By Ralph Kasmbara SC
Back to basics: The law grants power to Public Affairs Committee of Malawi Parliament (PAC) to confirm the director of Anti-Corruption Bureau (ACB). It does not say PAC should produce a report. Where the law wants the whole house to confirm an appointee the law dies not shy from saying so.
In other words in the wisdom of the National Assembly and the President the confirmation of director of ACB is PAC business and only PAC should do that. Any attempt to arrogate that power to the National Assembly must have some statutory underpinning. So far I have found none.
In the words of Justice Kenyatta Nyirenda any public officer or institution that seeks to exercise power must do so under some law.
Now the Constitution allows parliament to regulate it’s practice and procedure. That is what we call adjectival or procedural law. Now procedural law cannot override substantive law. Indeed the power to confirm a public officer is not a matter of parliamentary procedure.
What has happened to Martha Chizuma is not a first. Other equally qualified persons such as Mrs Nangwale, Atuweni Juwayeyi, Agrina Mussa etc were rejected by PAC. Equally men like Prof Chimphamba were not confirmed by PAC. It is not the end of the world.
Again it is not fair and right to ask the President to resubmit Martha Chizuma name. Why not? The law dies not grant the President that right. Its what judges would call abuse of Parliamentary process.
Just like in court you are not allowed to have a second bite at the cherry so goes with confirmation process. Its one of those sad realities.
Examples abound from USA and Nigeria where there is also confirmation process by legislature of certain executive appointments.
As courts and scholars have emphasized the process is political and not justifiable. So what’s the way forward?
If the public is so minded to bring Martha Chizuma back the solution lies in amending the law.
The only caution is this: it’s bad practice to change the law to suit a particular individual or situation. Framers of the constitution had good reason for legislating for checks and balances.
They had good reason for opting for PAC and not the whole house.
Even the speaker erred big time to table a motion in the house when parliament had not been officially opened by the president.
PS. Wakusina nkhutu ndi mnasi. Kauzyanga ni fwiti yayi.
Disclaimer: The views expressed in the article are those of the author not necessarily of The Maravi Post or Editor