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.
