Sata’s powers to appoint heads of parastatals questioned

A few days ago, President Sata informed the Nation through his press aide, Mr. George Chelah that he had appointed some Chief Executive Officers for some of the statutory bodies and at least one parastatal organization. The appointments made are that of Mr. Charles Mpundu as the Director General and CEO of the National Pension Scheme (NAPSA), Dr Nkumbula as the Commissioner and CEO of the Workers Compensation Fund, and Mr.  George Silutongwe as Managing Director and CEO of the Zambia State Insurance Corporation (ZSIC) Group.

While the individuals appointed to the said position may have the requisite qualifications and experience, the mode and style of their appointments raise a number of troubling issues from both a constitutional and corporate governance stand point.

It is not clear where the President derives power to make some of these appointments. In the case of NAPSA, the National Pension Scheme Act Chapter 256 of the Laws of Zambia provides in section 6 (2) that the Director General shall be appointed by the Minister (the Minister in this case being the Minister responsible for social security).  The President is not mentioned anywhere in the Act as having the authority to appoint the Director General for NAPSA.

In the case of the Workers Compensation, Act No.10 of 1999 also explicitly states at Section 16 (1) that the Minister shall, in consultation with the Board, appoint the Commissioner or CEO. Again, the Workers Compensation Act does not invest the president with any powers to appoint the CEO.

The constitutive documents for ZSIC also repose the power of appointing the CEO in the Board and not the President. Indeed Ms Muyenga the immediate past CEO of ZSIC was recruited and appointed by the ZSIC Board after being interviewed by the Board.

Soon after taking power, President Michael Sata also appointed Mr. Matongo as the CEO for the Food Reserve Agency. This was in spite of the Food Reserve Agency Act explicitly stating at Paragraph 8 (1) of the schedule that the Agency (Board) shall appoint the Director and CEO of the FRA.

A somewhat similar situation was orchestrated at ZESCO where the CEO was appointed at the instigation of State House without being subjected to any interview by the ZESCO board.

Since the PF took over power, we have seen a number of CEOs for various institutions being appointed in a manner that is neither transparent nor fully supported by the law. The appointments of the Media Chiefs at the state owned Daily Mail and Times of Zambia are other cases in point.  In both instances, the constitutive documents of the concerned companies state that the CEO shall be appointed by the Board. The same is true of the CEO for the Zambia National Broadcasting Corporation, where Mr Chibamba Kanyama was appointed Director General without being interviewed by the Board.

The question then arises as to what are the possible implications of these appointments?

Firstly and foremost, unless these appointments are being made by a competent and legitimate authority, it could be argued that the appointments are voidable at best or null and void ab initio  at worst.

To examine the legality of these appointments, let us consider each or some of the appointments.

As has been illustrated above, the President is not mentioned in either the NAPSA or Workers Compensation Acts as the appointing authority for the CEO. In both instances, this power is vested in the Minister acting in consultation with the Board.

In the case of ZSIC, FRA, the Daily Mail, Times of Zambia and ZNBC, it is only the Board which is authorized to appoint the CEO. Where then did the President purport to draw power to make these appointments? Having scoured and trawled all possible legislation, I could not find any clear provision which gives the President authority to make the appointments.  The closest I could come is Article 44(2) (g) of the Republican Constitution which stipulates that the President has power, subject to the constitution, to appoint such persons as are required by this constitution or any other law to be appointed by him.

I would submit that, it would be erroneous for the President to rely on this constitutional provision as a basis for his having made the appointment. I say so because in all the instances illustrated above, the law does NOT REQUIRE the President to make any of the appointments discussed above; the law requires someone else to make all those appointments. In some cases, the law requires the Minister to make the appointments while in other cases the obligation to make the appointments is placed on the Board. In no instances does the law require the President to make the appointments.  It follows therefore that the President could not have relied on Article 44(2) (g) of the constitution to make the appointments in issue.

In case one is tempted  to conclude that if the Minister  ,( who is lower than the President )is authorized to make the appointment of a CEO, then the President who  is responsible for an even bigger constituency should have even more power to make more than just such appointments, one only needs be reminded  of the  issuance of subsidiary legislation  to  see the fallacy of this argument.  Most enabling legislation for statutory corporations authorize the Ministers to pass regulations by way of statutory instruments to give efficacy to the concerned enabling legislation. It would be wrong to assume that since the President has greater powers than a Minister, he can proceed to pass the subsidiary legislation for a statutory body. Absurd as this sounds, it best illustrates what the President has done by making appointments which are by law reserved for either the Minister or the Board.  The consequences in both instances would be identical; both acts being void of legal basis would be a nullity.

Instead of making the appointments himself, the President should have directed his Ministers to first constitute the Boards for the said organizations. The Boards and the Minister, as the case may be , should then have proceeded to recruit the CEOs.

I therefore challenge the Law Association of Zambia, the Opposition Parties, NGOs and all concerned citizens who are interested in seeing our Constitution which the President swore to protect, to test this matter in our courts of law by asking the Courts to determine whether the President has powers to make the appointments referred to in this discourse.  It would appear that the lamentation that the constitution gives the President too much power, may not be true in this particular case as he has no power to make these appointments in the first place. The President has in my view usurped the powers of other entities.

The opposition has been particularly disappointing in this country in that they have failed to hold the Executive accountable. The opposition is by and large feeble and timid, only offering the occasional whimpers of discomfort when their interests are threatened. Otherwise, how does one explain the wanton and continuous violation of laws by the Executive. It is high time the opposition earned their keep in our democratic equation by offering real and effective checks balances. The opposition has lawyers and other resources they can call upon to test this matter in the courts of law. They should not always wait to debate issues in the house only – there are many avenues of offering checks and balances . They can take some issues to court, for instance. This is what happens in other countries, including South Africa. This is what nourishes democracy. I hope the opposition will rise to the occasion.

Apart from being patently unconstitutional, the appointments of the above CEOs by the President is an affront to good corporate governance.

All progressive Corporate Governance Codes, including our own LuSE Code strongly recommend that CEOs should be appointed by the Board of Directors. This is because the CEO reports to and is responsible to the Board. If the CEO is appointed by someone else, the CEO will almost invariably feel beholden to and answerable to that appointing authority. This situation will put the Board in a very awkward position as they will not be able to properly supervise, monitor, hold accountable, let alone, discipline such a CEO.

In the instances referred to above, I do not see how the NAPSA board (which is yet to be appointed by the Minister) will be able to have effective oversight over Mr. Mpundu who has been appointed by the President.

The same applies in the case of ZSIC Board vi a vis Mr. Silutongwe , the FRA Board vis a vis Mr. Matongo, the ZESCO Board vis a vis Mr. Chitundu or the ZNBC Board vis a vis Mr. Chibamba Kanyama. Ironically, all these CEOs are well aware of the corporate governance principle on this matter – they nevertheless proceeded to accept the appointments for which they were not interviewed by the competent authority.  They should be under no illusion that   the mode of their appointments make for potentially very incendiary relationships with their boards. Perhaps more troubling is the fact that after giving Zambians hope that appointments  in the public sector would be made  more transparently  and in accordance with the good corporate governance practices, the PF government has propelled us back into the stone age as far as corporate governance is concerned.   I challenge the Institute of Directors and all the Corporate Governance advocates whose silence over this matter is almost deafening , to rise to the occasion and remind the PF government of the   immense  benefits of good corporate governance.

I would venture to add, such appointments are not consistent with the PF’s professed crusade against corruption. It is as much corruption to make appointments that are not based on law as it is to accept illicit money.

The at hand is issue is that the President has no authority to make the appointments he has purported to make. The law is very clear on this issue. It is very disheartening that in the last seven or so months that the PF government has been in Power, President Sata has contravened the constitution on several occasions. As Zambians we should take it upon ourselves to oppose and resist this type of conduct . It appears Sata wants to run this country the way Kenneth

Kaunda ran the country. What Sata has forgotten ( assuming he knew it in the first place) is that Kaunda operated under a one party state , and as Chairman General of all Parastatal organisations had authority to hire and fire CEOs of parastatal organisations. Things have since changed and the President is no longer invested with such powers.  I challenge the Attorney General, who is the principal legal advisor to Government to inform the Nation what authority the President used to make the said appointments. I am also challenging the legal fraternity which is gathered in Livingstone for their Annual General Meeting, through their President Mr James Banda to pronounce themselves on this matter. We should not sit idle and watch as our constitution is raped day and night. We should take steps to nip the emerging dictatorial tendencies in the bud before we find ourselves in a similar situation as our brothers and sisters in Zimbabwe.

Please, please, we owe posterity better.

Minister Sampa says HH is hiding his parentage and had troubled childhood
From original sin to two bloodlines?

44 Responses to "Sata’s powers to appoint heads of parastatals questioned"

  1. Democracy  April 29, 2012 at 05:18

    It’s sad that our once mouth peace the post can stoop so low.Not just being spiteful but the writing is on the wall.You have just been using the power of the pen to fight your enemies and pushing your own agenda.Atase!You should not even use the word ‘our people’in your editorials .Fikabwalala imwe.How and just how can you remain mute over such type of constitutional breaches?Mwanya you better pay the the 16 billion kwacha plus interest.Remember MCS has only got a maximum 10yr mandate and it ain’t too far.I am sure the next president will come in squeeze your balls.From today I will never buy your paper Fikabwalala imwe sha!

  2. THE POST/NAMAKANDO  April 29, 2012 at 04:55

    Tisiyeni bambala tiligone!Tiyopa 16 Billieny imwe ya…

  3. Mwape D  April 28, 2012 at 17:32

    All the ministers fear Sata. This has spread to even the Civil societies. Zambians also fear the man. He is actually the most feared presido an Africa now. Who can oppose Sata?
    But I support him on one party participatory democracy he is trying to advance as well as govt doing business in business.
    Gogogogogogo my presido may be zambians will jerk up.

  4. Look at it  April 28, 2012 at 17:19

    Anything has a begining even failure. So we lookforward to pf’s perfect success or perfect failure. Only time will tell.

  5. Crazyboy  April 28, 2012 at 17:17

    Good article!

  6. Aeiou  April 28, 2012 at 16:59

    JJP,

    You aught to be ashamed of yourself. You have deitified the lawbreaker. But your subtlety does not hide the fact you are prepared to support lawlessness on account of your affiliation to the perpetrator of this lawlessness.

  7. secret blower  April 28, 2012 at 16:46

    you say zambia has gone to the dogs but even the dogs are saying the cannot see anything

  8. Aeiou  April 28, 2012 at 16:45

    So now lawlessness should be condoned merely on assumption that it is for the greater good in under tones of trust? Ok let us as well discard our national budget since we trust our leaders mean to do the best. Africans I don’t know… , let us go ahead and discard the legislator since our leaders have the best of intentions. What creepy madness is this?

  9. secret blower  April 28, 2012 at 16:43

    well represented.looksk at the big picture also.UKWA knows the grass roots and corrupt people and system very well.
    There is no hint of corrption in appointing these people.He does not want the rich to get richer and is mediating a system to nullyfy extraordinary earning by the prvious regime.

    However FRA seems to have troubled a lot of people within and outside and not supporting zambian women.Mtongo is a rigid man withoput sympoathy and H.E must look at replacing him.some mistakes are being made but there is a move to help the not so previlaged —NOW.

  10. THE SAINT  April 28, 2012 at 14:14

    THE QUESTION IS:
    What are the law makers and LAZ doing about it?

  11. Bwalya chabala  April 28, 2012 at 13:34

    This government need to really work extra hard to help many zambians from abject poverty,corruption.You can imagine someone who paid for electricity 2 years to this useless company called Meanwood property develepment whose contract was given by Zesco to do the project under Meanwood Ibex hill housing project has lamentably failed to provide the neccessity to the people who have buit houses there for years now.I urge the Minister of Energy to investigate why Zesco has to subcontract useless companies like Meanwood property development to do power project when the company has no capacity what so ever.People are pay K7,000,000.00 per household but these chaps are eating our money and are not proving the service.People wanted a new government to come and change the Mess that was left by the previous regime.

    All the best PF.

    Mr.XYZ

  12. Mwananjawanthu  April 28, 2012 at 13:33

    Iam not surprised at the analysis because some of your have vowed never to appreciate whatever our President does or will do in future. Just swallow your pain of losing the election and come join us we build our country. The President needs people that cant betray him thats why all those MMD cobwens must be removed from office with or without following procedures.

  13. JJP  April 28, 2012 at 12:47

    I actually fully agree with the author about the process of appointments. The only difference now is that under the most previous regimes, the president appointed real stooges but using boards. In other words, we had a ‘constitutional’ process in making appointments but with wrong people appointed. Today under the PF, we have an unconstitutional process being used in appointing individuals(CEOs) I consider fully suitable and deserving. It is, therefore, a question of apppreciating the best process. CEOs in either private firms or public firms in the world are headhunted. This is because they will hardly apply in an open tender because they may be doing well wherever they are serving. MBA students will acknowledge the fact through the various case studies!

  14. moses  April 28, 2012 at 12:08

    First and foremost, i want to salute the author of the article under discussion for the factual and elaborate presentation. At least, we still have zambians who can analyse issues and according guide others. What the President did was unconstitutional because he unsurped the powers of the minister of labour. Unless the argument is that the minister was temporarily removed and in that moment the President made decisions. If one is performing a delegated function, i believe that one holds powers to discharge those functions until such powers are publicly removed.Well, it very sad for mr. phiri and mr. mbewe and in case of mr. mbewe. government will have to pay him collosal sums of money due to breach of contract. Was this necessary or the issue is to punish anyone who is perceived to MMD?. TIME WILL TELL

  15. Ruth  April 28, 2012 at 10:59

    @LOGIC, if you are one of the best this country has, the system will spot you soon. I am coming to appreciate the quality of the appointment albert the path taken in making them.

  16. nanoB  April 28, 2012 at 09:26

    @JJP- you are covering up mismanagement. Mr. Silutongwe was sidelined at Professional Insurance. The company is going down fast and Mr. Silutongwe found an opportunity to sign a long term contract with assured money and moved on.He is a smart guy.

  17. STAND UP FOR ZAMBIA  April 28, 2012 at 09:22

    The problem we are facing now is that the vocal media has gone to the Dogs. We have very few media houses(new ones)who are speaking out today and that will cost Zambia. The movi tv, the post, phoenix, Qfm etc have all been compromised.
    When did we ever heard a President under MMD appoint a Parastetal Boss? just in the last days of MMD there was an issue with ZESCO MD, muvi tv and Post were vocal in its suspicion then, now they are the ones reading the wrong appointment on there headlines without shame!
    UKWA’s days are numbered, HE CAN RAN BUT HE CAN NOT HIDE, this is a fact!

  18. zero in  April 28, 2012 at 09:01

    UKWA JUST WATCHING YOU AT MOVIE TV DOING YOUR THING WHAT A COMABIAN YOU ARE GOING TO THE EXTENT OF CALLING YOU WIFE A WITCH
    WE MADE A MISTAKE TO GIVE YOU WHT YOU CANNOT HANDLE NOW THAT WE HAVE ESTBLISHED THIS UKWA SATA IBU WILL TAKE YOU IN A PLAY HOUSE COZ YOU BELONG THEIR.WE ARE
    ADVISING YOU TO START BEHAVING YOUR
    SELF.DID YOU SELL THE CHALLENGER JET AS YOU PROMISED DURING YOUR COMPGAIN PLUS THE HELOCOPTER I BELIEVE YOU DIDNT COZ YOU LIED YOUR WAY UP UKWA SATA IBU BEAN TRIPLE THREE SAD FOR ZAMBIA INDEED.HH TIME ACT IS NOW.

  19. Peace Maker  April 28, 2012 at 08:41

    Mmm. Good analysis.However, there will always be a very good counter argument against this article. For instance, loosely put we can say to every rule there is an exception or the law was made for us and not us for the law. These are some of the challenges that the Lawyers can face and will always look for a loop hole to justify something that may appear clearly wrong.

    Suffice, however, to state that it seems this is a sign of lack of confidence in the Ministers(system) or it is because our President is from the old school of management and hence it will be too much to expect him to behave otherwise. This is something we must know how to handle otherwise we will spend all our energy crying foul on everything when we, in the first place, should appreciate his level of understanding of issues in a democracy. If we cant convince him to embrace the democratic principles now, by whatever means, then we must play this game softly or else these five years will be wasted years for Zambia. It is a choice we made and those who voted for him should now take the full responsibility of guiding him and they must courageously do it without fear of favor. They should stop worshiping him. Anything from the opposition or ZWD will always be viewed as an insult or hatred etc.

    Over and above, the article can be taken as good advise!

  20. mark  April 28, 2012 at 08:28

    So what r we going to do reduce the president powers?

  21. Tmj  April 28, 2012 at 08:11

    The problem is not sata, the problem s the laws the land which are weak

  22. JJP  April 28, 2012 at 08:02

    The author has argued extremely well. Unfortunately, the appointments made by boards were the most flawed as these same boards still got manipulated to appoint individuals controlled by the system. The majority of the individuals appointed to head these parastatals have had no desire to go back into public office. If these jobs were tendered, most of them would never have applied. George Silutongwe was doing very well at Professional but was asked to perform his function for the country. Dr Msiska at Cabinet office was persuaded to give up his most lucrative job in Namibia to serve his country. I know other who were being groomed to be CEO in multinational organisations where they worked. At times, as is the practice in blue chip companies, even in football, you headhunt top positions as the open system may never get them. s

  23. Leo Mubanga  April 28, 2012 at 07:57

    “Will render boards irrelevant”

  24. the citizen  April 28, 2012 at 07:55

    Since my childhood in 80s I ve known this man as a very lethal and deceitful man,its a pity people labeled Chanda Chimba iii as a liar, whilst he just reported on true happenings and presented true evidence of what this man really is! 90% of it I conquered with him cos I saw them with my own eyes, this man is not good! His true personality will be revealing right before your disbelieving selves as for me,am just living like my president is God,not him!

  25. Leo Mubanga  April 28, 2012 at 07:52

    The problem of corporate governance is visible in many zambian run corporations. Zambians have a problem of being “boss” as apposed to manager. The boss mind of Micheal Sata is visible, and i find it difficult to understand how professionals manage to work under him. Its not LOGIC simply because he is president then he can appoint in any corporation. There is no LOGIC when applying the law in this instance. I.E. In defilement. Simply because a 25 year old boy has succesful penetrated with concent without bruisings a 15 year old girl does not mean its okey to sleep with her. Corporate laws are there to give confidence in reporting hierachy. What Micheal Sata is doing will render BOARDS relevant. In any company, a board chairman has big powers than the finance manager but its an acceptable for him imploy an accountant. I highly doubt the abuse of office clause will be put back, otherwise, Sata has already abuse more than all three presidents we have had, by the end of his term, he will equal KK’s 27 years of abusing the office of president.

  26. Bozo  April 28, 2012 at 07:40

    The circus is a place without laws, rules and do not expect the clowns and monkeys on show to adhere to the promise on the ticket.

  27. Developing Country  April 28, 2012 at 05:48

    Logic: The Minister is an agent of the President, meaning s/he acts on what H.E. directs her/him to do. If appointing certain individuals as CEOs to parastatals is one of the directives H.H. ooh sorry H.E. can give, to his Ministers, then he might just aswell do the appointments directly. Not good for corporate governance but ask Liato why he removed Mpundu from Workers compensation and Dr Chibumba from Napsa (its because RB wanted Easterners to run those institutions – lots of dirty stuff goes on behind the scenes which you wouldnt anybody to run those key institutions and make dirt stuff public!)

  28. tresphore soboya  April 28, 2012 at 05:41

    imwe ichi ichifyashi ni chi mistake tamulaishiba nanomba?

  29. zambia the real africa  April 28, 2012 at 04:13

    Check the constitution, the supreme law and you will see the the Minister has delgated authority from the President and in end the President still has the powers. Even under Chiluba, the late SC and Banda these appointments were there. In some instances they advertise,like the DBZ job, but we all know state house has the final say.

  30. t  April 28, 2012 at 02:09

    No wonder they are so reluctant to reinstate the ‘abuse of office clause’.

  31. Cosmas Kanguya  April 27, 2012 at 23:31

    LETS WAIT AND SEE. NDEPEMELA PA ZIRO. GOD IS IN CHARGE OF THIS COUNTRY. CHRISTIANS, LETS PRAY.

  32. Ndikusi Maswabi  April 27, 2012 at 22:35

    In real sense Boards have been rendered useless cos they will be appointed by Ministers when CEOs ave been illegally appointed by HE.I tremor to be part of such Boards.Anyway if he can create a Province or District single- handedly what do you expect.Thats why Barotseland does not want to be part of the circus.

  33. Dont complain as u pipo were warned by Chanda Chimba 3 about the pf manifesto on parastatals so dont complain as for all those ngis they are waiting to be deployed – just wait for 2016

  34. Mwinemushi  April 27, 2012 at 21:15

    Ministers are appointed by the President. The President gives powers to a minister. It is called deligation, ministers just help the President do his job, that’s why the President can fire a minister. The minister can appoint on behalf of the President.

  35. Musogoleli  April 27, 2012 at 20:41

    Michael Sata is over stepping the limits.He is clearly abusing the powers entrusted upon him.His Donchi Kubeba slogan is surely going to work against him in the next election.Sata as candidate in 2016 would be a clear opportunity for a fresh start in Zambian politics with HH at the helm…

  36. Alaleh - Dyonko  April 27, 2012 at 20:31

    MCS isn’t of this time. The problem that Zambia has is the PF being a one man Party. Its agenda is MCSs and not a consensus of a group of individuals. As a result there is a dysfunctional cabinet such that no one can challenge him. In the absence of an effective opposition it’s upto us as individuals who are noticing the many breaches to team up and challenge or seek judicial reviews for the breaches being done.

  37. andrew zimba  April 27, 2012 at 20:13

    The answer lies in the constitution. The powers of the president are from the one party state. Each new president has not fufilled the promise to reduce them. Submit to CRC. Do not boycot until one daythe people will prevail. So that all appointments will through normal applications and interviews on merit.

  38. lunga wa mwaza  April 27, 2012 at 20:10

    That’s how politicians behave,they try by all means to have their botilickers head parastatals company so that they easily controlled.even rb did that

  39. Real Ukwa  April 27, 2012 at 20:10

    I am told Lawyers in Livingstone attending LAZ meeting are divided on the issue. Can we have another Legal perspective on the issue.

  40. Livingstone  April 27, 2012 at 20:03

    That is what happens when you elect an illiterate buffoon!

  41. Real Ukwa  April 27, 2012 at 19:41

    Is that so? I wonder what has happened to TIZ, LAZ,Civil society and most of all UNZA. jack up you guys. Someone is playing with balls and you are watching. I will appoint more next week. Watch out?

  42. nampundu  April 27, 2012 at 19:37

    As Zambians we are still clapping and dozing at abena Ukwa give him chance! By the time we woke up its too late.

  43. DIASPORA  April 27, 2012 at 19:33

    Zambia has gone to the Baboons or is it the Baboons have come to Zambia?

  44. sister  April 27, 2012 at 19:31

    Very well presented. Mpundu, Chitunde, Silutongwe, Kanyama, Matongo and Nkumbula all know this but have ignored to follow their conscience. This will the last time they will hold any position in public sector. What is wrong with our intelligentia?

    More money in their pockets, let their brain think.

Comments are closed.