LEGISLATIVE OVERSIGHT. HOW EFFECTIVE IN MALAWI

By Yasin Maoni

The sitting of the National Assembly of February 2013 comes right after and concurrently with a number of issues of concern to Malawians. There have been reported incidents of overspending in many departments of the Malawi government, including the state residencies. The very issue of drug shortage and mis-procurement thereof is among the hot issues.

One would expect a concerted scrutiny of the executive by Parliament in terms of financial probity and protection of the common interests of Malawians. This expected function of the National Assembly on the executive arm of government is within the concept of legislative oversight. The pertinent question is; how effective is the Malawi National Assembly in exercising the oversight function and holding the executive accountable?

Legislative oversight, according to L.B Lemos, connotes the notion of monitoring, supervising and controlling. The Ohio Legislative Commission defines legislative oversight as legislative review and evaluation of activities of the executive branch of government. In essence oversight refers to the watchfulness, supervision, control, monitoring, review and evaluation of the exercise of power of the executive and executive organs by the legislature.

Oversight is important as it ensures that the executive complies with legislative intent, improves efficiency, effectiveness and economical government operations, evaluates performance, prevents executive encroachment on powers, and ensures investigation of alleged instances of poor administration, abuse, waste, dishonesty and fraud. In essence oversight ensures that the executive arm and the administration are effective and efficient in their operations, and in the exercise of their mandate and authority as entrusted or delegated to them.

The Constitution of Malawi does not expressly provide that the National Assembly shall oversee the executive. However, it contains a number of provisions which are to that effect. One of such provision is where the President may be called to Parliament to answer questions, although rarely used, if at all used.

This is one ideal function of the legislature. But does our National Assembly effectively oversee the executive? Is there any meaningful control, supervision, review and proper evaluation of the exercise of executive powers and functions by the National Assembly?

There is obviously a Parliamentary Committee system in place which is a mechanism aimed at assisting the National Assembly attaining that end. Do they really achieve it? The practice is that they summon relevant public officers from the executive and administration when need arises for scrutiny and questioning, whereof reports are made afterwards. But where do these reports end? Do they really have an impact?. What if the report are brought into the house and discussed, does the debate, if at all, translate into necessary action by the executive?  

The converse of oversight is accountability. The one who is overseen is ordinarily made to account. In this regard the executive arm of the government is to be held accountable by the National Assembly. The notion of accountability entails some sort of action, decision or sanction after scrutiny, investigations or reporting. The essence is that those who have mismanaged, abused or misused powers or resources are held accountable. That includes those who have made bad and imprudent decisions which have proven costly to every citizen.

Do we really see such action in the Malawian scenario? Take for instance the issue of drug shortage. Who is going to be accountable? The same question can be asked in a number of issues like huge millions of abused allowances, imprudent decision in dismissing public officers from which government is usually losing millions, and many need-not-mention instances.

It is high time that our parliamentarians show the people of Malawi that they are not in parliament for the sake of remuneration, but to exercise their rightful functions, one of which is to oversee the executive and hold it to account. The executive arm of government should not be untouchable. It ought to be subject to scrutiny, assessment, control and sanction by all people of Malawi through representatives in the National Assembly.

As to the pertinent question whether this function is effectively exercised by the Malawi National Assembly, each and every one of us can judge.  But if it is effective enough, am yet to see the 

RECENTRALISATION? THE LOCAL GOVERNMENT SERVICE COMMISSION AND ITS POWERS TO APPOINT

By Yasin Maoni

After the popular transition from the one party state to a multi-party system, the Malawi Government embarked on a decentralization program. This was necessitated by the need to devolve political and administrative authority to district level.[1] As a result, a decentralisation policy was adopted by the cabinet in 1998. In the same year, a new Local Government Act was enacted.

With the intent of devolving administrative powers to local decision makers, the policy also made the councils possessory of the power to appoint, develop, promote and discipline their own staff.[2] The policy also unequivocally states in a separate section that the councils have the mandate to employ own staff.[3] The intent to devolve administrative powers, including those to appoint staff, also manifests itself in the Local Government Act of 1998. Section 6(1)(g) of the Act provides, similar to what is in the policy, the powers to appoint, develop, promote and discipline own staff as a function of councils. This power of appointment is in exception to the Chief Executives (CEs)/District Commissioners (DCs) who are to be appointed by the Minister[4] and Directors who are to be appointed by the Local Government Service Commission (LGSC).[5]

Many years down the line, the intent of allowing councils to have their own administrative authority, including the power to appoint own staff, seem to be eclipsed. This is evident from the fact that the Ministry of Local Government has put up adverts in the dailies and Weekend Nation intending to employ personnel into various District Councils. These are from grade M4 to M9 and are to be employed through the LGSC.  This begs an obvious question whether that is in order.

It is clear from the policy and the law as selectively explained above that the involvement of the Ministry and LGSC in the employment process of staff other than CEs/DCs or Directors firstly contravenes the National Decentralisation Policy, and secondly contravenes the law. In effect, it is a reversal or undesired resistance to the decentralisation or devolution of administrative functions to local governments. It appears to be on the re-centralisation direction.

It may be argued that the LGSC is rightfully acting on the powers granted to it by section 15(1) of the Local Government Service Act.[6] The LGSC is by that provision granted powers to appoint persons into the Local Government Service. That was the correct position before the 1998 policy and Act. Prior to the new local government regime, all employees in local governments were under one local government service as a consolidated entity, similar to the civil service.[7] The position has since changed on the adoption of the new policy and enactment of the new Local Government Act, 1998. In this new regime, the local authorities are body corporate in their own right and have the powers to appoint staff, except the CEs/DCs and Directors. The powers of the LGSC have been reduced to only the appointment of Directors.

In conclusion, the intended employment by the Ministry through LGSC of staff meant for councils, being staff other than the CEs/DCs or Directors, is in contravention of the National Decentralisation Policy and illegal for contravention of the Local Government Act of 1998.

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[1] National Decentralisation Policy 1998 1.

[2] Ibid 5 Bullet 6(g).

[3] Ibid 10 Bullet 8.

[4] Section 11(2) of Local Government Act 1998.

[5] Section 11(3) of the Local government Act 1998.

[6] Chapter 22:04 of the Laws of Malawi.

[7] Section 3(1) of the Local Government Service Act.