Ombudsman nullifies EDF Chief Executive Officer Gerald Nsomba appointment

Ombudsman Grace Tikambenji Malera has quashed the 2020 appointment of Gerald Nsomba as the Chief Executive Officer (CEO) of the Export Development Fund (EDF).

EDF is a subsidiary of the Reserve Bank of Malawi (RBM) responsible for financing export businesses.

Since September 2021, the Office of the Ombudsman (OoO) has been investigating the circumstances that to the recruitment of Nsomba as CEO for the Fund in 2020. The investigation followed a complaint the Ombudsman received on 1st September 2021 from Concerned Employees of RBM alleging his unprocedural recruitment and appointment to the position.

Gerald Nsomba

The Concerned Employees sent a similar communication to the Public Appointments Committee of Parliament while the Anti-Corruption Bureau (ACB) simply referred the same matter to the OoO for action.

Among others, the complainants alleged that Nsomba was appointed just before the June 23rd 2020 fresh Presidential Polls as CEO of EDF without the position being advertised to allow willing and eligible applicants to compete for the post of the CEO.

They said Nsomba’s appointment was contrary to the provisions of the RBM Group policies, (EDF as well as parent institution of EDF), which require that jobs be advertised externally only if the job in question  cannot be filled internally.

The complainants made the assertion that there were other well deserving candidates for the position within the RBM Group.

They also asserted that Nsomba was employed to the position of CEO notwithstanding that he did not, at the material time, possess the requisite qualification and experience for entry for the EDF CEO position, which was at least a relevant Master’s Degree and 10 (ten) years’ experience as Head of Department according to Human Resources Policy of the RBM Group, as per the advertisement, which was placed in the local daily newspaper of February 2017, when the position was once advertised in 2017 but nobody was recruited.

After a rigorous investigation, the Office of the Ombudsman found that indeed the Board of Directors at EDF unprocedurally transacted the business pertaining to the proposal for EDF to make a job re-offer to Nsomba.

Presenting the findings of the investigation in Lilongwe on Friday, Malera said the Board also acted unreasonably by making a job offer to a candidate in 2020 on the basis of interviews that the Board had administered in 2017.

“The silence or lack of response that followed the email dated 8th May, 2020 from Mrs. Sentala to the Board members on the issue of the job re-offer to Mr. Nsomba, is a pointer to the fact that the proposal to make the job reoffer did not receive the endorsement of the Board, with the exception of one Board member. However, the evidence has shown that the Board raised questions on the proposal by the Shareholder to make a job re-offer to Mr. Nsomba when it was announced at the meeting. For their own reasons, they did not further act on the issue as they did not respond to the 8th May email,” she said.

Malera added that whatever reasons the Board members may have had for not engaging further and querying the propriety of the proposal or decision by the Shareholder on the job re-offer to Nsomba, their conduct demonstrates that they failed to deal with the matter of the job reoffer decisively and compromised on their oversight role and responsibility.

She therefore ordered that the recruitment of Mr Nsomba was unprocedural, irregular and it breached the principles of fairness.

In light of the issues the Inquiry set out to address in this Determination, on the basis of the evidence, applicable laws and analysis detailed in ensuing paragraphs, I find as follows:

“In line with the right meaning and correct interpretation of the requirement on the academic qualifications for the EDF CEO position, Mr. Gerald Nsomba did not meet the minimum requirement of possession of ‘at least a Master’s Degree in Economics, Finance, Banking or other relevant Post Graduate Qualification.’ An Advanced Post Graduate Diploma, which Mr. Nsomba possessed and presented at the interviews is not equivalent to a Master’s Degree. Thus, Mr Gerald Nsomba was wrongly, unprocedurally and irregularly shortlisted, interviewed, and eventually offered the post of CEO of EDF. This is tantamount to maladministration. The whole recruitment process was founded on voidable premises.

“The EDF does not have a comprehensive policy or guideline on recruitment of staff, save for a provision in the institution’s human resource manual which states that the Board shall have a final say when it comes to the recruitment of the management team. However, the decision to offer the job to Mr. Gerald Nsomba was not endorsed by the Board. This was irregular and unprocedural, and therefore tantamount to maladministration.

“Contrary to the provision in the EDF Human Resource Manual that application for appointment to jobs in EDF shall be considered from prospective candidates who meet specified minimum job requirements, Mr Nsomba was shortlisted, interviewed and offered the job when he did not meet the minimum qualifications and therefore ineligible. Mr Nsomba was placed at an undue advantage by being shortlisted in spite of his non-compliance with an express and fundamental criteria on academic qualifications. This led to unfairness and resulted in maladministration.

“Bias and favoritism towards Mr. Nsomba by key persons that were involved in or connected to his recruitment process cannot be ruled out. The conduct between the former RBM Governor and Mr Nsomba was improper. This introduced arbitrariness and unfairness in Mr Nsomba’s recruitment process and resulted in maladministration.

5.6 The Board of EDF unprocedurally transacted the business pertaining to the proposal for EDF to make a job re-offer to Mr. Nsomba. The Board acted unreasonably by making a job offer to a candidate in 2020, on the basis of interviews that the Board had administered in 2017. This is maladministration.

5.7 The Board of EDF demonstrated a failure of duty in not querying the propriety of the proposal or decision by the Shareholder on the job re-offer to Mr. Nsomba and not dealing with the matter decisively, thereby compromising on their oversight role and responsibility.

5.8 There is no evidence to support the claim by the Complainants that Mr. Gerald Nsomba did not have the requisite job experience for the role of CEO of EDF,” said Malera as she read her report.

She said based on the findings, the Board of EDF should proceed to effect the attendant remedial administrative action as if the recruitment of Nsomba in fact never happened and did not take place notwithstanding that Mr. Gerald Nsomba has since resigned from the position of CEO.

“Any party dissatisfied with the determination as contained in this report is entitled to apply for review of this determination by the High Court pursuant to section 123 (2) of the Constitution of the Republic of Malawi within 3 months from the date hereunder,” she concluded.

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