Parliament’s Business Committee never saw it coming and never discussed it as an agenda item. The Cabinet Committee on Legal Affairs never discussed it and neither was it tabled before a full Cabinet.
The Attorney General (AG) too was not aware of it and neither was the Minister of Justice nor the Minister of Finance.
So, how did Bill number 22 of 2021 Loan Authorisation to allow government borrow 98 360 000 euro (about K93 billion) to finance construction of houses for security agencies such as the Police and Malawi Defence Force (MDF) get gazetted under the AG’s hand?
This is the mystery of Bill number 22 of 2021 that somehow found itself on the Order Paper on the last day of the Budget Meeting of Parliament on July 9 2021 before it was silently removed after the scandal came to light.
Our investigations show that a senior presidential aide at State House—and by his own off the record admission—pressurised officials at the Ministry of Justice, Treasury and Parliament to cut corners and have the Bill tabled.
Procedurally, the Office of the AG has to clear every government Bill before it goes to Parliament while Cabinet also has to approve the same. Neither of this happened.
Parliamentary Standing Order 121 states that the AG has to sign government Bills that Capital Hill originates as does the Attorney General’s Memorandum on Drafting of Bills in Malawi.
Stages in processing a Bill also stipulate that once a Bill is cleared by Cabinet it has to be published and thereafter placed before the House, normally 21 days before the House meets.
The procedures further state that “introduction of any Bill requires written notice. The notice is meant to give MPs sufficient time to digest the Bill, consult their constituents and other stakeholders on the Bill”.
Thereafter, the title of the Bill to be introduced is then placed on the Notice Paper, states the procedures.
The development is also against the principle of the Public Finance Management Act (Section 3) which empowers the Minister of Finance in matters such as of Money Bills to be responsible to the National Assembly and Cabinet not only in preparation and presentation of economic and fiscal policy, but also in “ensuring internal controls and guidelines exist for the use of public money and public resources”.
But this was never the case with this Loan Authorisation Bill to allow government borrow about K93 billion from Bank of Baroda, London Branch, for construction of 3 253 residential houses for various security institutions.
In an interview last Wednesday, Minister of Justice Titus Mvalo, whose ministry is responsible for drafting of all government Bills and chairs the Cabinet Committee on Legal Affairs, confirmed that he is not aware of the Bill and has no idea how it got gazetted let alone found its way onto the National Assembly Order Paper—an outline of business to be discussed in Parliament.
He said: “We are not aware of the Bill and that is why it was taken out of the Order Paper. How did it find itself in Parliament? That is a difficult question”.
On whether he bothered to check how a Bill he was not aware of found itself on the Order Paper, Mvalo said: “I did not know where to start from because even the Minister of Finance was not aware about it yet it is a Money Bill. We were also not aware of where it came from.”
We could not get hold of Minister of Finance Felix Mlusu the whole of last week for comment.
The Bill that we have seen was gazzetted on July 7 2021—two days before it appeared on the Order Paper—well short of the notice period required before tabling it.
Reads in part the Bill: “The object of this Bill is to authorise the Minister of Finance, on behalf of the Government of the Republic of Malawi, to borrow from the bank of Baroda, London Branch in the United Kingdom, sums of money amounting to Ninety Eight Million Three Hundred and Sixty Thousand Euros (Euro 98 360 000) to finance construction of the Three Thousand Two Hundred and Fifty Three (3253) residential houses under the National Housing Project for various security institutions in Malawi.”
Like any other government Bill, the Bill in question bears the name of former AG Chikosa Silungwe.
But in a separate interview last week, Silungwe disowned the Bill, saying he was not aware of it formally or informally, stressing that a Bill going to Parliament without the knowledge of Cabinet is next to treason.
He said the process requires that once the Ministry of Justice has drafted a Bill, it is taken to a Cabinet Committee on Legal Affairs and, if approved, it is then referred to the full Cabinet chaired by the President. He said this never happened.
Parliament spokesperson Ian Mwenye said in an interview that instructions to publish money Bills come from the Executive branch of government and that they are not discussed by the Business Committee.
He said: “Once received, any published Money Bill is not discussed by the Business Committee since they are all standard and by publication of the Bill, it means Ministry of Finance will have finished all necessary processes which do not involve Parliament.”
Mwenye said Bill 22 of 2021 was properly published in the Gazette and this was sufficient reason for Parliament to place it on the Order Paper.
But his version contradicts the procedure Solicitor General Reyneck Matemba and Silungwe outlined to The Nation as both indicated that all Bills, including loan authorisation ones, go through the Business Committee for approval before placing them on the Order Paper.
Matemba said procedurally, once a Bill has been drafted based on instructions, it is sent back to the requesting ministry, department or agency (MDA) to look at it and, if the MDA has no issues, they are supposed to take it to the AG for clearance before it goes to a Special Cabinet Committee which later refers the same to the full Cabinet.
He said after approval from Cabinet, the Bill goes back to Ministry of Justice to present it in an appropriate format and then sent to government print for gazette and thereafter all copies are sent to both Parliament and the concerned MDA.
In this case, the Ministry of Lands was the concerned MDA, but efforts to talk to the ministry proved futile.
Former Speaker of Parliament Henry Chimunthu Banda, who is an expert in parliamentary procedure, also said it is strange that the Bill found itself on the Order Paper without the approval from the Business Committee.
He said: “The Business Committee chaired by the Speaker looks at all that has been presented to Parliament for possible discussion for approval. Mind you, it is not just for noting, but approval, meaning they spend time to scrutinise what sort of business must be on the agenda [Order Paper]. I find this case very, very strange and it should never be.”
Chimunthu Banda, who also served as Leader of the House and Cabinet minister, expressed shock that a Bill that was never sanctioned by Cabinet got into Parliament. He said that even where government wants to act with urgency, procedure is still followed such that instead of having a full Cabinet meeting to approve the Bill, the President can seek a waiver.
Leader of the House Richard Chimwendo Banda could not indicate whether the Bill was discussed at either Cabinet or Business Committee meetings, saying it was not tabled in the House because it was not ready.
He said if government did not have strong checks and balances, the Bill would have been tabled, but it was removed because they know which business must go into the House for discussion.
A trail of correspondence between Treasury and Ministry of Justice, both e-mail and memos, show that instructions to prepare the Bill came from Ministry of Finance debt and aid director Nations Msowoya who wrote the Solicitor General, on behalf of the Secretary to Treasury, on June 21, 2021.
Msowoya confirmed issuing the instructions, saying it is a normal internal procedure.
Ministry of Lands, the executing agency for this Bill, has also not responded to us why this Bill was not taken to Cabinet for approval.
When contacted, minister responsible Kezzie Msukwa said he was not in a position to take an interview while the questionnaire sent to the ministry’s public relations officer Enock Chingoni is yet to be responded to.
Push from State House adviser?
Some sources at Ministry of Justice and Treasury claimed that they received pressure/ instructions from a presidential adviser at State Hous.
We talked to the adviser, but we have withheld the name because he did not want to be officially quoted. He admitted pressuring Treasury and Justice officials to expedite the Bill because, he said, he noticed lack of interest from those who were supposed to champion the process.
The adviser said the discussions with the financier were concluded during the Democratic Progressive Party (DPP) administration, but there has been some “sabotage to have the same implemented by the new government”.
He said: “It looks like [my actions] interference, but generally this was to help the President who really wants to see the project starting as soon as possible.”
Meanwhile, the Human Rights Defenders Coalition has expressed shock that a Bill with such a huge financial implication and that commits the government in such a way got itself into the House through the back door.
HRDC chairperson Gift Trapence has since called on the Tonse Alliance to institute an investigation into the matter, which he described as criminal in nature.
In December last year, President Lazarus Chakwera launched a housing project which will see government construct 10 000 houses. Out of this number, MDF and Malawi Police Service are expected to have 4 000 houses each with 1 000 houses for Prison Service and Immigration Departments.