Malawi’s Information and Civic Education Minister Moses Kunkuyu has embroiled himself in a recruitment controversy involving Macra director-general (DG) Charles Nsaliwa contrary to government policy.
Malawi Communications Regulatory Authority (Macra) Board chairperson Martha Kwataine argues Kunkuyu ignored a prevailing public policy in pushing for the renewal of the contract of the DG by not advertising the vacancy as required.
Governance experts and policy watchdogs have since condemned government’s manoeuvre and declared null and void Nsaliwa’s reappointment to continue heading a powerful institution that controls the country’s telecommunications architecture.
On November 19 2012, the Department of Statutory Corporations wrote the Macra Board, advising that the filling of the top vacancy at Macra should follow an August 2005 policy directive that demands advertising positions of chief executive officers and their deputies at the expiry of their contracts.
Kwataine last week said her board passed the advice to the Minister of Information and Civic Education who, nonetheless, proceeded to recommend to President Joyce Banda that Nsaliwa, who is said to have performed satisfactorily in his last contract, be re-appointed.
The President endorsed the recommendation by Kunkuyu who in turn instructed the Macra Board to formally write Nsaliwa of his contract renewal, the minister confirmed through an SMS interview.
Employment contract policy
The 2005 directive, signed by the then Chief Secretary to Government Charles Matabwa, reads, in part: “I would like to bring to your attention that government has with immediate effect introduced a new policy of employment contracts for chief executives and their deputies.
“Previously, the practice was that when a contract expired, a request for renewal was brought to the board of directors for assessment and initial approval/disapproval after which a request was submitted to government for final approval.
“The new policy is that when an employment contract for the chief executive and deputy chief executive officer has expired, the position will be open for competition. All advertisements for such positions will be initiated by government at least three months before the expiry dates of the contracts.
“I should be most grateful if the contents of this circular are brought to the attention of all those responsible for recruitment of staff in your organisation.”
But Kunkuyu argued the law empowers him to recruit the Macra DG in a manner he did.
The law is silent on the advertising and the rest of the process.
Advice ignored
However, the Macra Board and the Department of Statutory Corporations recommended that the vacancy be advertised in compliance with the policy, but the Executive snubbed the recommendation.
Last Tuesday, Kwataine confirmed the board recommended to the Minister of Information that the vacancy be advertised.
Said the board chair: “Attempts to advertise were made. As a board, we recommended that the vacancy be advertised. We advised government to comply with the existing policy. Why government decided not to follow its own policy, they should explain.”
She said the board prepared a draft advertisement as per request from government.
Statutory Corporations comptroller Nwazi Mnthambala wrote Macra Board advising the chairperson to advertise the DG’s position in compliance with the prevailing policy.
Wrote Mnthambala in the letter titled ‘Renewal of Contract for the Director General of the Malawi Communications Regulatory Authority: Mr. Charles Nsaliwa’: “Reference is made to your letter of September 21 2012 regarding the above captioned subject matter.
“I would like to inform you that in compliance with the prevailing government policy on the renewal of employment contracts for chief executive officers and their deputies herein attached, the position of director general for the Malawi Communications Regulatory Authority should be advertised and the incumbent may apply to compete for a fresh mandate.
“As a matter of urgency, you are hereby requested to submit a draft advert for the position for government vetting in order to initiate the recruitment process. You may also wish to note that the department is, on your behalf, seeking government approval to engage the director general on a month-to-month while the recruitment process is underway.”
Asked why the vacancy was eventually not advertised, Mnthambala said: “No comment.” But she insisted that the 2005 policy is still effective.
She also refused to comment on why some parastatal organisations do not advertise positions of chief executive officers and their deputies when their terms expire.
Last Tuesday, Kunkuyu defended government’s reappointment of Nsaliwa without advertising, saying Section 9 of the Communications Act empowers him to appoint directly.
Said Kunkuyu: “The DG serves for three years with an option for renewal. It [the Act] says on the recommendation from the board, the minister shall appoint. All conditions were satisfied. The board recommended and I got the consent from H.E [Her Excellency] and went on to appoint.”
Asked to explain the relevance of the policy when it can be applied selectively and why government snubbed the Macra Board on the advertisement, Kunkuyu said: “A policy directive is not in any way supreme over the law.”
In a letter to the President, Kunkuyu justifies Nsaliwa’s appointment, arguing that although the board was advised to stick to the government policy, the board asked for special consideration for Nsaliwa.
But in a follow-up interview last Thursday, Kwataine claimed the board did not ask for any such special consideration. She insisted the board recommended for an advertisement.
Reads Kunkuyu’s letter to the President: “However, the board was advised to adhere to the prevailing government policy on renewal of contracts for chief executive officers and their deputies, which require that the position should be advertised and the incumbent be encouraged to apply.
“The board, however, requested government to give special consideration to Mr. Nsaliwa who has displayed outstanding performance during his tenure of office at the Authority…”
The Secretary for Information and Civic Education wrote Macra Board chairperson on December 11 2012 informing her of government’s approval of Nsaliwa’s tenancy.
Reads the letter: “I am pleased to inform you that government has approved the renewal of the contract for the director general of the Malawi Communications Regulatory Authority, Mr. Charles Nsaliwa, for a term of the next three years [See attached approval from Her Excellency, the State President].
“All formalities related to the renewed contract will be communicated to you by the comptroller of Statutory Corporations.”
‘Contract null and void’
But University of Malawi’s associate professor of finance and corporate strategy James Kamwachale-Khomba has described Nsaliwa’s contract renewal as “null and void” and asked for a restart of the whole process.
“In terms of good corporate governance and even legal governance, government has goofed. Government appoints a board to oversee activities at Macra and the board appoints management. When government jumps to appoint management, that is a breach,” argued Kamwachale-Khomba
The Catholic Commission for Justice and Peace (CCJP) also faulted government for bringing what it called politics into the appointment of Nsaliwa by, among others, ignoring its own policy.
CCJP national secretary Chris Chisoni, in an interview last Wednesday, argued “bringing politics” into statutory bodies renders them useless in terms of service delivery and their boards become toothless.
Malawi Economic Justice Network (Mejn) executive director Dalitso Kubalasa last week also cautioned government against interfering in parastatal management.
“We have seen how costly small blunders by government have been. If government is not willing to learn to do things the right way, we will be going back to the very same problems,” said Kubalasa last Thursday.
Constitutional lawyer at Chancellor College associate professor Edge Kanyongolo said where a policy and the law clash, the latter prevails. But he could not say whether Kunkuyu broke the law. Kanyongolo said he needed time to read the actual Communications Act.
