A governance commentator Makhumbo Munthali has warned that the recently enacted Amendment to Corrupt Practices Act remains wanting in as far as meeting its objective of enhancing the independence of the office of the Anti-Corruption Bureau (ACB) director.
Parliament on Friday passed the amendment to Section 5 of the Corrupt Practices Act, where amongst other things the appointment of the ACB director will be subjected to advertisement and interviews before a President finally appoints from the submitted list.
Minister of Justice Samuel Tembenu touts the new arrangement would enhance independence of the office by removing the public perceptions that the office of ACB director was subject to the executive interference.
“We want to enhance the independence of the person, so that when he/she is put there nobody should doubt as to the transparency of the process that led to his or her appointment, so that he or she also feels confident”, argued Tembenu.
However, a Lilongwe-based governance commentator Makhumbo Munthali told Nyasa Times that while on the surface the amended Act seemed to suggest some reductions of the Presidential powers in the appointment of ACB Director, a close analysis of some proposed amendments reveals that the Bill is far from meeting its objectives of enhancing the independence of the office of Director.
“You can clearly see some red flags particularly in three areas of security of tenure of office of the director; appointment of the selection panel; and the President’s powers to reject the shortlisted name. In the context, of a government which practices politics of patronage, cronyism and nepotism such amendment cannot practically work and it’s that government did not make some refinements to the Act after some opposition members had raised them,” said Munthali in an exclusive interview with Nyasa Times.
Munthali further observed that the fact that the Minister is the sole “receiver” of applications may be prone to abuse whereby some Minister may remove the names of those perceived to be critical of the ruling party or government and then submit the list he or she likes from the many applications to the Selection Panel.
“Consequently, the Selection Panel – which ironically is constituted later after the Minister has received all the applications – may only review and shortlist from an already doctored list of applicants which is void of the Minister’s critics who may have applied”, argued Munthali
According to the analyst, in order to ensure that every application is received and considered fairly there was need for the Minister to first empanel the Selection Team/Panel before advertising the position in the Gazette and at least two newspapers of widest circulation.
“After empanel the team, the Minister and the Selection Team should co-receive all the applications through either creating an “application email” that can be accessed by both the Minister and the Selection Team. This would also ensure that the Selection Team is involved from the very onset of receiving applications till the very selection of the best 3 candidates to be submitted to the President through the Minister”, argued Munthali,
Munthali agreed with the opposition Malawi Congress Party (MCP) legislator Juliana Lunguzi’s observation that by leaving the whole powers to appoint the Selection Panel in the Minister it had the potential to be abused where the Minister would select people from the 7 sectors (civil society, media, private sector, public sector, faith community) who are loyal to government to constitute the Selection Panel.
“In order to reduce chances of a Minister appointing his or her party friends from these sectors into the Selection panel, It would have been proper if the Amended Act had specifically defined the identity of the representative institutions of the said sectors from which the Minister shall appoint members of the Selection Team.
“ In my view the relevant umbrella mother bodies of these sectors such as CONGOMA, Public Affairs Committee (PAC), Media Council of Malawi should have been allowed to submit nominations of 3 qualified people (from their respective constituencies) to the Minister to be considered for selection as members of the Selection Panel. This would also ensure that the people that feature in the Selection Panel are bonafide representatives of these sectors rather than mere government or ruling party cronies. After receiving the list of the nominees from all the umbrella mother bodies from the targeted sectors, the Minister should have then empanelled the Selection Team from that submitted list– a list that takes into consideration the 60%-40% Gender Equality Act provision,” argued Munthali.
Munthali further faulted Section 6A (6) of the Amendment Corrupt Practices Act which gives power to the President to be able to reject all the names submitted to him by the Minister for appointment if he is not satisfied, arguing that this was not only costly but also a signal that the President had still an appetite to only appoint people that he may personally like.
“This has the potential of undermining the relevance of the whole inclusive, consultative process where the views of one person supersedes those of the majority- in this regard the Selection Panel. Besides, the provision seems to suggest that government shall not have confidence in the competence of the Selection Panel, and this may even raise the question: why constitute the Panel whose decision to shortlist 3 may not be respected by the President? In short or long term, this may also undermine the independence of the ACB Director. It can be said without contradiction that the addition of this provision is a mockery to government’s professed attempts of reducing the appointment powers of the President as the President would still wield enormous and dictatorial powers against the decisions of an inclusive process led by the Selection Panel,” added Munthali.
Munthali said the Amendment Act was nevertheless a positive step towards the real realisation of the independence of the ACB Director but called for the need to make further amendments to it in the near future.
“It would be unfair to just trash the whole Amendment Act. Certainly, there are a number of positives which as a country we can build on. The advertisement in the newspaper calling for applications for the post of ACB Director; The empanelling of an Inclusive “Selection Panel” -which takes into consideration the Pillars of the 2008 National Anti-Corruption Strategy – tasked with the shortlisting and interviewing in order to select a minimum of two and maximum of three candidates to be shared with the Minister for his submission to the President; and The President’s limited choice to appoint an ACB Director from the 3 names submitted to him are all some positives that we can build on as we move into the future. However there is need for some refinements as I have observed earlier. Government must nevertheless be commended for taking steps towards reforming the recruitment process of the ACB Director,” argued Munthali.
There have been widespread calls to give autonomy to ACB.Follow and Subscribe Nyasa TV :