Kapera is illegally occupying office, must stand down

 IT is interesting to note that the former NBC Managing Director Memafu Kapera is still occupying the Managing Director’s office and exercising powers he no longer possess.

Mr. Kapera’s four-year contract as Managing Director lapsed in October and he cannot remain in office and carry on the responsibilities of the office of the Managing Director. A contract is a legal document that as a definitive period upon which it can be exercised and executed. Its expiry date legally concludes the existence of the employment contract. 

If Kapera continues to remain in office then he is holding office illegally and exposes the NBC to unnecessary liabilities as a consequence of the exercise of the powers he no longer possess.

Kapera must not think that he will remain in office and expect the government to first make a decision to either renew his contract or decide to appoint an acting Managing Director or for the process to appoint a new Managing Director. There is no such law or public service protocol (grace period) to allow Kapera to remain in office and wait.

Cabinet does not need to deliberate on Kapera’s intention to renew his contract prior to making any substantive or acting appointment. The power to make the appointment of a substantive or acting Managing Director is the prerogative of NEC and must be respected.

The NBC is established and regulated by its own law, namely the Broadcasting Corporation Act 1973. Section 21B provides for the appointment of the Managing Director and Deputy Managing Director and is in these terms;

21B.   Managing Director and Deputy Managing Director

(1) There shall be a Managing Director and Deputy Managing Director of the Corporation   who shall –

(a)  Be appointed by the Head of State, acting on advice, and

(b)  Be appointed for such period as the Head of State acting on advice determines;

There is no specific provision for an acting appointment however under Section 33 of the Interpretation Act, 1975, rules of statutory interpretation are codified there in to say that a substantive appointment also includes an acting appointment. This means that the process of making an acting appointment shall be the same as the process of making a substantive appointment.

It follows therefore that the Broadcasting Corporation Act, 1973 is the only law applicable to determine the appointment process for the Managing Directing or acting Managing Director. There is no other authority that can allow Memafu Kapera to remain in office and act or care-take.

If Kapera thinks he has brought about important changes to the NBC and believes he should remain to see those changes go into fruition then he should stay outside of the Managing Director’s office and wait for the Cabinet decision. Kapera is entitled to his own opinion and his opinion may not necessarily be the same as that of the NEC.

The Analyst, Via email