By Sundu Madise
Section 4 of the Communications Act establishes the Malawi Communications Regulatory Authority (MACRA) is a an organisation capable of suing or being sued in its own name. It is what is called a body corporate. However, because it is set up by statute (law), it is also called a statutory organisation, despite the fact that its vehicles do not have SC in their registration numbers. The President has the power to appoint [board] members of MACRA. The Board of MACRA is then empowered to appoint a Director General (section 19 of the Communications Act).
Section 20(2) deals with situations when the DG may be removed from office. Interestingly, these are:
(a) incompetence;
(b) misconduct that brings the Authority into disrepute; (c) undischarged bankruptcy;
(d) non-disclosure of interest;
(e) if he has been convicted by a competent court of a crime which is punishable with imprisonment without an option of a fine;
(f) involvement in active politics ;or
(g) incapability to perform his duties as Director General by reason of mental or physical infirmity.
Notice, if you will, section 20(2)(f). Aren’t we a beautiful country?
Section 20(3) ensures that rules of natural justice and fair labour practices apply in that the DG can only be removed from office after he/she has been given an opportunity to be heard. The right to be heard is a long standing principle based on the Latin Maxim “audi alteram partem” which means “listen to the other side” or “let the other side be heard as well.”
Section 138 of the Communications Act also establishes the Malawi Posts Corporation (MPC) as a body corporate and therefore also a statutory corporation. The President also has the power to appoint the Board of the MPC. Unlike MACRA, the appointed Board members of MPC have to be confirmed by the Public Appointments Committee of Parliament [section 140(1)(a)]. According to section 145(1) of the Act, it is the Board of the MPC that has the power to appoint the Postmaster General (PMG). The PMG may be removed from office in a similar manner as the DG of MACRA and provided he/she has been given an opportunity to be heard.
I have read somewhere that the MACRA DG, Mr. Godfrey Itaye has been removed as DG and has been transferred to MPC as PMG. I am not sure if Mr. Henry Shamu, who is the PMG has also crossed the floor to MACRA. In any event, if it were true, that Mr. Itaye has been transferred to MPC as PMG, Mr. Shamu would have no position and would have to move. But is all this legal and lawful?
The simple answer is that it is not.
Unfortunately it is not the first time this has happened.
At one point, Mr. Andrew Kumbatira was PMG. He was ‘transferred’ to MACRA as DG while Mr. Godgrey Itaye became PMG. Then the two were swapped and Mr. Itaye became MACRA DG while Mr. Kumbatira returned to PMC as PMG. It was wrong and unlawful then, and it is wrong and unlawful now.
The power to appoint the MACRA DG lies in the MACRA Board and no one else.
The power to appoint the PMG lies in the MPC Board and no one else.
The MACRA DG and the MPC PMG cannot be swapped or transferred in between their posts. So, whosoever has purported to do these transfers has no authority at law and such use of power is beyond their mandate. In law the term that is used is “ultra vires” and makes the decision potentially liable to judicial review. In judicial review, the high court is called upon to review the lawfulness of a decision or action made by a public body (including a person). In any event, the position of MACRA DG and MPC PMG are not political positions. And they should not be. Both the DG and PMG ought to be recruited through a rigorous and competitive exercise where the best candidate with the technical, professional and management skills outshines his/her competitors. Anything else is a sham, a false façade.
So what is likely to happen? Unless challenged, this unlawfulness will continue. The MACRA DG and the MPC PMG will keep quiet to save their jobs. Poor souls. They are after all, pawns in a bigger game. But they would have participated in an illegal franchise. And so will the person who has purported to effect such transfers. Because of the ‘lucrative’ nature of the MACRA DG position, any person moving from MPC is unlikely to complain. Given the fact that MPC is financially struggling and surviving on taxpayers’ money, the person transferred to MPC is the one likely to be aggrieved and feel the financial pinch.
My bet and my gut feeling tells me that the two will swallow any emotions and do nothing. They will remain quiet, and may even say they are grateful.
This is, after all, Euthini.
