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.