Assets law sparks row

Even before it has been tested, the new law on declaration of assets and business interests is already the subject of controversy, with the Attorney General (AG) Anthony Kamanga regretting the changes the National Assembly made to it.

Speaker Henry Chimunthu Banda, on Thursday declined to comment on Kamanga’s observations.

Kamanga said in an interview on Tuesday that the changes that the National Assembly made to the provision regarding the appointment of the Director of Public Officers’ Declaration of Assets and Business Interests will negatively affect the effectiveness of the law.

“They made these changes without even seeking for advice from the office of the Attorney General,” said Kamanga, referring to the National Assembly’s sitting of October –November 2013 which passed the law.

The bill had proposed that the director should be appointed by the president and approved by the Public Appointments Committee(PAC) of Parliament.

It also recommended that that PAC should confirm the suspension of the director by the president where there is suspected wrongdoing requiring investigations.

According to Kamanga, the House rebuffed the proposals, removing the role of the president and handing the authority of hiring and firing the director to PAC.

“In my view, this is a problem,” said Kamanga, a long-time parliamentary draftsman. “If you are going to leave the responsibility of making appointments to a political body, the process runs the risk of being hijacked by political interests.”

The AG said, as passed, the law defeats the principle of oversight and renders the achievement of accountability almost untenable.

“You can hold a single person or office accountable, but how can you hold a committee of many people accountable?” argued Kamanga.

According to the AG, the intention of making the president an appointing authority and giving the rights of approval to PAC was in line with doctrine of checks and balances.

“It is not only in respect of the appointment of the director that this is the case,” argued Kamanga, citing, the appointments of Malawi’s ambassadors, the director of Anti-Corruption Bureau (ACB) and the director of Public Prosecutions (DPP) as examples that follow the same scheme.

“The reasoning behind the scheme is in line with the principle of checks and balances —the president must be checked by Parliament. And this has worked. Not all appointments from the president have been approved by PAC,” Kamanga argued.

With Parliament making itself an appointing authority of the director, the AG wondered how it will put itself in check.

“If the argument for removing the President as an appointing authority for fearing that he or she, being an interested party, may be favoured by the director; what can be said of Parliament making itself an appointment authority when it is comprised of MPs who are also interested parties?”

“In a case where, for example, a certain political party has domineering membership in PAC, will they not abuse their numerical strength? Who will put them in check?” the AG queried.

The AG said there was no remedy at the moment because the law already came into effect after President Joyce Banda assented to the bill on December 2 2013.

However a senior parliamentary official who declined to be named because he is not authorised to speak on such matter said giving sweeping powers to PAC to hire and fire the director is not without precedent.

“The ombudsman is also appointed by the PAC and reports to it. His or her removal from office is also the preserve of the committee. The president has not role in it,” argued the official.

According to an article titled MPs question independence of declarations director, which appeared in the October 30, 2013 edition of The Nation, opposition members of Parliament – who formed a strong majority in the House – spoke against involving the president in hiring and firing of the director.

However, a political governance commentator, Mabvuto Bamusi, said the National Assembly made a mistake to clutch all the powers over the director to its chest.

“My view is that the removal of the president in the equation of appointing the director was done by looking at the incumbent. That should not have been the case. The presidency should have retained its roles,” argued Bamusi.

He said the nature of the law in respect of the ombudsman’s appointment cannot be used to justify the omission of the role of the president in the appointment of the director.

“Unlike the office of the Ombudsman, the nature of the office of the director cuts across the whole spectrum of accountability. The equation of this accountability cannot be complete by removing safeguards of checks and balances,” argued Bamusi.