Declaration of Assets: Leadership gap looms

A public law scholar has warned of power vacuum in Malawi if public officers, including the President, fail to declare their assets by August end.

While Parliament’s Public Appointments and Declaration of Assets Committee says officials await appointment of an assets director to disclose their wealth, academic Danwood Chirwa argues the wait is needless and will only bring constitutional crisis.

“If no public officer makes a declaration, there will be a major constitutional crisis. Not only will the whole Cabinet be liable to prosecution, dismissal and disqualification from holding public office for three years; the whole Parliament will be similarly affected,” said Chirwa, head of University of Cape Town’s Public Law Department.

The South Africa-based Chirwa, responding to an e-mail questionnaire, said on Wednesday the new assets law is in force and must be respected with or without the assets tsar.

Moreover, he added, the Republican Constitution already empowers the Speaker to receive declarations, hence the need to comply before the expiry of the three months window, which is expected to expire August end.

–Committee of Parliament–

He noted that the Public Officer’s Assets, Liabilities and Business Interests Declarations Act is governed primarily by the Constitution—sections 88 A for the President and members of Cabinet and 213 for other elected and public officers—which, according to him, means the new law is merely meant to provide the supporting structure for the implementation of the provisions.

“It is clear from section 213 [4] of the Constitution that the main body responsible for monitoring implementation of these provisions is a committee of Parliament appointed by Parliament. Thus, it is not surprising that the Constitution clearly requires the declarations to be submitted to the Speaker of Parliament within three months from the date of election or appointment to the office. The Speaker is in turn expected to forward the declarations to the appropriate officer designated by the standing orders of Parliament.

“It is not an excuse for the failure by any appointed or elected public officer to submit the declarations within the prescribed time to say that he or she did not know where to submit the declaration. The Constitution clearly says that declarations must be submitted to the Speaker of the National Assembly, who may forward them to the director [where one exists] or to the responsible committee of Parliament prescribed by the Constitution,” Chirwa said.

In fact, he said, the Act suggests that the powers of the director are merely to receive the declarations and ensure that they comply with the law after which, the director is expected to forward the declarations to the monitoring committee, which is the same body envisaged by the Constitution, said Chirwa.

–No director–

Given that there is currently no director, the Speaker is expected to submit the declarations to the relevant committee of Parliament—in this case, it is the Public Appointments and Declaration of Assets Committee— as prescribed by the Constitution.

“Failure to submit the declarations or knowingly submitting a declaration that is inaccurate or misleading has serious consequences. Unless there is a reasonable cause for the failure to submit the declaration within the prescribed time, [an] officer is liable to dismissal from the public office. Submitting a false or misleading declaration constitutes an offence and attracts the further penalty of dismissal from office. In addition to these penalties, an officer who does not submit the declaration on time is liable to disqualification from public office for three years while the one who submits a misleading or false declaration is disqualified for seven years. ‘Public officer’ under this Act is defined broadly to include elected and appointed officers and to remove any doubt, a list was appended to as a schedule to the Act specifying who these are,” said Chirwa.

In an interview on Tuesday, Lington Belekanyama, chairperson of the Public Appointments and Declaration of Assets Committee, said his body will be conducting interviews for the assets director this week.

“On Monday [tomorrow], the committee will be confirming the names of the [short-listed] candidates and the interviews will be conducted on Friday [August 15],” said Belekanyama, who also said a formal appointment should be finalised by August 20.

“It is the previous Parliament that delayed the appointment of the director. We only assumed office mid June and we have set up steps, at least, that the office must have a director by August 20,” he said.

Belekanyama said the mandate of his committee ends at appointing the director, after which, he said, the assets tsar will make decisions on the implementation as stipulated in the Act that established the office.

“It is true that by this time the director should have been in the office and people should have started declaring their assets. [But] the Act empowers the director to set dates for individuals to go and declare their assets and that dates were supposed to be within the three months of the appointment. The legal gaps that will follow will be dealt with by the director,” he said.

–Role of Justice Minister–

But Chirwa observed that while the Assets Declaration Act establishes the office of the director, some of the powers this Act bestows on the official and the Minister (of Justice) appear to be inconsistent with the provisions of the Constitution.

“For example, this Act says the director is responsible for the enforcement, regulation and monitoring of declarations, including to receive declarations from listed officers and to recommend rules to the Minister for the proper implementation of the Act. These and other provisions of the Act appear to outs the powers of the Committee of Parliament designated as the body entrusted with the responsibility of monitoring the implementation of sections 88 and 213 of the Constitution. They could either be held to be unconstitutional or interpreted so that they are in tune with the Constitution,” he said.

At the meeting with the Public Affairs Committee (PAC) in May 2014 before the election, candidate Peter Mutharika and the now ruling Democratic Progressive Party (DPP) committed to declaring their assets within the specified time.

However, up to now, the President, his Cabinet and members of Parliament have not yet made their wealth and business interests public, citing the absence of the assets director.

But Chirwa said: “It is very crucial that the letter and spirit of these laws are complied with, more so that we have just come from a period of extreme recklessness as far as public resources are concerned. The new government needs to move away from the so-called ‘za Boma syndrome’, which depicts the mindset that what belongs to government does not belong to anyone; hence; it can be abused, converted or wasted without any feelings of remorse.

“The history of the ruling party itself [DPP] is murky regarding corruption and public rapine. Thus, its image will be given a welcome and major face-lift if it takes decisive action on the Cashgate and enforces the Assets Declaration Law in its totality. The President and his Ministers must lead by example and see to it that the rest of the public officers follow suit.”

–Mutharika will declare his assets–

In an interview on Thursday, Minister of Information, Tourism and Civic Education Kondwani Nankhumwa said President Mutharika will “try as much as possible” to declare his assets before the elapse of the 90 days period, saying at this moment ,the documentation of the Head of State’s assets is almost ready.

“Once the President has finished the compilation and documentation of his assets, he will seek advice from the Attorney General on the way forward if the director will not be in the office at the time of the expiry of the three months,” he said.

In an interview on Saturday, Attorney General Kalekeni Kaphale said when government asks him for his legal opinion, he will provide it.

Nankhumwa said the matter was delayed by the Public Appointments and Declaration of Assets Committee of Parliament who are expected to recruit the director for the office.

The renewed push for assets declaration first gathered momentum after the reportedly unexplained accumulation of more than K60 billion in assets in 2012 by the late president Bingu wa Mutharika from a reportedly declared K150 million eight years earlier.

More impetus was added after Cashgate, which saw K13 billion missing within three months during the Joyce Banda administration and following The Nation’s exposure of an interim audit report that revealed that more than K92 billion may have been siphoned between 2009 and 2012 under the Bingu regime.

While Malawi had an assets law for years, observers said the previous legislation was weak as it was silent on making the declared wealth public; had no monitoring mechanisms and appeared to only zero in on elected officials, yet, according to Cashgate revelations, technocrats, maybe the facilitators, get rich schemes that have cost government tens of billions of kwacha through fraud and corruption.