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House committee cautions Nocma board

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The Legal Affairs Committee (Lac) of Parliament has warned the board of the National Oil Company of Malawi (Nocma) against defying a determination by Ombudsman Grace Malera on the recruitment of Helen Buluma as Nocma Deputy Chief Executive Officer (DCEO).

The committee has described the board’s decision as executive arrogance and a disregard of the rule of law.

After Malera had inquired into Buluma’s recruitment and concluded that she should be removed from Nocma, Secretary to the President and Cabinet Colleen Zamba, in her capacity as Nocma Board Chairperson, responded to the determination by indicating Buluma was going nowhere.

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In her determination last month, Malera gave the Nocma board 30 days to nullify Buluma’s appointment and report back to her on action taken.

In an interview Wednesday, Lac Chairperson Peter Dimba said his committee will summon the SPC so that she can explain the decision to retain Buluma despite the ombudsman finding that her appointment was irregular and lawful.

“I have seen the report of the Ombudsman to Parliament on non-compliance of her determination. As Legal Affairs Committee, we will soon be convening a meeting where we will subpoena the relevant authorities who have defied the determination.

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“As Parliament, we will enforce compliance of the authorities using relevant legal frameworks. It must however be understood by the authorities that according to Section 123 (2) of the Constitution, the determinations of the Ombudsman are reviewable by the High Court on application by any person with sufficient interest in the case within 90 days of the determination,” Dimba said.

He added that simply defying determinations by the Ombudsman smacks of executive arrogance and a disregard of the rule of law.

“It is, therefore, important that the authorities must be vigilant to challenge any determinations that they think are not favourable to them before the High court within the given period of time as opposed to simply defying the determinations which they haven’t challenged,” Dimba said.

In line with Section 9 (1) of the Ombudsman Act, Malera reported Zamba’s decision to Parliament, copying the report to Cabinet and Attorney General Thabo Chakaka Nyirenda, who is government principal legal advisor.

In her letter dated November 3, 2022, Malera said Zamba’s decision to retain Buluma in her position as acting CEO in her new -month contract despite her findings is not supported by law.

She said Zamba’s non-compliance with the determination is out of order and contrary to the current administration’s philosophy of respecting the rule of law.

“Accordingly, Madam…, kindly note that your responses to the Ombudsman’s determinations are untenable. It is for this reason that you will note that in the determination in question you were requested to furnish the Ombudsman with a report on how the Nocma board would have implemented the directives that were made in the determination and not responses to the determination itself.

“Further to that, on the contrary, you have proceeded to retain Ms Buluma in her irregular and unlawful employment and to proceed with benefits, contrary to the directives in the determination in question and pay her terminal benefits,” Malera’s response read in part.

The Ombudsman further indicated that in the absence of a decision of a court setting aside her determinations, the Nocma board was not only proceeding illegally in categorically refusing to implement the determination but that such actions were also tantamount to undermining the rule of law.

In reaction to the Nocmas board’s stand on Buluma’s recruitment, the Malawi Law Society said the basic constitutional law which any holder of public office should know gives clear guidelines on what to do when one is unhappy with the Ombudsman’s decision.

“A board led by a top government official must lead by example. Withdraw this letter if indeed it has been written and refer the issues to the High Court if the Nocma Board strongly feels the Ombudsman’s decision is erroneous,” the statement reads.

Among others, in her inquiry, Malera found that Buluma had not applied for the Nocma DCEO job and that there was no such position in the State-owned firm’s organogram.

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