AG stops Parliament on Buluma, SPC

The Office of the Attorney General (AG) has advised Parliament against summoning National Oil Company of Malawi (Nocma) board chairperson Colleen Zamba and former deputy chief executive officer Helen Buluma to a hearing.

Zamba, who is also Secretary to the President and Cabinet (SPC), and Buluma were scheduled to appear before Parliament’s Public Appointments Committee (PAC) today to share more light on alleged dubious fuel contracts the State-owned company was purportedly being pressured to undertake.

But in an interview yesterday, AG Thabo Chakaka Nyirenda confirmed giving a legal opinion on the issue to Speaker of the National Assembly Catherine Gotani Hara. He said his advice is based on legal principle.

He said: “Suffice to say that each committee [of Parliament] has specific legal mandate otherwise there would be chaos. The Legal Affairs Committee would be appropriate committee to interrogate into legal compliance issues on the part of the Executive branch of government.

“By way of analogy, the Industrial Relations Court is part of the Judiciary, but it cannot handle a rape case or a murder case. In the same way, a magistrate court cannot handle a murder case, so too is the Supreme Court of Appeal which cannot conduct trial.”

The AG said Section 12 (ii) of the Constitution urges all persons responsible for the exercise of powers of State to do so on trust and shall exercise such power to the extent of their lawful authority and in accordance with their responsibilities.

He said PAC cannot begin to interrogate issues of fuel contracts or an employment contract already terminated, arguing that is the domain of the Legal Affairs Committee.

But Malawi Law Society (MLS) honorary secretary Chrispin Ngunde in a response to a questionnaire said much as they do not share the AG’s line of thinking, they were yet to see his legal opinion.

He said: “Standing Order 157(a) of Parliament of Malawi empowers Public Appointments Committee to scrutinise, consider and enquire into the competence of public appointees under the Constitution and report to the Assembly.

“The SPC is a public officer appointed under Section 92(4) of the Constitution. Although, as board chairperson of Nocma she may not be performing Section 92(4) of Constitution functions, she remains a public officer who is subject to constitutional principles of accountability under Section 12 of the Constitution.“Further, under Section 60(3) of the Constitution, PAC has the power to conduct investigations and exercise the power to subpoena the attendance of any person or office holder as required in connection with the prudent exercise of the functions of the National Assembly.”

He said although standing order 157(a) appears not to apply to a public officer who has resigned, their view was that PAC has powers under Section 60(3) of the Constitution to subpoena the two.

Ngunde added: “There are two routes that may be taken. The alleged letter of resignation has elements of corrupt practices. The Anti-Corruption Bureau may investigate the matter. Alternatively, PAC may proceed to conduct investigations under Section 60(3) of the Constitution.

“In light of this and in light of the principles of transparency and accountability set out in the Constitution and the Public Finance Management Act, 2022, the issues that are in the public domain concerning the goings on at Nocma would justify the appearance of that board or any officials before any relevant committees for the sake of protection of public interest and constitutionalism.”

In a written response to a questionnaire, Parliament spokesperson Ian Mwenye yesterday confirmed that the Speaker received the communication from the AG, adding it was going to be brought before the concerned committee for its consideration.

But PAC chairperson Joyce Chitsulo last evening said her committee will proceed with the hearing as it was yet to be officially communicated on the AG’s decision.

The AG’s decision sparked debate on social media platforms as some argued that PAC was within its mandate to get to the bottom of proving the allegations made by Buluma of interference in the running of a public company. Yet others said the hearing would have cleared the air and helped those mentioned to clear themselves.

In her resignation letter dated November 14 2022 addressed to the SPC, Buluma alleged that the SPC and other public officers were giving her pressure to bring on board new fuel suppliers through dubious means.

She claimed that Zamba convened a meeting on November 13 2022 and directed Nocma management to quickly publish a request for proposal to include unsolicited expressions of interest for fuel supply. She also implicated Ministry of Energy Principal Secretary Alfonso Chikuni as among those who exerted pressure on her on suspicious oil deals.

Buluma further claimed that Zamba directed the Malawi Energy Regulatory Authority (Mera) management to influence its board to rescind an earlier decision not to declare fuel crisis emergency.

Hours after Buluma’s resignation letter went viral, the Nocma board issued a letter dated November 15 2022 indicating that it had terminated Buluma’s contract in compliance with an Office of the Ombudsman determination of September 30 2022 recommending that her contract be terminated because she was unprocedurally recruited in 2019.

The Nocma board initially rejected the Ombudsman’s recommendation in a letter dated October 31 2022, but in its letter of November 15 terminating her contract, the board said it sought an alternative legal opinion from the AG that advised the board to terminate the contract.

Findings of the Office of the Ombudsman investigation indicated that former president Peter Mutharika appointed Buluma as Nocma deputy CEO. The board later said the appointment was ratified through a board resolution of December 13 2019.