Governance and legal commentators have faulted bureaucracy in selection and appointment of officers to lead oversight institutions, saying it is negatively affecting the offices when they fall vacant.
The commentators have observed that officers’ approval that have to go through the office of the President and then Parliament, which has diverse political representation, has consequences despite having qualified candidates.
The commentators were reacting to an inquiry from The Nation in the wake of developments such as the lack of a substantive Auditor General (AG) for over 18 months since the office fell vacant, the absence of boards of directors in parastatals and lack of commissioners at Malawi Human Rights Commission (MHRC).
AG Stevenson Kamphasa has not been replaced since June last year when his contract expired. Thomas Makiwa was appointed acting AG, a position which only allows for six months, beyond which Section 184 of the Constitution will be breached.
In an interview on the developments, Chancellor College-based governance analyst Henry Chingaipe attributed the prolonged vacancies in oversight institutions such as NAO and MHRC to political interference.
He said: “As we have said before, the best arrangement for the appointment of people who lead oversight institutions is to leave out the Executive branch in the selection and appointment process.
“When you get a vested political Executive, the selection and appointment process can be used to cripple oversight institutions to protect very narrow interests that militate against the national interest.”
Catholic Commission for Justice and Peace (CCJP) national coordinator Boniface Chibwana said the office of the AG is critical and crucial to national accountability mechanism; hence, the country cannot afford to have the office vacant for long.
“This is clearly crippling the efforts towards ensuring accountability and transparency in public finance management. It is important to note that having somebody occupying the position in an acting capacity for unnecessarily long renders the credibility and legitimacy of this institution questionable such that discharging of the office’s duties as per the Public Audit Act 2018 can be legally challenged.” he said.
Chibwana added that this is a dangerous situation, especially considering the numerous cases of irregularities and improbity in public finance management at both central government and local authority levels.
On delays to appoint commissioners for the MHRC, he said it shows how casual and unconcerned the political leadership is on protection and promotion of human rights in the country.
Said Chibwana: “This is a step backward in the consolidation of good governance in our country.”
Government appointed Joseph Nangantani as AG, but Parliament is yet to assess the appointee.
In June, government through Ministry of Finance, Economic Planning and Development spokesperson Davis Sado said processes to appoint a new AG were completed and only awaited Parliament’s approval.
However, when Parliament met in September, the issue was not discussed.
In a separate interview, Chancellor College law professor Garton Kamchedzera said besides violating the Public Audit Act by not appointing the substantive AG, government has not been diligent in financial prudence as required by Section 13 of the Constitution.
He said: “In the wake of Cashgate, rising corruption and perceived mismanagement of public resources, one would have expected the government to treat the due appointment and confirmation of an Auditor General as a matter for primary action when that office falls vacant.
“When the six months ended, any exercise of authority in the capacity of acting Auditor General has been unlawful and therefore, unconstitutional, under Section 12(b). Either government has deliberately wanted not to have a proper person in the position, or government does not want to recognise audit as a key governmental function, or government is incompetent in complying with its own laws.”
In an earlier interview, Institute of Chartered Accountants in Malawi (Icam) chief executive officer Francis Chinjoka Gondwe said Makiwa has been acting illegally and government has not respected its own laws.
He said Icam is disappointed that it has taken long for the AG to be appointed and said government has flouted its own laws.
Said Gondwe: “The law has not been respected on this appointment and it has taken long. Makiwa is now operating illegally. The acting Auditor General is not supposed to stay in the office for more than six months according to the Public Audit Act.”
When asked on the status of the AG’s appointment, Leader of the House Kondwani Nankhumwa said he was positive that in February Parliament will approve the new appointee.
According to the new Public Audit Act (2018), in the event of a vacancy in the office of the AG, the Minister of Finance shall publish in the Gazette and at least two newspapers of widest circulation in Malawi and carry out shortlisting and interviews in order to select a minimum of two and a maximum of three candidates for the position.
Upon receipt of applications, the ministry shall immediately constitute a selection panel to interview the shortlisted applicants within 14 days of the selection and forward the names of the selected candidates to the President for nomination.