- Appointed deputy director for FIU
- Only director has such powers—Legal experts
There is a backlash to the recent Presidential appointment of the deputy director at Financial Intelligence Unit (FIU) with analysts describing it as “invalid” and challengeable in the courts.
“That appointment is ultra vires, and not valid. It is a violation of the Act,” an anti-money laundering expert lawyer, Jai Banda, said on Thursday.
Malawi Law Society (MLS) secretary Khumbo Soko also observed that the President has no power to appoint a deputy director for FIU, saying the power to make such an appointment has been reserved for the Director under the Act.
“It is her and her alone who can competently exercise powers of appointment under the Act,” said Soko in an email response on Wednesday.President Peter Mutharika in June 2016 directed the appointment of Kennam Kalilani, a low-rank projects analyst in grade 7 at the Reserve Bank, to the position of deputy director. In the RBM hierarchy, the highest position is grade 20 while grade 1 is the lowest.
An offer letter, signed by Chief Secretary to Government George Mkondiwa, reference number 20/03/17 and dated June 28 2016, which has also gone viral on social media, reads:
“I write to inform you that it has pleased His Excellency the State President to second you as deputy director at the Financial Intelligence Unit (FIU) with effect from June 16 2016.
“Under the secondment, Reserve Bank of Malawi as your employer will continue paying salary and other benefits you are entitled to and FIU will pay any difference that may be payable to you at the grade of deputy director level at FIU.
“The FIU will, however, be required to reimburse to Reserve Bank of Malawi (RBM) the salary and benefits payable to you by RBM during the period of secondment on a quarterly basis.
“It would, therefore, be appreciated if you could wind up your affairs at the Reserve Bank of Malawi and arrange to report for duties at the Financial Intelligence Unit as soon as possible.”
FIU director Atuweni Juwayeyi-Agbermodji confirmed Kalilani’s appointment, saying he reported for duties on August 1 2016.
The Money Laundering, Proceeds of Serious Crime and Terrorist Financing Act stipulates in Chapter 13(1) that the President shall appoint the Director of the Financial Intelligence Unit subject to the approval of the Public Appointments Committee and that the Director shall be the chief executive officer of the Financial Intelligence Unit.
On the other hand, Section 14 (1) of the Act empowers the FIU director to make own appointments and employment of the persons that are suitably qualified and experienced and the Minister of Finance may approve such persons.
University of Malawi political scientist Boniface Dulani said the President’s decision is a clear sign of his disregard for the law.
“Ordinarily, an appointment such as this one that has been done against the law would be null and void, but it takes someone to move the courts to make a declaration on the legality of the appointment, Dulani said.
“Sadly, as a country, we never make such follow-ups and this appointment will stand, despite being obviously illegal,” Dulani added.
He observed that the President makes “all manner of appointments” because of the excessive powers heaped upon his office.
“This, in my view, is a hangover from the one-party, life-presidency era, where the Head of State was expected to know everything and all of us had to follow,” he said.
He said although various electoral candidates, including the incumbent, have made promises to reduce presidential powers, they soon forget their promises to reduce the powers.
Kalilani, who has worked for RBM for 18 years, according to his Linkedin, is related to Minister of Gender Dr Jean Kalilani. n