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By Emmerson Muchangwe
The Public Service Committee chaired by Sinazongwe Member of Parliament Raphael Muyanda was the second Committee to have its report considered by the NCC plenary.
The first was the Public Finance Committee report to be tabled for consideration before the plenary sittings of the Conference which started on Tuesday, May 05, 2009.
The members of the Conference have since the beginning of the sittings been working round the clock to ensure that they produce the new Republican Constitution on schedule.
During deliberations of the Public Finance Committee report, article 312 (3) of the Mung’omba draft constitution was referred to the national referendum. This was after failure by none of the opposing sides was able to garner the required two-thirds majority vote required to break the impasse.
The article in question refers to terms and conditions under which the government would contract a loan.
The usual hot debates continued during the deliberations of the Public Service Committee as members want to be clear about the articles they are adopting.
In considering the Public Service Committee report, members considered an Article on conflict of interest which they adopted without much debate. This article prohibits public workers from doing anything that would be at variance with the functions of their office.
The Article on declaration of assets by public officers was also adopted with minor amendments. However, clause (2) of the same Article requiring spouses of public officers to declare their assets which had was earlier rejected by the committee was reinstated following a heated debate in plenary.
In debating the clause, members were of the view that if spouses were not liable to declaring assets, they would be used as conduits for hiding certain assets.
Articles to do with appointment to public body, codes of ethics for professional and other vocations and values and principles of the public service along with various clauses falling under each one of them, were also adopted without much debate.
The Article regarding the operations of the Attorney General especially clause (2), which says “ a person appointed Attorney General in clause (1), shall not be appointed as Minister or hold any other public office, was hotly debated to the extent that some members called for a division because they were not satisfied with the decision to adopt it.
However, those who stood up to call for a division were far less than the required one hundred (100) and thus, their demand for a vote could not be carried.
A division is a provision in NCC procedures that require that the members that are not satisfied with the decision of other members over an article would be required to stand up to seek for a vote to be taken in order to break an impasse.
When a vote takes place, it is prudent that a two thirds majority threshold is attained to break the division.
All the other clauses under that article were adopted except for clause (5) which refers to the circumstances under which the Attorney General could be removed from office. Under this clause, members agreed that article fifty-four (54) of the current constitution should prevail.
As for the clause regarding the Solicitor General’s office, members felt that this was similar in many ways to that of Attorney General and as such, all the provisions under this article should be relegated to subordinate legislation and that the age limit for appointment to this office should not be included.
When debating the article on the operations of the office of the Director of Public Prosecutions (DPP), the members devoted most of their time on the issue of whether or not the DPP should seek the authority of the court before entering a nolle prosequi in a given case.
After some heated debate, the members agreed that they should invite a former DPP or any other renowned lawyer to give them a presentation to enable them debate the issue from an informed perspective.
Indeed, Former Chief Justice Mathew Ngulube was invited on Tuesday, June 09, 2009 to update the members on the nolle prosequi.
In his presentation Justice Ngulube said the practice of entering a nolle prosequi by the DPP on various cases was common in all British Commonwealth Countries.
He said the practice was slightly different in Malawi in that although the DPP in that Country was free to enter a nolle prosequi, he or she would later be required to give a report to the Parliamentary legal committee on his action.
After Justice Ngulube’s presentation, the members finally decided to uphold the powers of the DPP to enter a nolle prosequi without seeking the permission of the court.
Another heavily debated article was one to do with Permanent Secretaries. Under this article, members rejected recommendations that for one to be appointed as Permanent Secretary, he or she must be a career civil servant and that the appointment must be ratified by Parliament.
The Mung’omba Draft Constitution had recommended that a Permanent Secretary shall be a career civil servant appointed by the President in accordance with the advice of the Civil Service Commission, subject to ratification by the National Assembly while the Public Service Committee recommended that a Permanent Secretary shall be a career civil servant appointed by the President in accordance with the advice of the Public Service Commission.
After examining the various pros and cons regarding this office members agreed that a Permanent Secretary should not be a career civil servant but that the appointment to the office would be done by the President in consultation with the Public Service Commission.
Members also debated at length matters on various Commissions and it was strongly felt that while these were important institutions which should be allowed to exist, membership to the Commissions should not be spelt out in the Constitution.
The independence and powers of Commissions would however be enshrined in the subordinate legislation.
Another interesting and hotly debated article is one referring to participation in politics by public officers.
This article provides in clause (1) that “a public officer shall not, while remaining a public officer, join or participate in partisan politics.”
In clause (2), it provides that “a public officer who seeks election to a political office shall take early retirement in the national interest if that officer has served for at least twenty (20) years or resigns from public service.”
These two clauses were also heavily debated but were both finally adopted.
Retirement of public officers was yet another article which was adopted without much debate. This article provides that public officers would retire on attaining the age of sixty (60) years and that one may retire with full benefits on the attainment of fifty-five (55) years.
It also gives a third option for those who have served government for twenty (20) years to retire early with government approval.
The article guaranteeing the right to pension, gratuity and retrenchment benefits for public officers was also adopted. This article spells out the various conditions governing the awarding of benefits to qualifying officers.
To reinforce article 284 (2) of the Mung’omba CRC, members also agreed to retain article 124 of the current Constitution which in clause 1 provides that “The law to be applied with respect to any pension benefits that were granted to any person before the commencement of this constitution shall be the law that was in force at the date on which those benefits were granted or any law in force at a later date that is not less favorable to that person.”
Another heated debate ensued when members considered a clause seeking to exempt from tax the pension of public service officers.
This clause was deleted as most members felt that it was highly discriminatory and that it would deny government an opportunity to raise enough funds for various developmental programs through tax.
An article referring to prompt payment of pension and retrenchment benefits to public officers was also heavily debated to such an extent that some members called for a division to be declared.
The main issue of contention was about maintaining retrenchees and retirees on the payroll until such a time that they are paid their dues.
The call for a division on the decision pertaining to this issue was not upheld because those who demanded it were less than the required threshold of one hundred (100) members.
An article on the establishment of the Investigator General’s office also attracted a lot of debate especially that the Public Service Committee changed its name from Parliamentary Ombudsman to Investigator General.
Despite the protracted debate, the article and its related clauses was adopted by the plenary.
In the same vein, members adopted articles relating to Defence Forces and National Security.
Ends…….
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