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Speaker coddling 11 wayward MPs

Legislators are 5 independent, 3 DPP, 2 MCP, one UTM

AG gives his legal   opinion on the issue

The Speaker of Parliament Catherine Gotani-Hara was elusive this week when Parliamentary Monitoring Committee (PMC) asked her for direction on the fate of 11 legislators who flouted the assets law in 2019.

PMC sought guidance from the Speaker after its committee members were divided over the Attorney General’s (AG) legal opinion on the fate of the legislators, a PMC member said. 

Pushed ball to committee: Gotani-Hara

In her written response to Weekend Nation inquiry last week, delivered through spokesperson of Parliament Ian Mwenye, the Speaker pushed the ball back to the committee’s court saying she could not comment on the matter as it was still in the hands of the committee.

Said Mwenye: “You may wish to know that at times committees may bring issues to the office of the Speaker just for the information of the Speaker. This does not mean that the Speaker has to do something unless it is the decision of the entire committee to seek guidance from the office.”

 But a member of the committee, who asked for anonymity, told Weekend Nation on Monday that the committee presented the issue to the Speaker for direction after the chairperson suspended discussion on the matter due to misunderstandings.

“The Office of Director of Public Officers Declarations (Odpod) requested the Attorney General to provide legal opinion on the matter which he did. The Odpod then briefed us and also shared the opinion with us to proceed with adoption of a memo to the Speaker so that she could declare the affected MPs’ seats vacant.

“However, the AG’s opinion divided the committee’s membership forcing the chairperson to suspend debate after it culminated into chaos. The chairperson took up the matter with the Speaker because it needed guidance,” explained the committee member.

According to the member, the AG’s opinion was that the Speaker had legal powers and must proceed to discipline the culprits by, among others, declaring the MPs’ seats vacant.

When contacted on Tuesday, AG Chakaka-Nyirenda confirmed offering legal opinion to the Odpod but declined to divulge the content.

“Ethically, I am not allowed to disclose my legal opinion but if you want, perhaps, talk to the Odpod and the Speaker, they both have that opinion,” he said.

PMC chairperson Joyce Chitsulo also confirmed that her committee took the matter to the Speaker for direction.

 Said Chitsulo: “The committee took the matter to the Speaker so she is better placed to respond on the issue.”

 The role of the PMC is drawn from Section 213 (4) of the Constitution, as read with Section 13 (2) (b) (c) of the Public Officers (Declaration of Assets, Liabilities and Business Interests) Act.

 The committee comprises three parliamentary committees of Public Appointments, Legal Affairs and Budget and Finance and serves all listed public officers regardless of the branch of government they belong to.

 Under the Public Officers (Declaration of Assets, Liabilities and Business Interests) Act, failure to declare assets is a criminal offence punishable by two years imprisonment. Offenders are also liable to dismissal from public office, disqualification from holding any public office and, in case of elected officers, their seats declared vacant and banned from participation in subsequent elections.

 The noncompliant legislators include five independent members of Parliament (MPs), three Democratic Progressive Party members, two for the Malawi Congress Party members and a UTM Party MP. They failed to declare their assets within 90 days after assuming office following the 2019 general elections.

Under Section 18(1) of the assets law as read with Section 63(i)(e) of the Constitution, the Odpod has power to move the Speaker to declare seats of noncompliant legislators vacant.

According to Standing Order 207(4), the Speaker receives a petition to declare a seat vacant after which he or she serves notice to the concerned MPs to respond to the allegations.

However, this procedure has only been put into practice in reference to evoking Section 65 of the Constitution relating to crossing the floor.

As of 2019, there were over 15 000 public officers in Odpod data base who had declared their assets, liabilities and business interests since the inception of the directorate in 2014.

In an earlier interview with Weekend Nation, former Odpod director Michael Chiusiwa said generally, there was an improvement in quality and efficiency in declaring assets, not only from Cabinet ministers and MPs but all listed public officers. He attributed the improvement to the critical role the PMC has played both in and outside Parliament in educating, conscientising, encouraging and mobilising listed public officers at different levels to declare.

Catholic Commission for Justice and Peace (CCJP) national coordinator Boniface Chibwana said the delay to act on the matter was one way of frustrating enforcement of otherwise progressive laws in Malawi. CCJP is a social justice and governance arm of the Roman Catholic Church.

“It is a huge abrogation of duty and legal mandate by Parliament to exercise its oversight powers by way of checking actors or public office holders that flout the law.

“Essentially, the agency that is entrusted with law-making is effectively encouraging impunity and noncompliance with the rule of law principle to enhance the country’s governance,” he said.

He also said the scenario may not be surprising as the culprits are legislators and a conflict of interest may have been a cause of the stalemate or inaction.

Said Chibwana: “It is high time we were faithful to our own laws… In the interest of demonstrating that Parliament is a proponent of transparency and accountability in promoting the rule of law, the Speaker should engage the relevant committee for a concrete action and solution.

“The Speaker should decisively act on this sensitive and controversial matter in order to demonstrate to the citizenry that the assets declaration law was enacted for a purpose to protect the public interests.”

  In 2018, the Odpod also exposed six MPs, including a minister who did not declare their assets, but after writing the then Speaker Richard Msowoya to declare their seats vacant the request was rejected by Office of the President and Cabinet (OPC).

In previous interviews the Malawi Law Society (MLS) and other stakeholders have said unless the Odpod is given teeth to bite, enforcement of assets declaration will simply remain a repetitive, trivial but costly process.

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