President faulted on appointment

President Peter Mutharika flouted procedures laid out in the Communications Act when he recently appointed Malawi Communications Regulatory Authority new director general Andrew Kumbatira.
The irregularity puts Kumbatira in a difficult position where his mandate and legal legitimacy as Macra’s boss can be questioned, legal and governance experts have said.

 
While the Act provides that the Minister of Information shall, on recommendation of the authority’s board, appoint the director general, Kumbatira’s appointment early this month was made by Mutharika and without the involvement of the authority’s board.
States Chapter 3 of the Act on the establishment of Macra: “…The authority shall consist of a Chairman and six other members (9) the minister shall, on recommendation of the authority, appoint the director general of the authority, who shall be responsible for the direction of and supervision over the work and staff of the authority.”
But Macra’s most recent board, whose tenure of office expired early last month, did not recommend Kumbatira’s appointment, according to former board chairperson Martha Kwataine.

 
“I cannot answer on behalf of Macra because our mandate expired on August 8, 2014 and at that time we did not make any recommendation for the appointment of the new director general,” she said.
Minister of Information, Tourism and Culture Kondwani Nankhumwa said the matter had already been referred to the Attorney General for a legal opinion after former Macra director general Charles Nsaliwa challenged his redeployment.

 
“There is nothing much we can say on the matter. After Mr Nsaliwa wrote the comptroller of Statutory Corporation to challenge his redeployment to my ministry [as technical adviser] on the basis that it was a demotion, we referred the matter to the AG and we are waiting for the legal opinion.”
The minister said Nsaliwa’s letter to the comptroller also raised the issue of the absence of a board at Macra when the new director was appointed.
The Attorney General, Kalekeni Kaphale said in an interview he needed to check the General Interpretation Act before he could competently comment on the matter.
Kaphale, however, said he was not worried if all protocols were not followed in the hiring of the new director general because an incoming board may ratify the appointment or not.

 
“The error, if it was indeed made, is not fatal or irreversible,” he said.
But lawyer Justin Dzonzi, who is also Justice Link executive director, said where the appointment was made by Mutharika, the question of procedural correctness does not even arise “because the appointment is outright unlawful on the grounds that it was made by someone who does not have the legal [mandate] to appoint.”
“In administrative law, where a person purports to do a thing for which he does not have the legal power to do, the action is void and ineffectual.
“It is legally treated as if it was never made in the first place. So, the appointment would lack all legal legitimacy and cannot in law confer on the appointee the mandate and authority of the office in question,” he said.

 
Dzonzi said the way forward on the matter is for anyone concerned to go to court and challenge the appointment through judicial review.
He said it was unfortunate that Kumbatira is the one to face the brunt of the illegal appointment and not the appointing authority.
Another lawyer Shepher Mumba, who is also a part- time corporate governance lecturer at University of Malawi (Unima) described the appointment as illegitimate.
“[The President’s] role is to appoint board members of the Authority. Obviously, if the law was not followed in making the appointments, such appointments are unlawful and illegitimate,” said Mumba.
Anthony Mukumbwa, a corporate governance expert said the appointment of a chief executive officer of a parastatal without the involvement of the board would only take place in a situation where the company is going through a crisis.

 
“The President can only appoint a new CEO without recommendations from the board in the event something is going wrong at the company, otherwise the best way to handle the matter is to quickly appoint the board to appoint the CEO,” he said.
Mukumbwa, however, said historically, appointments in statutory corporations have always been political which, he said, was not good for corporate governance and affects the performance of the companies.
Kumbatira refused to comment on the matter when Nation on Sunday sought his reaction on Friday.