PricewaterhouseCoopers (PwC), a business advisory and audit firm, has proposed an amendment to the Constitution to reduce the powers of the President in the hiring and firing of the Auditor General.
PwC made the proposals in a presentation on proposed amendments to the Constitution and Public Audit Act of 2003, which would ensure that the legal frameworks in which the National Audit Office (NAO) operates are in line with the International Standards of Supreme Audit Institutions (ISSAI).
Making the presentation on behalf of PwC, Elton Jangale, a lawyer by profession, told the two-day NAO International Symposium in Lilongwe that the second ISSAI principle provides that a country’s laws should clearly state the criteria for the removal of the Auditor General.
However, he observed that Section 184(6) of the Constitution gives unilateral powers to the President to remove the AG.
Said Jangale: “The risk with this is that it is prone to abuse. The proposal is that Section 184(6) should provide for a two-stage process; removal by the President and confirmed by two thirds majority of Parliament.”
He explained that in the current scenario, the independence of the AG is undermined by the contradictory provisions within the same Section 184 of the Constitution as it is inconsistent with provisions in the Public Audit Act.
“For example, the Constitution orders the AG to submit reports to Parliament through the Minister [of Finance] under Section 184 (2), the AG’s appointment is made by the President and agreed by members of Parliament [MPs] present and through a vote, but the AG’s removal is made by President only,” Jangalesaid.
“It is only up to the President to decide that the AG should be removed because he has been inconsistent, compromised in his duties or in incapacitated and aged.”
He said the inconsistencies with the Public Audit Act, which states that the AG should report directly to the President and Speaker of Parliament, pose a risk, especially with highly sensitive audits such as the ongoing forensic audit into the accounts dating back to 2009.
Said Jangale: “It is a real risk in Malawi, especially with the forensic audits which the AG has been carrying out. International best practice requires that the Auditor General reports directly to Parliament and not through the Executive.”
He said even Principle 5 of ISSAI states that AGs should not be restricted in reporting the results of audits.
Remarking on the proposed amendment to the Constitution, chairperson of the Public Appointments Committee (PAC) of Parliament, Lingson Belekanyama, said the Constitution should be reviewed to clarify reporting lines for offices such as that of the AG.
Director of Public Officers Declarations Chris Tukula also weighed in on the issue, saying as an agent of Parliament, it was only proper that the Auditor General should report to the Legislature to avoid mischief on the part of the Executive.
Other risks to the AG’s independence which Jangale noted are that Parliament is mandated to fix the AG’s salary while the Public Audit Act states that the AG’s salary should be reviewed at two yearly intervals and not to be reduced.
Jangale also found that the AG’s financial independence cannot be guaranteed as stated ISSAI Principle 8 as the Constitution is silent on AG’s funding.
“The risk there is inadequate budget appropriation as budget is subjected to scrutiny and review by Treasury before tabling in Parliament and as we know budget appropriation does not directly translate to budget allocation by Treasury,” he said.
Ministry of Justice and Constitutional Affairs legislative counsel Kelious Mlenga told the meeting that the Public Audit Act would be brought to Parliament in June 2016 once all the procedures after amendment have been finalised.
However, he bemoaned that his office has a large workload of laws undergoing review which could not all be completed at once but the office had formulated a work plan.