You have faulted some of the appointments President Joyce Banda has made. What are these?
Personally, I faulted the manner in which the President terminated the services of the director general of Malawi Broadcasting Corporation (MBC) as well as the manner in which she appointed his replacement. The problem with the above events is that the power to hire and fire the director general of MBC reposes in the board and not the President.
The powers of the President, in so far as MBC management is concerned, are limited to the appointment of the board of directors. Furthermore, modern corporate governance rules on employment of senior public officers require open and competitive recruitment. This is also consistent with Malawiâ€™s national procurement principles espoused by the Public Procurement Act.
It follows from the above that at the minimum, the board of directors should have advertised for the position and allowed qualified candidates to compete for the position. This would also ensure the operational independence of the office holder, unlike when such officers are hand-picked. It is very unlikely that a person employed under the current circumstances can discharge his duties with professional impartiality and integrity.
Banda is Malawiâ€™s fourth President. Why are you saying this now?
This has been said so many times to all the post one-party presidents. So, it is not correct to say that it is being said for the first time. You will recall how appointments at the Electricity Supply Corporation of Malawi (Escom) and Blantyre Water Board (BWB) sparked controversies following arbitrary hirings and firings.
Is there any turning point, considering that this practice has been there for such a long time?
Principles of respect for rule of law require that the only correct way to discharge a public function is to do it within the confines of the law. These appointments simply show that our presidents feel entitled to break the laws of the land when it suits them. Otherwise, there are very clear procedures and laws governing literally every manner of discharging public duties at all levels. I really do not see any excuse why any president should not follow the law.
Constitutionally, who is supposed to appoint people into these positions?
The appointment of the director general of MBC, just as it is true of most other statutory corporations, is not governed by the Constitution in the strict legal sense. These matters are governed by specific acts of Parliament that establish and set up the particular parastatal. So, in the case of MBC, the appointment is governed by the Communications Act 1998. Establishment and management of MBC is provided for in Part IX, sections 86 to 96. Section 92(1) provides as follows:
â€œThe board of MBC shall appoint a director general, who shall be the chief executive officer of MBC and, subject to the general supervision and control of the board, shall be responsible for (a) the day to day operations of MBC; (b) the management of funds, property and affairs of MBC; (c) the administration, organisation and control of the staff of MBC.â€
This provision is clear enough so much so that I do not see in it any ambiguity which may lead the President into thinking that s/he is the one mandated by law to do the appointments.
Can anything be done, in case she is in the wrong? Or are you saying she is taking advantage of her position?
Generally speaking, where a matter is by law governed by a set procedure, any person who attempts to do it differently does not create any legal consequences. In this sense, the removal of the director general by the President would be null and void in law. This means that legally, the director general still remains an employee of MBC until such a date when the board may terminate his services. So, the right thing to do now is for the board of MBC to terminate the employment of the director general in accordance with his conditions of service and labour laws of this country.
If the law treats that exercise as null and void, then there is nothing else advantageous about that. So, no I do not see how you may call this taking advantage of her position.
What is the best practice in a democratic government?
Democracy is premised on the strict observance of rule of law. Every public officer can only do those things which the law mandates him to do. The discharge of public functions is governed by specific laws and everyone must simply abide by those, that is the best practice in a democratic government.
Can the President be held accountable for this? How?
Yes and that is precisely what you and me are doing right now by reminding her that she cannot do what she purported to do. The law mandates the board of MBC to so and that is the only legal way of doing what she purported to do. Furthermore, her decision may be legally challenged by the affected party by way of judicial review process. If the court finds that the President did have the power to fire the former director and hire the current director may be quashed accordingly.
Any last comment?
It is important to understand here that I am not against the Presidentâ€™s prerogative to choose people she trusts and desires to work with. I am only against the use of illegal means of doing this. The President must lead by example and she best does that by an overt and strict adherence to the rule of the law.