Minister of Transport & Public Works dissolves Roads Authority Board following results of an inquiry that unearthed numerous shortcomings

Former Board member Dr. Boniface Dulani

* Red flags on poor governance issues were raised by Board Member Dr. Dulani in November last year

* The Board of Inquiry led by lawyer Raphael Mhone was mandated to inquire into the competence of the Board

* The Ministry wanted to inquire was whether the Board failed to observe or perform any of the duties or obligations

* Conferred by the Act or any written law and performance of any Act done outside the Board’s Authority

By Duncan Mlanjira

The Board of the Roads Authority led by Joe Ching’ani has been fired following a report from a Board of Inquiry which Minister of Transport & Public Works, Jacob Hara constituted that has unearthed numerous shortcomings.

In his letters of termination to the Board members dated April 25, 2022, Minister Hara said he constituted the Board of Inquiry under Section 16(1) of the Roads Authority Act (2005) to enquire into the discharge of the Board’s duties under the Act or any other written law.

The report, which the Board of Inquiry — led by lawyer Raphael Mhone has released dated April 16, 2022 — says he was mandated to inquire into the competence of the Board to carry out any of the duties or obligations conferred or imposed upon it.

The issues that the Ministry of Transport and Public Works wanted to inquire was whether the Board failed to observe or perform any of the duties or obligations conferred by the Act or any written law; performance of any Act done outside the Board’s Authority and competence of the Board.

The determination from the Inquiry is that the Board that has now be dissolved was illegal as it did not comply with section 5 of the RAA in four aspects:

i. There was no member representing Malawi local government association (MALGA);

ii. NCIC had only 1 member instead of 2 on the Board;

iii. There were 3 members representing the general interest of the public instead of 2 as required by the section;

iv. The Board co-opted the Department of Statutory Corporations as an ex officio member when under section 8 of the RAA , the Board may only co-opt a person to attend deliberations.

The Inquiry also found that the dissolved Board did not understand its duties to have meetings as mandated by the law under section 10 (1) of the RAA on a bi-monthly basis and hence meets quarterly instead.

It accepted to hold two extra-ordinary board meetings in a year as proposed by management contrary to provisions of section 10(2) of the RAA and that it used as a sounding board for management decisions and was not in charge as per its mandate.

Hence its failure to appoint its secretary as required under section 8 and carrying out critical duties under sections 14(2), 15, 18, 24, 26(3) and 30 of the RAA.

On November 1, 2021, Board member Dr. Boniface Dulani wrote a memo to his chairperson Ching’ani citing some anomalies over the dismissal of Roads Authority’s chief executive officer (CEO) and director of corporate services, which he indicated he only learnt through media reports.

In the memo, Dulani registered his strong reservations in the manner the decisions were handled and made a plea for their reversal, “if at all that is possible”.

“In our call last week Thursday, you indicated that a gathering of all Board members, minus ex-official members, took place earlier last week over dinner where the matter of dismissing the two members of RA staff was discussed.

“It was not my understanding that this gathering was being treated as a duly convened Board meeting that could make resolutions as momentous as the one’s made. My expectation was that whatever was discussed would subsequently be presented at a duly constituted Board meeting for formal deliberation.”

Dulani, a political scientist who is associate Professor for UNIMA, was then outside the country and he took cognizance that he could not be expected to attend all meetings such as the one where the decision to fire the two officers was made.

“However, I would have expected that at a minimum, all Board members, including myself, would have been furnished with an invitation and agenda in the prescribed time period — I never received any such invitation.

“I am also aware that the decision to fire the two RA members was premised on clause 4(b) of their contracts which provides for termination with notice. I am not a lawyer, obviously, but I do think that this clause can be triggered without cause.

“Indeed, rules of natural justice entail that an employ must be given a chance to be heard before such decisions are made. I am not sure, however, if the two officers were given any chance to be heard.”

He also singled out that during another call, the chairperson “brought up the fact that in the recent site visits in the Central Region, a decision was made to reverse the recommendation of the joint ARC and CSC committee for the renewal of the contract for the director of maintenance”.

“Upon further reflection, I wish to register my concerns once again in the irregular manner this decision was made. I believe the right procedure would have been to table this decision at a full Board meeting for all members to deliberate and make a decision. Otherwise, Chair, I feel the decision reflects a lack of coincidence in the joint ARC and CSC committees to do their jobs properly.”

Dulani further reminded Ching’ani that during their first Board meeting in Salima, the chairperson emphasized that one of the pillars guiding his stewardship of the RA Board would be rule of law.

“I am failing to see how the decision to dismiss the CEO and Director of CSC, as well as the impromptu decision to rescind the decision of the Joint ARC and CSC Committees recommending the renewal of the contract of the Director of Maintenance, can be considered to be in compliance with the rule of law, given the manner they have been executed.

“Given my concerns, I am of the view that the decision to fire the two members of staff would not stand legal scrutiny. If we do not raise these concerns, we would be failing as Board members in our fiduciary duty as these decisions have a high likelihood of exposing the Roads Authority to unnecessary litigation and penalties.

“It is against the foregoing that pursuant to article 10(b) of the Roads Authority Act, I would like to request your office, Sir, to call for an extraordinary meeting of the Board in the next seven days where members can deliberate and make a formal decision on recent developments.

“Until that meeting, I would like to propose that the recent decisions to dismiss the two officers and reversal of the recommendation for the renewal of the contract of the Director of Maintenance, be pended,” he concluded.

Mhone’s inquiry, which started on January 10, 2022, started its preparatory work involving the appointment of the secretariat and legal team; involved liaison with the Roads Authority on administration matters concerning the hiring of venues and vehicles for purposes of taking down of evidence.

It had interface meetings with each Board member on his own; other stakeholders; some regulatory bodies involved and other management members of the Authority.

The report indicated that the Board flouted some governance procedures and recommended that “a new Board be appointed, paying special attention to educational and professional qualifications and skills mix to be represented rather than just appointing members to fulfill the constituents mentioned in section 5 of the Roads Authority Act in accordance with section 16(4)”

“The appointment authority must ensure that all members of the Board are in compliance with section 5 of the RAA” and on corporate governance, the Board to be replaced “must appoint its secretary under section 10(8) as other than the chief executive officer”.

The Board must meet bi-monthly in accordance with section 10 of RAA and that the Roads Authority management must stop usurping the powers of the Board under sections 23, 24 and 26(3) of the RAA.

All managers must attend their respective meetings e.g. all regional and procurement managers must attend technical advisory committees (TAC) meetings and that all designs for all roads should go to the Board for approval in line with section 12.

The report recommended that the Minister must inform the Board in writing of the intervals at which the Board must submit reports to him under section 15 of the RAA and that the Board must assert its authority and carry out its duties under sections 14 and 15 , 18(3), 24, and 25(e) of the RAA.

The Board must also assert its authority under sections 23, 24 and 26(3) of the RAA and liaise with the RFA accordingly and must be oriented on Ministerial policies and infrastructure procurement, its powers and governance structures in relation to the Minister and the RFA.

Financial Governance

i. It has been found that parts V and part VII of the RAA which require the Board to submit financial statements to the Minister under part V and get approval from the Minister under part VII for its budget are not adhered to as Management does everything and not the Board;

ii. failure to adhere to financial governance particularly in respect of part VII of the Act has led to failure to implement the National Transportation Master Plan and the realization of the RA Strategic Plan for 2017-2022.