Court rebuffs Itaye on Ombudsman determination

 The High Court in Blantyre has rebuffed former Malawi Communications Regulatory Authority (Macra) director general (DG) Godfrey Itaye’s application to put aside t h e Ombudsman ’ s determination to nullify his

 employment.

Former Ombudsman Martha Chizuma, in a report on May 10 titled Secure in Deception, nullified contracts of Macra former DGs Itaye and Henry Shamu alongside other directors and managers for unlawful recruitment.

An additional 16 employment contracts were also nullified for various reasons following an investigation by the Office of the Ombudsman into how Itaye and others were recruited by Macra.

Dissatisfied with the determination, Itaye, through lawyer Chancy Gondwe, applied for a judicial review of the decision and exercise of powers by the Ombudsman, but also an interim order for stay of the decision until determination of the review.

According to court documents we have seen, Itaye sought the court to declare, among others, that the Ombudsman’s

 decision to declare that his employment was illegally and irregularly made was an error in fact and law.

He prayed for: “A declaration that the Order or directive that the complainant’s contracts of employment should be nullified is unreasonable and against the law; A declaration that the order or directive that the claimant should not be paid terminal benefits under his 2016-2019 contract is unreasonable and against the law.

“An order staying the determination of the Ombudsman of 10th May 2021 up until the hearing and determination of the review by the court. A declaration that the Ombudsman overstepped her constitutional powers and mandate in making consequential orders when such powers are vested in the courts.”

But in her ruling, High Court Judge Rachel Sikwese said Itaye has satisfied both constitutional and statutory requirements to be granted permission for review of the Ombudsman’s determination.

She ordered: “The applicant has, however, not justified his application for stay of the office of the Ombudsman’s determination because being a complaint founded in employment law, the Applicant has adequate remedies under his contract of employment should the court find in his favour against the office of the Ombudsman’s determination.

“The application for permission to apply for Judicial Review is granted. The application for interim relief to stay the determination of the Ombudsman is denied.”

In Secure Deception, the Ombudsman stated that Itaye was initially appointed post master general (PMG) on August 27 2014 by former president Peter Mutharika without any interviews.

A year later, Itaye was appointed Macra DG following an extraordinary meeting held at Protea Ryalls on August 10 2015. Minutes of the meeting indicate that the board was informed that its recommendation of Andrew Kumbatira as DG was not accepted by the then minister of Information which meant there was a vacancy in the office.

The board reportedly was advised that government

 proposed that it should consider re-assigning Itaye, a thing they deliberated and recommended to the minister who on the same day accepted. Itaye’s appointment later was effective August 9 2015.

In May 2020, government redeployed Itaye to Malawi Posts Corporation (MPC) to serve as PMG and on June 17 2020, Muhara redeployed Itaye from MPC to Lilongwe Water Board. On November 16 2020 government deployed Itaye back to MPC.

Itaye’s current contract with Macra was supposed to expire on January 30 2022, but the Ombudsman nullified all the contracts and ordered Macra board to provide evidence of the nullification by May 30 2021.

Ordered Chizuma: “Mr. Godfrey Itaye’s employment as PMG in 2014 was illegal. Under Section 78 of the Communication Act (1998), the Minister of Information was mandated to appoint the PMG on recommendation from the board. Contrary to this, the evidence is clear that Mr Itaye was appointed PMG by the President through the then Chief Secretary Mr Willie Samute and facilitated by the former Comptroller of Statutory Corporations Mr ZangaZanga Chikhosi.

“None of these had the legal mandate to make the appointment. Further to this, there is no evidence that the recommendation was on merit after an open and transparent process as required by the Public Service Act. This was a maladministration.”

The recruitment processes, concluded the Ombudsman, were a mockery and boards were only used to rubber-stamp decisions already made.

On Shamu, who recently resigned from government service, the report says he was appointed as PMG without any interviews and that his contracts, including his deployment to Macra, were illegal.

The Ombudsman warned that political appeasement, nepotism and tribalism should stop being a yardstick for employment in public offices and further nullified over seven manager-level positions that were advertised as voucher adverts, saying the move was contrary to the law as no public office is allowed to use such a recruitment method.

Other contracts that were nullified were found to have no prerequisite qualifications and in some cases new officers were recruited to replace deserving serving officers while others were employed in positions that do not exist on Macra’s structure.

The Ombudsman further found that the board members for the 2019 cohort had no qualifications for such work and that only two of its members could ably articulate issues related to the board.

The Office of the Ombudsman is mandated under Section 123 (1) of the Constitution to investigate any cases of injustice. Under Section 5 (1) of the Ombudsman Act Cap. 3:07 of the Laws of Malawi, the Ombudsman has the mandate to inquire and investigate any complaint by any organ or employee of the government concerning unfair treatment and abuse of power, among others