The finding of a Zambian court holds a salutary lesson for government appointees: ensure the legalities line up before breaking out the champagne
A JUDGMENT from Zambia’s court of appeal has left me thinking about the real meaning of independence.
The case concerns the appointment of the director-general of that country’s financial intelligence centre, the national agency mandated to handle information related to suspected money laundering, terrorist financing and other serious offences.
But although it is committed to integrity, honesty, impartiality and other worthy values, in 2013 the FIC appeared to be having some problems about staffing and, in particular, the appointment of its director.
From 2010 the FIC was headed by Miyanda Fearness Siamoongwa, who had a renewable yearly contract. Then the board decided he should be appointed director with a three-year contract, subject to the approval of the relevant minister, with effect from December 2012. He was sent a letter informing him of the appointment and the board contacted the judiciary about a date for the chief justice to swear him in.
On 21 February 2013, another request was made for the chief justice to swear him in, and the following day the board wrote to the minister, asking approval of the appointment.
Two months passed, and in May 2013, the board appears to have reversed itself, resolving that all the FIC positions should be filled via an “open recruitment process”. When the director’s position was advertised, six candidates including Siamoongwa were shortlisted and three, again including him, were interviewed.
At the end of that process, Siamoongwa placed third, with Mary Sikazwe – since approved by the minister and appointed director – in the top slot.
Unhappy, Siamoongwa turned to the courts for help, claiming he was entitled to salary and other allowances following his “appointment” in February 2013.
He lost in the high court, where the judge said all appointments were subject to the minister’s approval and so no valid contract of employment had existed.
He challenged that outcome at the court of appeal, but its recently delivered verdict was the same, again based on the fact that the minister’s approval was required for a valid appointment. The decision obviously holds a warning for any apparently successful candidate: make certain that all legalities have been completed before breaking open the champagne.
The last section of the judgment was particularly intriguing. Each time the board extended Siamoongwa’s contract, it praised him and how well he performed. Yet the board ranked him third in the interviews, citing “lack of aggressiveness” in his work style. What had happened to the glowing tributes made just a few months earlier, asked the court? And why was the top ranked candidate the one “least qualified and experienced”?
The judges said that in their “firm view”, if the board had really been independent and objective, Siamoongwa would have been the top-ranked candidate, and the board should then have “gone ahead to appoint him and present his name to the minister for approval rather than send three names for the minister to select from.”
The law says that the board “shall, subject to the approval of the Minister, appoint a director … on such terms and conditions as the board may determine”. Against these powers, the board “failed in its duty” by giving options from which the minister could choose whereas the law mandates the minister only to approve. “We therefore hope that in future appointments, the board will exhibit the highest level of independence and objectivity by performing its mandate in accordance with the law,” the judges concluded.
It’s disconcerting, the way the judges chastised the board for its lack of independence – but let the board’s decision stand. And the faint tone of disappointment in their concluding sentences sounds more like the chiding of a school counsellor than the strong judicial pronouncements we have become used to from the courts in SA.
- Financial Mail, 24 January 2019