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Peter Mutharika ‘clings to power’

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President Peter Mutharika has gone back on his promise to trim his presidential powers by refusing to relinquish his appointing authority for the Malawi Communication Regulatory Authority (Macra) and Malawi Broadcasting Corporation (MBC) boards and their Directors General.

The development follows Cabinet’s move to shoot down amendments to the Communications Bill, among them the reduction of the President’s powers to appoint boards.

Mutharika said earlier this year that he had accepted recommendations from the Public

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Service Reform Commission to reduce his appointing powers.

But in an interview on Monday, government spokesperson Jappie Mhango, argued that the President is not clinging to power, saying what Cabinet considered was that the changes would not be consistent with the provisions of the Constitution.

The Daily Times has seen two draft bills, one which was sent to Cabinet dated February 10, 2015 and another which the members of Cabinet changed, dated October 30, 2015.

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Section 5 of the initial draft suggested that Macra should be totally independent in the discharge of its duties, performance of its functions and exercise of its powers.

“Except as otherwise provided in this Act, the Authority shall not be subject to the direction of any other entity or authority,” reads part of the draft.

The one amended by the Cabinet, however, says Macra may, where necessary, seek the general direction of the minister as to the manner in which it is to carry out its duties.

The proposed Bill that was sent to Cabinet says members of the Authority, other than exofficio members shall, upon being nominated, be appointed by the President subject to confirmation by the Public Appointments Committee.

“Where the President rejects any proposed nomination, he shall direct the organisation or institution that nominated the person to nominate another person,” says the old Bill, which proposed that professional bodies should nominate two of their members for the President’s consideration like the Malawi Law Society, the Engineers Institute of Malawi, Media Council of Malawi, Institute of Chartered Accountants in Malawi and Economics Association of Malawi.

The proposed Bill that was sent to the Cabinet suggested that members of the Board of MBC, other than ex-officio members shall, upon being nominated, be appointed by the President and be confirmed by the Public Appointments Committee.

However, the draft by the Cabinet says the minister shall, on recommendation of the Board of MBC, appoint the Director General, contradicting the one earlier proposed which states that the Board shall, subject to approval by the Public Appointments Committee, appoint a Director General.

But Mhango argued that any amendment that was not in tandem with the Constitution could not be adopted.

“When we are amending our laws, there is need to align them to the Constitution. The Constitution gives powers to the President to make appointments, so what is required to do is to amend the Constitution,” he said.

Mhango said if any amendments are made that are in conflict with the Constitution, then they will be invalidated.

“Yes, we can say it has to pass through Parliament but if it is not in line with the Constitution then it will be invalid,” he said.

Meanwhile, a telecommunications expert told The Daily Times that Cabinet ignored stakeholders recommended operators’ freedom to set tariffs according to market forces and to notify Macra before tariffs come into operation with Macra having powers to review such tariffs any time on justifiable grounds.

Cabinet, however, changed this provision, saying there is need for Macra’s approval before tariffs come into being.

The expert says this is detrimental to product and service innovation due to the inevitable delays in the approval process. A number of stakeholders came together to provide input during the revision process of the current Communications Act through a task force. As part of the development of the Bill, the last stakeholder workshop was held in November 2012 and included representatives from the Law Commission, the

Ministry of Justice, Law Society, telecommunications sector, broadcasting sector, postal and courier sectors, consumer bodies and the academia, among others.

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