The Law Association of Zambia (LAZ) has explained that the reason why President Edgar Lungu cannot appoint a substantive Auditor General is because there is no State Audit Committee to recommend someone for his consideration.
But LAZ says having no Auditor General for such a long time is a serious problem which needs to be addressed.
Last week, Special Assistant to the President for Press and Public Relations Amos Chanda said President Lungu was eager to have in place a functional Auditor General, but there were constitutional impediments preventing him from appointing a substantive office holder.
“In line with some of the discussions he had with Mr Speaker [Dr Patrick Matibini], it’s a whole range of decisions and systems that are linked between the Executive and Parliament. The appointment of the Auditor General is not just a function of the Executive; it is also the function of Parliament. When the President sends a name there, how long will Parliament take? The President has no control over Parliament; it is a totally independent organization. The President is working very hard to make sure that all the constitutional impediments that has delayed the appointment of the substantive holder; if there must be a stop-gap measure to circumvent certain processes so that the Auditor General substantively is appointed…the President is consulting with all the arms of government to ensure that there is a substantive holder,” said Chanda.
“He’s concerned that it’s taken long, but the [Republican] Constitution prohibits him from nominating without following the Constitution. So, the President is very desirous to ensure that there is a substantive holder in that very important office of governance and oversight institution.
And when contacted to explain what Chanda meant by saying the Head of State was failing to appoint a substantive Auditor General due to constitutional impediments, LAZ vice-president Andrew Musukwa said according to the 2016 Constitution Amendment Act, there needs to be a State Audit Committee, whose mandate is to recommend someone to be considered for appointment as Auditor General before the President can finally recommend such a name to the National Assembly for ratification.
Musukwa, however, admitted that the failure for the country to have an Auditor General for such a long time was a problem, saying it needed to be addressed soon.
“Article 234 of the constitution says ‘there is established the State Audit Commission. (2) The State Audit Commission shall— (a) subject to Article 249 (2) oversee the operations of the office of the Auditor-General, as prescribed; (b) make recommendations to the President on the appointment of the Auditor-General; and (c) perform such other functions as prescribed’. So the only way an Auditor General can be appointed [according to the new constitution] is if the State Audit Commission recommends. And the only way the State Audit Commission can recommend is if it has been established and there are people present. As far as I am concerned I have not heard of any State Audit Commission having been established. I think that’s the problem, [but] I don’t know. This is according to new constitution, but [I am not sure if this is so], I am only guessing that that is the most probable reason,” Musukwa explained.
“Then if you go to article 249, it says ‘there shall be an Auditor-General who shall be appointed by the President, on the recommendation of the State Audit Commission, subject to ratification by the National Assembly (2) The office of Auditor-General shall be decentralised to the Provinces and progressively to districts, as prescribed. (3) The following shall be prescribed: (a) the qualifications of the Auditor-General; (b) the operations and management of the office of the Auditor-General; (c) the recruitment, supervision, grading, promotion and discipline of the staff of the Auditor-General; and (d) the finances of the office of the Auditor-General’. National Assembly is there yes and it’s sitting, no problem. But State Audit Commission is where I think there is a problem. It also says in article 251 that ‘where the Auditor General is absent from Zambia or he is unable to perform his functions for other causes, the President shall appoint a person qualified to perform the functions of the Auditor General until that appointment is revoked or until the Auditor General returns to office. Now, the problem with this one is that there has not be an existing Auditor General for this article to be activated, so we have a problem.”
Asked what the implications of not having an Auditor General for a long time would have on the country, Musukwa said it was a mess.
“In short you are saying what are functions of the Auditor General, well, it means the functions of the Auditor General cannot be performed. The functions of the Auditor general include; auditing the accounts of State organs, state institutions… this is article 250 now [where all functions of the Auditor General are clearly defined]. So it means the functions of the Auditor General cannot be performed under article 251… basically it means the functions of the Auditor General cannot be performed. So it’s a mess,” he regretted.
And asked what kind of message the failure to appoint a substantive Auditor General was sending to the international community and investors, Musukwa said, “That I cannot answer really, honestly. But all I can say is that this is a bad situation. And now that you have brought it to our attention, the council will review it. It’s a very serious thing, I will be honest with you. We need to look at it as council and see how we can help government to come up with a resolution to this problem, especially that there is no State Audit Committee Commission. But it’s a very serious problem, it’s a very serious problem.”
Meanwhile, Musukwa said the 2017 Auditor General’s report was unlikely to be released because the only person who was eligible to sign it was the Auditor General.
“The Auditor General’s report can only be signed by the Auditor General himself and nobody else. Since we don’t have an Auditor General, it means [that] this report cannot be signed. Like last years report, in fact last year’s report is supposed to be presented this year by 30th December. But they can’t present it because there is no Auditor General. If someone else other than the Auditor General signs it, it means that me who has stolen can walk away free because only the Auditor General can sign this report. So those are the implications. So this read more on article 211 and it will explain to you more about the implications. It basically talks about the financial report, it talks about the minister responsible for finance, that the minister shall within one month after the release of the Auditor General’s opinion lay the Auditor General’s opinion on the table of the House. Now because the Auditor General whose opinion has to be put on the table of the House, has not been appointed by the President,” said Musukwa.