President Peter Mutharika has courted significant controversy after unilaterally appointing new heads for two critical public institutions, the Anti-Corruption Bureau (ACB) and the Malawi Revenue Authority (MRA), a move legal experts and civil society leaders have immediately described as rregular and illegal.
The appointments of Gabriel Chembezi as ACB Director General (DG) announced by Chief Secretary Justin Saidi on Friday and that of Felix Tambulasi as MRA Director General were announced a little earlier by the same chief secretary.
A later statement from the Ministry of Justice attempted to clarify that the appointments were in an “acting capacity”, though this was not indicated in the original announcement.
But legal scholars argue that the President has bypassed the mandatory procedures set out by the respective Acts, amounting to a clear disregard for the rule of law.
University of Malawi law professor Garton Kamchedzera said in an interview yesterday that the Malawi leader had failed to respect the rule of law, a development he said breeds impunity.
He said Mutharika has no legal authority to make such appointments without following the processes established by the relevant Acts.
“By law, the DG position at ACB must be advertised, and the President can make an appointment only after the results and consequent recommendations are presented to him.
“The DG for MRA is under the authority of MRA’s board. If the government believes there is no functioning board, it must constitute one before appointing a DG.
“A DG at MRA should not be in office without a functioning Board. In short, both appointments can be set aside as null and void for want of authority and procedural irregularities,” said Kamchedzera.
Another legal scholar, Benedetta Malunga questioned why Mutharika appeared to be rushing to make appointments irregularly, warning that such actions amount to flouting the very laws the President is sworn to uphold.
Said Malunga: “For the ACB director, the law is clear. The Ministry of Justice must advertise the position, and applicants should be interviewed.
“The top three candidates are then submitted to the President for selection, and the chosen candidate must be confirmed by Parliament through the Public Appointments Committee. Only after that confirmation can the person assume office as ACB Director General. The same applies to the MRA. The law is clear about the role of the board in appointing the Director General. What needed to be done was simply to follow the law.”
National Advocacy Platform chairperson Benedicto Kondowe said the President erred in the recent appointments, stressing that the law does not grant him unilateral power to make such decisions.
“The law is clear that the Malawi leader cannot unilaterally appoint the ACB Director General or the MRA Commissioner General. Such short-cuts, even if motivated by expediency, risk unjustifiably casting doubt on the integrity and legitimacy of the appointees themselves no matter how competent or qualified they may be.
Upholding legal safeguards is, therefore, indispensable to maintaining the rule of law, transparency, and public confidence in the country’s governance institutions,” said Kondowe.
Centre for Social Accountability and Transparency executive director Willy Kambwandira also criticised the appointments, describing the process as lacking transparency.
He said the move raises concerns about the independence of the two institutions and called for a thorough and lawful appointment process.
Chief Secretary Justin Saidi was yet to respond to our questionnaire as we went to press.
