitution that specifically describes equality when it says: “Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic of social origin, disability, property, birth or other status or condition”.
The petitioners say: “Great exception, therefore, is taken at the tone of this circular as it discriminates against anyone that does not appear to be either indigenous or black enough to participate in business on an equal footing in Malawi.
“This position is further entrenched in Section 29 and 30 of the same Chapter of the Republican Constitution on the right of citizens to participate fully in economic activity as well as to enjoy the right to development.
“The contention, therefore, is that this Section of the Public Procurement and Disposal of Assets Act promulgated by Parliament in 2017 runs counter to the express provisions of the Constitution in Chapter 1: Sections 4 and 5, which state that ‘any Act of Government or any Law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid’.
The petitioners further quote the law as saying a ‘black person’ means a dark skinned person who originates from Africa or whose ancestors originated from Africa and it shall include a coloured person and ‘citizen’ shall have the meaning ascribed in the Malawian Citizenship Act.
A ‘coloured person means a person who was born from at least one indigenous black Malawian parent and that ‘indigenous black Malawian’ means a Malawi Citizen who is an indigenous person and a black person.
As such, the petitioners contend that the word Indigenous is left hanging as it means a person originating or occurring naturally at a particular place in Malawi and who is not a settler or a colonial.
“Although the Preliminary Provisions try to clear up the issue of who is meant by Black or Indigenous, the issue is that many people in Malawi do not necessarily have black parentage and the explanation does not apply to them although they are true citizens.
“This despite the fact that they are neither settlers nor colonialists and therefore they are barred from being recognised as black or indigenous and therefore would not be allowed to freely conduct business in Malawi.
“The interpretations are nebulous in the extreme, and generally confusing. It is difficult to understand why such terms are still in use in Malawi like ‘coloured’, which is expressly forbidden in the Republican Constitution as it borders on creating a separate racial grouping, something that even the first President Dr. Hastings Kamuzu Banda forbade.
“We are not in an apartheid situation like South Africa where race distinctions were, and still are encouraged and are very stark. We believe this is a Malawi that should have the same racial distinctions as Mozambique, Zambia and Tanzania.”
The petitioners recommends that any mention of black or of indigenous be removed from the PPDA Act and any other Act or law in Malawi as it runs counter to Constitutional provisions.
They further quote Article 1 and 2 of the Universal Declaration of Human Rights which Malawi ascribes to, that states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood (Article 1).
And that: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Article 2).
“Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”