BLANTYRE-(MaraviPost)—When it comes to matters of law, Malawi is blessed abundantly, and we do not expect leaders to make silly legal errors, yet they do because of either lack consultative approach to issues of national interest or executive arrogance as it has been always the case with the country’s presidents since 1994 when Malawi reverted to multiparty democracy after spending 31 years in the hands of dictator Kamuzu Banda.
Just few weeks after Lazarus Chakwera of the Malawi Congress Party assumed the presidency following a landslide victory in the June 23 fresh presidential election; the president has made some appointments that have attracted a barrage of criticisms from the general public.
Chakwera’s 31-member cabinet (very interesting number! The party rule 31 years before UDF took over) was heavily criticized, and consequently labeled ‘family’ cabinet by the international media BBC and Aljazeera for including members from the family in the cabinet—Ken Kandado and his sister Khumbizie Kandoda a case in point. However, the despair did not last long as the president defended his choice by coming up with a thesis on the definition of ‘merit’. After all, he did not flout any law: he has a legal mandate to appoint cabinet ministers, and even if he picked ‘Chief Justice’ Steven Maseya he could come up with a suitable definition of merit.
That aside, president Chakwera has been found guilty of flouting the law in making appointments of the Malawi Revenue Authority (MRA) commissioners. According to all legal minds in the country and beyond the borders, the country’s president has breached the law, but the country’s vocal activists have pretended to be living in Mars as Chakwera as is being treated as a new-born baby boy following the ejection of the ‘arrogant’ ex-president Peter Mutharika.
Section 17 (1&2) of the MRA Act empowers the board to make the appointment of the Commissioner General with approval from the minister and the board to appoint deputy commissioners.
But despite many legal minds and activist sympathizing with the new president, there is one Malawian law expert in South Africa. He is a rare germ and he calls a spade by its name when it comes to acting contrary to the rule of law. Surely, he is guided by the principle of Aristotle that “the rule of law is better than the rule of any individual.”
Rest I forget, Danwood Chirwa was also one of the fierce critics of the former ruling Democratic Progressive Party (DPP) regime under Peter Mutharika.
Writing on his Facebook yesterday, professor of law at the University of Cape Town Chirwa, argued that the MRA appointments are illegal and hence whatever decisions the commissioner general makes now will be invalid.
“As Biziwick’s appointment is unlawful, he cannot take any valid decisions, whether these are decisions concerning MRA employees or tax-related decisions affecting taxpayers. He can also not bind the MRA in transactions involving third parties. So, we have a critical institution over which the cloud of illegality hovers. There’s is no justification for knowingly dragging a whole institution down the path of illegality.”
If the president’s unlawful appointment was in good faith to combat crime at the tax collecting body as some ‘erroneously’ suggests, Chirwa is of the view that Chakwera could appoint investigators to do the job.
“Investigators are the authorised agencies to combat crime. Now there are unauthorised individuals who are probably tampering with the crime scene and documents. This doesn’t aid the effort to reboot and start on a clean state of lawfulness.”
To concur with Chirwa, president Chakwera is like a person is equipped with unlicensed gun to deal with suspected thugs—Fighting evil with evil. But two wrongs do not make a right, it is said.
However, there are some legal minds saying the decision a necessary breach of law. Yes, you have heard well; a necessary breach of law. I don’t think this legal lingo existed in the previous administration. In the previous governments law was law. Any ‘Pentecostal’ interpretation of the book of law was prohibited.
But in an interview with the Nation Newspaper, University of Malawi’s Chancellor College dean of law Sunduzwayo Madise said in an ideal situation, the commissioners should be appointed by the board but in the absence of one, the President was justified to make the appointments.
He said if the appointments or the decisions of the appointees were questioned in a court of law, one may apply the doctrine of necessity, adding that in the absence of such a challenge, the decisions are valid.
Said Madise: “Strictly speaking, the President flouted the law. But I found his decision reasonable. There is no board, yes but then should we allow wrong things to go on at MRA? I would say no. So, I personally think the decision was in good faith and the courts may have to consider this if there was a challenge.”
Two weeks ago, in what appears to be a clean-up exercise, the new administration dissolved boards of 67 parastatals including MRA, with an additional three boards being added to the list on Wednesday. The absence of the board is what led to breach of law in appointing MRA commissioners.
Simple question to Madise now is: who is mandated to appoint parastatal boards?
In Madise I see a legal expert compromised with sympathy towards the newly elected leader.
Instead of backing illegality, I call upon Madise to join corporate governance experts Kamwachale Khomba and John Kamanga who have appealed to government to expedite the appointment of parastatal boards so that key operations are not affected.
Chakwera’s snail’s pace in appointing parastatal boards is not only worrisome but a latitude for the current government do fraudulent deals. In absence of the parastatal boards, it means the CEOs of the parastatals are reporting directly to the party officials. Let’s speak the truth to power as patriot Prof. Danwood Chirwa has been and continues doing.
Don’t tell me that the names are undergoing ‘rigorous’ scrutiny; memories of the cabinet are still fresh.
