Lawyer wants APM decisions nullified

A Malawi Law Society (MLS) member, Bright Theu, has written the society’s executive to ask President Peter Mutharika to stop making ‘illegal’ appointments.

Theu, in the confidential letter we have seen, titled—‘A call to action: The tragedy of corporate governance of public agencies/corporations’—claims that the President, without authority, appointed an executive director of Competition and Fair Trading Commission (CFTC) and board members of some statutory corporations.

The lawyer said the President also illegally appointed chairperson of CFTC when, ideally, the chairperson was supposed to be elected by the board’s members.

Theu, who cited a number of such illegal appointments in his letter dated January 7 2020, also provided and made references to some pieces of legislation to buttress his arguments.

MLS president Burton Mhango confirmed in a written response that the society received Theu’s letter on January 7 2020 and, with additional points through e-mail on January 8.

He said MLS was reviewing and considering issues raised by Theu.

On the other hand, the President, through his spokesperson Mgeme Kalilani, has said all presidential appointments are made within what is provided in the laws and corporate governance practice governing each particular institution.

But, in his letter, Theu is requesting MLS to write Mutharika and ask him to rescind his purported appointment of the CFTC chairperson.

He urges the MLS to write CFTC to conduct elections for its chairperson, arguing “whereas the President has the power to appoint members of the CFTC; such mandate does not extend to appointment of the chairperson of the CFTC”.

“President Mutharika’s purported appointment of Mr. Nelson Nsiku as chairperson of the CFTC is…precisely incompetent, illegal, a characteristic meddling in the corporate governance of the CFTC, and effectively void.

“Write the CFTC to disregard the recruitment process, the President’s purported appointment of the executive director, and conduct its own proper recruitment of the executive director.

“Write the President to rescind the appointment of members of any corporation for which he has no mandate to appoint and advise him to do better as expected of a Professor of Law who is also well advised legally,” Theu writes.

He further urges MLS to write responsible ministers to exercise their powers of appointing members of the governing bodies of corporations they are responsible for.

Theu says he wanted the MLS executive to take necessary action within the statutory objects of the society on the routine disregard of statutory corporate governance arrangements for public corporations in general.

He reminds the lawyers’ body that the society is established, among others, with the objective of “protecting matters of public interest touching, ancillary or incidental to the law”.

Theu says the statutory scheme under the CFTC Act is that members of the CFTC are nominated by the minister and appointed by the President, according to Section 5 (1)(a), CFTC Act.

He says a government press release dated August 11 2019, announcing appointment of members of various public institutions, communicated that the “Government” appointed Nsiku as chairperson of the CFTC and six other members in addition to the ex-officio members.

But, Theu argues, there was neither identification of the government official who exercised the power of appointment, nor of the statute from which such official derived such powers.

“The ambiguity entails that there is no specific government official who could be held accountable for the exercise of the power of appointment.

“However, drawing on what appears to be a trend, I am prepared to surmise that the appointment was made by President Mutharika,” he says in his letter.

The CFTC, he argues, and not the President, has the mandate to appoint its executive director in terms of Section 20(1) of the CFTC Act.

“The President’s appointment of the CFTC executive director is accordingly equally incompetent, illegal, a typical meddling in the corporate governance of the CFTC as established by the people through Parliament, and void at law.

“Equally alarming is the dubious manner in which the CFTC’s authority to appoint the executive director has been subverted,” Theu argues.

He says upon inquires, it is noted that although the appointment of CFTC members was announced in August 2019, the formal letters of appointment were not sent to the members until after the interviews of the candidates for the office of executive director had already been conducted sometime in November 2019.

“Since these interviews were conducted before the appointed commissioners began discharging interviews were conducted by extraneous individuals usurping the powers of the CFTC. their duties, it means that the

“This makes both the interview process and the resultant appointment of the executive director by the President a treacherous undertaking in circumventing the law to frustrate its objectives,” Theu argues.

On appointments of board members in general, Theu says this has become a routine for President Mutharika.

He cites Malawi Housing Corporation (MHC), arguing that unless the law was amended, the chairperson, deputy chairperson and other members of MHC are by clear statutory stipulation of Section 5(1), MHC Act, Cap 32:02, supposed to be appointed by an expressly designated public official, the minister, and not the President or the inanimate thing called “government” as the vague press release of 11 August 2019 indicates.

“To the extent that government may be referring to the President as the appointing authority, he simply has lack of authority, and cannot conjure up any, to appoint the members of the MHC [or] water boards,” he argues.

The lawyer says that contrary to Section 5(1) of the Waterworks Act Cap 72:01 of the Laws of Malawi, which constitutes each board as chairperson, a representative of local authorities, secretaries for education and health, and nine members (a total of 13 members) all of whom shall be appointed by the minister, the press release of 11 August 2019 suggests that the President once more usurped the powers of the minister, appointed the chairperson and members of Blantyre Water Board for whom there is no provision under the Act.

He says the trend is similar for the other water boards.

The lawyer argues in his letter that a chief executive officer, who is illegally appointed, would be vulnerable to honour some requests from powers that be.

The Law Society, he says, owes it to the largely helpless public to rise to the occasion and protect the public interest through insisting on compliance with the good corporate governance foundations for our public entities.

“Your executive’s inaction in playing ostrich to these blatant illegalities is precisely what gives the powers that be the impetus to continue with pomp and ceremony on this path,” Theu challenges his colleagues.

But MLS president Mhango said the leadership of his professional body always appreciates when its members raise legal issues with the leadership.

The presidential spokesperson, said since the communication was expressly between an individual and the Law Society, they wanted to allow the Law Society to handle the matter.

“Should there be any queries regarding any appointment, the Office of the President and Cabinet (OPC) is ready to provide an explanation when sought. As it stands, there is none before the OPC to be addressed,” Kalilani said.