Nocma faulted on Buluma status
National Oil Company of Malawi (Nocma) board of directors has come under fire for rejecting the Ombudsman’s recommendations on nullifying the contract of its deputy chief executive officer Helen Buluma.
Malawi Law Society (MLS), Legal Affairs Committee of Parliament and Ombudsman Grace Malera separately said the position taken by Nocma board of directors chaired by Secretary to the President and Cabinet Colleen Zamba is tantamount to violation of the Constitution.
The stakeholders were reacting to communication from the Nocma board, signed by Zamba, that they decided to retain . Buluma and pay her terminal benefits which is contrary to the Ombudsman’s determination of September 30 2022. In a response made outside the prescribed 30 days, the board said abiding by the Ombudsman’s recommendations would be in violation of provisions of the Companies Act
But MLS said in a statement yesterday that basic constitutional law which any holder of public office should know gives clear guidelines on what to do when one is unhappy with the Ombudsman’s decision.
The statement signed by MLS’ honorary secretary Chripin Ngunde said Section 123(2) of the Constitution authorises review before the High Court of Malawi.
Reads the statement: “A board led by a top government official must lead by example. Withdraw this letter if indeed it has been written and refer the issues to the High Court if the Nocma board strongly feels the Ombudsman’s decision is erroneous.”
MLS said the letter is improper and smacks of significant impunity for the board.
In an interview yesterday, Malera confirmed receipt of the letter from the SPC and said her office has since given its response.
She said: “In our response, we have advised the SPC/board chair that the law does not make provision for the position and approach that they have taken as Nocma directors to respond to a determination that has been delivered.
“Instead, there are legal mechanisms that are at her disposal. It would help for her office to consult the Attorney General on the further conduct of this matter.”
On claims that the Nocma board was not given an opportunity to be heard, the Ombudsman said this is a misrepresentation of facts because the SPC/board chairperson was duly represented during the inquiry on July 21 2022 by a senior official from her office and that the Office of the President and Cabinet also provided a comprehensive written response and relevant documents submitted on July 27 2022.
“So we have submitted a report of non-compliance to Parliament for action,” Malera said.
Legal Affairs Committee of Parliament, which provides oversight to the Office of the Ombudsman, said yesterday they were perturbed by the SPC response in her capacity as chairperson of Nocma.
Committee chairperson Peter Dimba said in an interview: “Their responses should have come during the inquiry and not after the determination is out.
“According to the law, after the determination, there are only two options, to comply or to challenge the determination in the High Court in accordance with the Constitution.”
In a written response, Attorney General Thabo C h a k a k a – N y i r e n d a yesterday said the Nocma board did not consult his office on the matter.
He said: “I have been consulted before by Nocma, but not on this case. As a State enterprise, Nocma has a board which is responsible for running the company’s operations. They can seek legal opinions from external lawyers in handling affairs.
“But as I said, I was not consulted on this particular case. My approach would have been completely different if I were consulted.”
The Nocma board has rejected recommendations of the Of f ice of the Ombudsman on among others nullifying Buluma’s contract as deputy CEO.
In justifying its position, the board, in its letter dated October 31 2022, says the Office of the Ombudsman never accorded the old or new board of Nocma an opportunity to be heard during its investigations.
The Nocma board, which Comptroller for Statutory Corporation Peter Simbani confirmed yesterday still has mandate, says the directive to nullify Buluma’s contract on grounds that her recruitment was irregular, unprocedural and never existed would be against the Companies Act.
It further states that it has made a decision to retain Buluma as Nocma deputy CEO and would also proceed to pay all her terminal benefits, including gratuity in relation to her three year contract which ended on August 2022, before a four-month extension of up to December was made.
The board, however, said it would take a recommendation from the Ombudsman’s determination to advertise the position of deputy CEO as it is a part of the duly approved company establishment through a board approved functional review process, with a job description and approved budget.
Zamba yesterday did not respond to our questionnaire sent through WhatsApp nor pick her mobile phone while Minister of Information and Digitisation Gospel Kazako, who is also the official government spokesperson, was not available for comment.
Former president Peter Mutharika appointed Buluma to the position of deputy CEO on August 26 2019 and the Nocma board, in its letter to the Ombudsman, argues through its resolution, it ratified Buluma’s appointment on December 13 2019.
