President Peter Mutharika’ has courted controversy after appointing a board for the Malawi Environmental Protection Authority (Mepa) when the law that establishes the parastatal is yet to come into force, a decision that has been deemed illegal.
The establishment of the board, in the absence of an enabling Act, has attracted condemnation from legal experts who say the President was ill-advised to appoint an illegal entity that cannot function.
Mepa is established under the Environmental Management Act (2017), which was assented to in April 2017, but has not yet been gazetted— meaning it is not yet in force, meaning the country is still using the Environment Management Act, 1996 (No. 23 of 1996) in regulating and “conservation of biological diversity, access to genetic materials, discharge of hazardous waste and in declaring environmental protection areas.
Director for the Department of Environmental Affairs (EAD) Tawonga Mbale confirmed that the Act is yet to be gazette, but could not explain the legal implication of having the board in the absence of the law whereas State House spokesperson Mgeme Kalilani was not immediately available to comment on the matter.
“It is true the law is not yet gazetted. But on your legal questions, allow me to consult. I will come back to you,” said Mbale but she never came back to us despite several reminders.
This is not the first time that Mutharika’s appointment has courted controversy as earlier this year his decision was challenged in court after he appointed some commissioners of the Malawi Human Rights Commission (MHRC) which were never submitted by any organisation as required by the law.
Few weeks ago, the Office of the President and Cabinet, announced appointment of board members for parastatals, including Mepa, which has Benjamin Kaneka as chairperson.
Other members are Dr. Judith Moyo, Robert Kafakoma, Dr. Candida Nankhumwa, Dr. Marlene Chikuni, and Christopher Mwambene with Secretary for Natural Resources, Energy and Mining, Comptroller of Statutory Corporation and the Solicitor General as ex-officials.
Comptroller for Statutory Corporation Stuart Ligomeka had not responded to our questions submitted to him some five days ago while both the Solicitor General Gertrude Hiwa and Secretary responsible Matanda did not pick up our calls on several attempts.for Natural Resources Patrick
The Attorney General (AG) Kalekeni Kaphale had not yet responded to our queries as we went to press, but a former AG, who refused to be named, said the procedure is clear that a law has to be gazetted first.
“It is strange that the President appointed the board when the law is not yet gazetted. He knows the law and he knows better that such a board is illegal. If the authority was established in the old Act, that would be a different case, but it’s established under the new Act which is not yet operational. The procedure is straightforward that the law has to be gazetted and have the minister responsible appoint a commencement date,” said the former AG.
These views were shared with two lawyers from Ministry of Justice and Constitutional Affairs and another from the Law Commission.
“This law is not yet gazetted neither has the minister appointed the commencement date. One can challenge this decision. Technically, such an authority is non-existent because the law that establishes it is not yet in force. This is a more reason government is using the old Act because the new one is not yet operational,” argued one of the lawyers.
Malawi Law Society (MLS) honorary secretary Martha Kaukonde also queried the decision.
“On the face of it, it does not look fine because the board is supposed to be appointed for a corporation whose Act is operational. The Act creates the Authority, if the Act is not gazetted it is not operational and an appointment of the board could have been made inadvertently,” she said.
When contacted for a comment, Minister responsible for Environment Bintony Kutsaira promised to come back to us, but he never did for over a week.
Special Assistant to Chief Secretary to Government, Grace Hiwa, said she had asked Matanda to give us a response whereas Secretary for Natural Resources did not pick our calls on several attempts.
Government spokesperson Mark Botomani asked for more time.
As expected, a member of the Mepa board confided in us that due to issues raised, the board has not met since appointment and so far there has been no orientation.
Said the board member:“Since appointment, we have not met neither have we been briefed of what is expected of us. Ideally, this happens immediately after appointment. I think they are waiting for the law to be gazetted first and then have us start work. I suspect the delay has something to do with legal issues.”