It’s a sad state of African politics that sometimes influential people attempt to hijack the institutional and democratic processes of doing things, for personal gain. Often money, lots of it, must have changed hands, and you end up with bigwigs attempting to influence or hijack decision-making in matters such as awarding of contracts, in legal or constitutional affairs, when the law is clear about how such things should be handled. This is bad for our countries across Africa, and is singularly the most common reason why our institutions fail to function properly. Leading to abuse that deprives the continent of billions. Because some people are willing to sacrifice the common good. In Malawi, a few days ago a story broke out on Nyasa Times alleging that one Ben Phiri is apparently pulling the strings behind the scenes to influence the Malawi Communications Regulatory Authority (MACRA) to award a licence to Lacell Private Limited. Now Lacell has an interesting history in Malawi. In 2008, they failed in its bid for a mobile license because they did not meet the criteria. Lacell came 5th in the tender process after the other participants were either disqualified or pulled-out. It seems that after months of lobbying politicians (see another link here) they threatened to sue the Malawi government, claiming that they had been led to believe that they would be awarded a license. That they had participated in pre-contractual negotiations and had invested in Malawi, therefore deserved a license. But the ‘license’ they claimed, for which they received some media coverage, never got authorised, let alone gazetted. The Malawi Communications Act 1998 stipulates that a license is not awarded unless it has been gazetted. You can engage in negotiations or receive political promises but unless a tender has been advertised, bids received and reviewed, the bidders vetted and the preferred bidder selected, the succesful bidders are then passed to the president through the relevant ministry…and after some obscure governmental protocols at the highest level, a winner selected. The resulting licence is gazetted, and only then is the licence said to have been awarded under the laws of Malawi. Any contract award that does not follow this set out procedure as laid out in law is in contravention of the law. Thus, for renegotiation with Lacell to begin out of the legally accepted procedure stipulated by the law, outside the tender process, is not in line with the laws of Malawi.
But this resumption of talks is not entirely surprising. In appointing boards of MACRA, the Department of Statutory Corporations [which is part of Office of President and Cabinet (OPC)] issues lists of competent persons which are recommended as members for nomination to parastatals. The President then approves such appointments. But for the current board of MACRA, which was appointed in November 2014, rumour has it that the recommendation list was largely ignored, or the legal process was not entirely observed. Whether this was politically motivated or not is anybody’s guess. What is clear is that when selecting a new board for a regulatory authority, it is required that the composition of the board have people who possess the skills, knowledge and expertise relevant to the functions and mandate for that institution. For MACRA, the Communications Act states that certain numbers from the outgoing board should be retained for continuity. This makes sense because a new board unversed in the operations, intricacies and current affairs need time to adjust. To examine all the issues which the board has been wrestling with, and come up to speed. But when more than half, or all of the previous board have been replaced, what’s to stop a noisy, disgruntled and desperate former bidder who for years has been claiming the moon, to take advantage of the situation and try to bulldoze its claims, perhaps helpfully assisted by some monetary gifts to important people within a newly elected government. This it appears, is where Lacell comes in. Because the last board of MACRA was replaced in its entirety, and surprise surprise, Lacell, who popped up during Bingu’s regime causing many headaches, who showed up again and again during Joyce Banda’s tenure, has once again showed up.
According to the OPC website: The Department of Statutory Corporations mandate is to ensure parastatal sectors optimal utilization and management of resources, in compliance with Government regulations, thereby contributing to national development. The Department provides financial, administrative and managerial oversight to the parastatal sector. Doesn’t the in compliance with government regulation mentioned in this mission statement mean that MACRA must operate by the law? Why then is Kondwani Nankhumwa, the minister of Information, Tourism and Culture, talking as if a deal with Lacell could be hashed outside the law? Disregarding the lawful processes. And the institutions that have been mandated to police and protect the processes?
Something fishy is going on. President Peter Mutharika would be best advised to put a firm stop to this fishy business, because it is not going to help Malawi in the long run. Our public institutions must be allowed to operate independently, without duress, and in line with the law.