PUBLIC ACCOUNTABILITY AND LOCAL GOVERNANCE

Leo Babauta said, “At the end of the day the questions we ask of ourselves determine the type of people that we become.” The same could be true with our governance system; the questions we ask on how we are conducting our affairs will determine the nature of governance we end up with. From that assertion we go on to ask; what is the state of accountability in our local governance system?.

The objective of local governments according to the Local Government Act is to further a constitutional order based on democratic principles, accountability, transparency and peoples’ participation. An accountable and transparent government at local level is what is envisaged by law and policy. But is there any accountability in our local governments?

Accountability exists when the officials and politicians are compelled by and act on the obligation to explain and justify their conduct to some significant other. Public accountability, on the other hand, connotes the accountability that is open or at least accessible to the citizen. It is at this juncture that a question still stands; how far are the councils publicly accountable, if they are accountable at all?

It may as well be said that the systems and mechanisms of accountability obtaining in our local governance need to be revisited. It is not a secret that at the moment the local governance system is devoid of political accountability owing to two factors; the absence of local elections through which the communities hold their representative councilors to account by ballot, and the absence of the councilors to whom the community directs their questions to make him or her accountable. At the same time, it is these politicians who, as representatives of the people, hold the administration of the local authorities to account. That apparatus is not functioning. The system is critically awaiting resuscitation by any grace of leadership commitment.

Yes, there are no politicians and no political accountability in local governments. But what mechanisms and practices are there for organisational accountability? Who holds the local authorities in our critically sick system to account? What about administrative accountability in terms of audits, safeguards, controls and oversight? How efficient are the tools of accountability in use within the current abnormalised governance system?

The practice shows that there is an attempt by the relevant ministry to exercise some oversight over local governments, but the same does not seem to be paying dividends due to the absence of some essential organs of the system. The office of the Auditor General as legally mandated does conduct audits periodically, but to what end?  There are instances where a report indicates that a local authority has not externally audited its accounts nor has it had any bank reconciliation for a period of four consecutive years. Then you wonder where the Auditor General’s office was in all that period.  And after finding that fact, how accountable is the organisation or any individual for such a slip of administrative practice? In most cases not any at all. That is a clear proof of inefficiency of those who have a duty to account and those who have a duty to oversee. Then there is the National Local Government Finance Committee which is involved in budgeting processes. The sad fact is that no reasonable oversight on implementation of the budget and plans of the local authorities exist. That is if there are any tangible plans worth that name.  How accountable or responsible is the organisation or any individuals for fruitless, wasteful or unbudgeted expenditure? If such accountability is there, the question is; is the community aware? If there is no such openly available information and facilitated awareness, then the conclusion is that there is no public accountability in our local authorities, if there is any accountability at all.

Public accountability is not only a hallmark but also a pre-requisite element of democratic governance. It is an institutional arrangement that fosters democratic control, enhances the integrity of those governing, improves performance and enhances the legitimacy of the authorities. With these noted benefits, Malawi as a nation need to seriously consider measures to heal the bedridden local governance system or lose out altogether. And the earlier it is done, the better.

Finally, for better accountability, there is need to redefine the inherent relationship between the local authorities and the people whom they govern. It is pertinent that each and every citizen starts getting concerned on how the local authorities are managed and city rates payable periodically are used. 

LET’S TALK OF PEOPLE’S PARTICIPATION

Malawians want tripartite elections in 2014- Reports Nyasa Times. This begs the questions; which Malawians were consulted? On what basis were they selected? Who are they representing and are they representative enough?

These questions are not to belittle or demean the efforts taken by the Legal Affairs Committee of Parliament to do some consultations on the issue of having tripartite elections as reported. But still the above questions are relevant to consider in the spirit of nation building, and in a considered view, must so be asked at a higher level.

To begin with, this is within the idea of public participation also referred to as people’s participation. This is one of the elements that makes up good governance and must be a practice in an open and democratic society. Specifically, it requires that people, or the public in other words, must be consulted by decision makers on issues of legislation and policy that impacts on their day to day life. The primary idea is not a smoke screen consultation, but that the public must have a meaningful role in the decision making process. This is important to make sure that the decisions made are in the interest of the public and addresses their needs.

There are many tools and mechanisms that may be employed to have a meaningful people’ participation in practice. It is on this background, and on the experience so far,  that it can be queried as to what mechanisms the Malawi nation has put in place to make sure that people are meaningfully consulted and participate in decision making. In many cases in our country, the decisions have been those of the executive branch of government with endorsement by members of parliament. In other cases, important policy decisions do not reach the parliamentary level. This is not to take away the fact that in some cases conferences, workshops and discussion forums have been organized. But the above raised questions still arise: What criteria are used to select the participants? What measures are put in place to make sure that the general public is made aware that a policy issue is in discussion, apart from inviting the designated participants? And how representative are these people, groups and organizations to all sections of the people of Malawi?

The concept of good governance dictates an open, transparent and accountable government. How open are these conferences, forums and gatherings if only a few people are informed and representative of many are not invited? Are the executives of the organizations, departments, distinguished members of the public, Civil Society representatives representing the people of Malawi?  Even at Parliament level, are the members of Parliament who are most of the times left with the power to decide representative of the views of Malawians in the communities? Can we say that the people of Malawi have a meaningful participation in decision making process through their members of parliament?

All in the mire, we need to strike a balance between representative governance and participatory governance. At the moment one cannot categorically say we are practicing either representative governance or participatory governance in the real sense of the words. For the sake of reference, the idea of amending the Constitution to have the President decide when local government elections are to be conducted, who was consulted? Whose views did it represent and who participated?  Were Malawians in favour of that decision? If Malawi is to make meaningful progress in governance serious steps and measures need to be taken to entrench and cultivate the practice of engaging people in decision making processes. This is without exclusion of the idea to insert some clauses in our Constitution and legislation obligating meaningful consultation and participation. Balancing the idea of representative and participatory governance is another are as a nation Malawi need to work on. Thumbs up the Legal Affairs Committee for doing the consultations.

THE DILEMMAS OF REGULATING LOCAL GOVERNMENT SERVICE STAFF IN MALAWI

Regulation of the local government service employment is a thorny issue, as is the case with regulating the public service in general. Use of the term local government service is rather old fashioned. Previously the term was so relevant since there was one local government service as it is in the case of civil service under Civil Service Commission, Police service under relevant commission and others. When a person was employed in any of the local authorities he was said to be employed by the local government service.(Local Government Service Staff Regulations)(LGSSR).

With the current 1998 Local Government Act (LGA), the scenario has changed. The Act provides for each council or local authority as an independent legal entity with the right to sue or be sued in its own name and as body corporate in its own right.( s 5(2) LGA). In the same line, the local governments under this Act are given power to appoint, develop, promote and discipline their own staff. ( s 6(1) (a) and 24 (3) LGA). This of course is in exception of the Chief Executive (CE) and directors who are appointed by the minister and the Local Government Service Commission (LGSC), respectively. This takes away from the equation the idea of having a single local government service as each council or local authority is an employing body corporate.

Ironically, however, the Constitution and LGA still recognize and maintain the LGSC whose role has been greatly reduced and its relevancy questioned. Formally, the LGSC is established by the Constitution and its detailed functions and composition by the Local Government Service Act (LGSA), Chapter 22:01 of the Laws of Malawi. By law and practice the LGSC was entrusted with power to appoint staff in the local government service and make rules of discipline, as well as deal with other relevant matters. The scenario is no longer the same as the LGA gives power to the councils to appoint and discipline their own staff. This has not been quickly adapted In practice, including by the lead ministry, as appointment of staff below director grade needs the approval of the ministry.

Apart from the above, an important fact is that the LGSA remains in its old form without any review. This creates a dilemma as to what are the clear terms of reference for the LGSC.  While the LGSA provides for power to LGSC to make rules of discipline for staff in local government service, the LGA provides, under section 25, that councils shall have power to make their own regulations, thus taking away the other essential power of LGSC. As of now the main power of LGSC is appointment of directors. This is an area of the law that requires a systematic urgent review to clearly provide for the roles and functions of the LGSC.

A dilemma is created in the fact the LGA when repealing the previous applicable legislation stipulates that regulations made under the old law shall remain applicable and may be replaced.  (s 114(2) LGA). No replacement of those regulations (LGSSR) has been made so far which means they are still applicable. The difficulty is that those LGSSR in other instances conflict with the LGA and the terms and conditions of service adopted by the councils. In case of the conflict with the LGA, the Act will prevail. The main dilemma is when the conflict is with the terms and conditions of service. The question is; which one will prevail?

The other significant dilemma is in the issue of appointment and discipline of senior officers, in particular the CE and directors. While the councils have power to discipline their own staff as above observed, it is not clear who is to discipline the CEs and directors. This uncertainty is mainly to the fact that the CEs and directors are appointed by the Minister and the LGSC, respectively. Should the power of disciplining these senior members of staff be lined with the power of appointment or should it be with the council itself? In an ideal situation where the councilors are in place, the council itself could be placed to discipline these senior staff. But the idea of using the Appointment and Disciplinary Committee mainly comprised of administrative staff, particularly in the absence of councilors, brings in some practical questions.

In practice this is complicated further by the fact that contracts of CEs are drafted in a way that the CEs (or District Commissioners) and the Government of the Republic of Malawi are parties to it. This raises the question as to who really employs the CEs or DCs. Is it the national government of the local councils? Further, in all of these instances, the Public Service Act, Chapter 1.03 of the Laws of Malawi and the Malawi Public Service Regulations apply as these are public servants. Interestingly, these two extremes do not always speak with one voice.

With such lack of clarity in law, regulation and practice, it really calls for a rethinking. All these dilemmas boil up to the concepts of performance monitoring and accountability. The lines of accountability become blurred and one should not be surprised with underperformance. Need some thinking.

WHAT AOUT THE LOCAL GOVERNMENT?

What about the local governments? This is a pertinent question that has to be asked at this time when the new regime is working hard to rectify the governance errors committed by the predecessor. As per Barak Obama’s use of words, it is trying to clean up the mess created by the previous administration.

We need not overemphasize the importance of local government by citing elite scholars on matters such as strengthening of good governance at a local and community level or that it is a medium of local development through a system of accountable, participatory and representative leadership at grass root level. All we need to do is revisit our decentralization policy as was adopted in 1998.

The objectives of the policy were among other things, to create a democratic environment and institutions for governance and development at local level with grass root people’s participation in decision making; to promote accountability and good governance on that level to reduce poverty; and to mobilise locals for social economic development. The policy was translated into law by inserting relevant provisions into the constitution and enactment of the Local Government Act of 1998.

Is it relevant then, to ask if that intent of the policy has been fulfilled? All that is known is that Malawians have been denied the right to be represented in their community politics and rightful involvement in developmental quest. It is a fact that people’s participation in decision making at a grass root level has been denied unfairly and unjustifiably. It is a further fact that local development as envisaged by the policy has not made any meaningful strides. What is next then?

Do we need to ask much, at this stage, as to what has been the cause of this unfair and irrational denial of local democracy, accountability of local authorities, people’s participation and development? It is a well known fact that those in power have tended to disregard the dictates of the constitution, making the intent thereof and the people who sat down to to put together a policy and enact the law to seem like a mockery. It is in the public knowledge that amendment of the law as regard local government has never been actuated by need of improvement of the governance system nor has it ever been based on research and systematic consultations. It was rather a short-sighted decision of a few people juggling with a power stick. A clear case of a few individual insisting to be wiser than the law and the common good it was meant to serve.

It may not be necessary to recall that in the late 1990s, after the adoption of the decentralization policy, the people power (mphavu ku anthu) slogan was highly propagated. But it should be shamefully noted that the power has never been given to the people at all. Whatever was promised has been denied outright. These are local governance anomalies created hitherto the new change and clean up policy.

We do not need to be specific in mentioning that it made all reasonable sense, as originally provided in the initial local government legislation, that the chief executive office should be appointed by the council itself as an independent entity. The arrogance actuated amendment changed that to subject the chief executive appointment to the power of a minister. This was made without any regard to the need for political independence of the office. It was, however, an irrational decision aimed at closing the gap created by getting rid of councillors due to postponement of elections.

Again it need not be mentioned that the constitution provides for existence of a body known as the Local Government Service Commission which has been mandated with appointment powers of directors of the councils and some power to make rules of discipline. The powers that were have, for such a prolonged period, decided not to appoint any. The local government system, which is the backbone of our economic and democratic development has been crippled and made dysfunctional.

In that vein, as the mess is generally being cleaned, and as the errors are being rectified, we need not talk much. It is just hoped that the right thing will be done and that the hopes will not be betrayed further. But as many issues are being put on the table for such a cleanup and the issue of local government seems missing, it is in the right to ask; what about the local governments?

Pearson Nkhoma - Malawi: Is Malawi and Tanzania on the Edge of War

Pearson Nkhoma - Malawi: Is Malawi and Tanzania on the Edge of War

OPIONION ON TANZANIA’S CLAIM ON PART OF LAKE MALAWI

It begins with this quotation;

“We will never recognize or accept this claim: we will never agree to the aggression or proposal. The lake has always belonged to Malawi…Everyone new Nyer

ere as a coward and communist inspired jellyfish: We know while pretending to be a staunch supporter of the OAU, Nyerere is the worst agitator and betrayer of the cause for which the organization was formulated. History, geography or even ethnical knowledge will convince Nyerere that four districts to the south of Tanganyika belong to us by nature. It is only that we respect the feasible unification of mother Africa that we do not claim these districts. All that we are doing is setting historical truth.”

That is the statement of the then Malawi president Hasting Kamuzu Banda as a response to the claim by Tanzania on part of Lake Malawi.(FS Msafiri 5). In essence I do agree with the position that on the border line between Tanzania and Malawi, the lake is on the side of Malawi and not shared by both countries. However, I distance myself from the strong language used by the former president which is not quite diplomatic and Nyerere is one of a few African leaders I admire. My view is that the Tanzanian claim is based on wrong understanding of the origin of the boundaries between the two countries.

The main basis of argument by Tanzanians is that some of the old maps, for instance the 1937 map showing the British East Africa rail line depicts the border line between the two countries on the middle of the lake.( Msafiri). Additionally, they recognize that the origin of the boarders is the Anglo-German Treaty of 1890 also referred to as Helgoland-Zanzibar Treaty. This is an agreement reached between the British and the Germans which resulted in creating the boundaries of what constitutes Tanzania today.
The starting point is that the position of Tanzania is self defeating and unattainable. The treaty they are relying on did not create the boundary in the middle of the lake but on the shores of the east and northern side of the lake. The relevant provision of the treaty creating the boundaries of Tanzania, then Germany East Africa, Article 1 clause 2 states;

‘To the south by the line that starts on the coast of the northern border of Mozambique Province and follows the course of the Ruvuma River to the point where the Messinge flows into the Ruvuma. From there the line runs westwards on the parallel of latitude to the shore of Lake Nyasa. Turning north, it continues along the eastern, northern and western shores of the lake until it reaches the northern bank of the mouth of Songwe River…….”


The key word here is the shore. The treaty clearly provides that border runs to the shore and runs upwards towards the north along the shore. Now everyone knows that the meaning of the word shore in English is the line between land and water of water bodies such as lakes, sea and ocean. What the treaty is providing is not a border in the middle of the lake, but in the shores of the lake on the Tanzanian side. If the origins of the Tanzania national boundaries are from this treaty, where is the claim for part of the lake coming from? That is a mistaken belief in my view.


On the issue of the map, that is not an authority of which part belongs where. A map is just an attempt to depict what is on the ground and the same can be mistaken. The main basis of the boundary is the treaty not the map. I have difficulties in understang the inability of the Tanzanian claimers to see this simple fact. My considered view: Lake Malawi has never been a part of Tanzania and is not.

References
• Msafiri FS Post Graduate Thesis 2011http://edocs.nps.edu/npspubs/scholarly/theses/2011/June/11Jun_Msafiri.pdf

• The Anglo-German Treaty 1890. http://germanhistorydocs.ghi-dc.org/pdf/eng/606_Anglo-German%20Treaty_110.pdf

http://edocs.nps.edu/npspubs/scholarly/theses/2011/June/11Jun_Msafiri.pdf

edocs.nps.edu

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