A prominent lawyer says Attorney General (AG) Kalekeni Kaphale’s suggestion on civil servants’ personal liability when making decisions has the backing of the law.
Kaphale suggested that civil servants that make bad decisions that cost government should be responsible for their decisions by deducting the compensation money from their salaries.
However, Malawi President Peter Mutharika, during a press conference last Tuesday in Lilongwe after returning from United States of America (USA) dismissed Kaphale’s suggestion.
Even Minister of Information, Tourism and Civic Education Kondwani Nankhumwa also echoed Mutharika’s dismissal of Kaphale, adding that it was merely a legal opinion but not government policy.
But a prominent lawyer, who asked for anonymity, backed Kaphale, saying he was only stating a legal provision.
“Statute Law (Miscellaneous Provisions) Act 5:01 of the Laws of Malawi clearly states that any civil servant is liable for the decisions that he or she makes. I am surprised that the President, a lawyer himself, dismissed the AG,” said the lawyer.
The lawyer suggested that the President might have understood that if the law is strictly enforced, civil servants will stop making decisions for fear that if their decisions turn out to cost government money, their salaries will be affected.
“Most of the decisions that civil servants make come from politicians. For example, if government loses Kasambara’s [murder] case, then the Director of Public Prosecutions [DPP] will be personally responsible. Yet the decision to arrest and accuse him could have come from somewhere,” he said.
Political analyst Henry Chingaipe said much as the AG’s suggestion made sense, implementation could be difficult because of the need by senior civil servants to make tough decisions.
“I understand why the AG made those suggestions. The aim was to make sure that government does not lose money through litigations. However, it will bring fear among the civil servants who might not know which decisions they make will cost government. Instead, they will decide not to be making decisions and that is bad for any government,” said Chingaipe.
He added that what is important is to make proper consultations before a decision is made, saying in such situations, collective decisions will not be difficult to make.
Another analyst, Joseph Chunga, accused President Mutharika of making public dismissal of his AG, saying it sends a wrong signal.
“By dismissing the AG publicly, the President gave senior civil servants a blank cheque to continue making careless, costly decisions as they have his backing. A proper way of addressing the issue should have been followed,” said Chunga.