Former Solicitor General and Principal Secretary for Justice Gertrude Hiwa has taken government to court, challenging her reassignment to the Office of the President and Cabinet (OPC) as chief director.
Lawyer Shabir Latif, who is representing Hiwa, yesterday confirmed getting instructions from her to seek a judicial review of the government’s decision to move her to the OPC to take up a position she views as a demotion.
He said his client considered government’s decision to be in bad faith on the basis that she was not given the right to be heard.
Said Latif: “The decision is unlawful in that it is a demotion and it contravenes Section 31 of the Constitution [which guarantees fair labour practice] and Section 43 of the Constitution [which provides for administrative justice], Section 5(2) of the Public Service Act, Regulation 1(169) of the Malawi Public Service Regulations [MPSR].
“The decision is procedurally unfair in that although the letter communicating the decision is headed ‘posting instruction’, the decision has the effect of a demotion and a transfer as defined under Regulation 1(170) of the MPSR such that Mrs. Gertrude Hiwa should have been given an opportunity to [be heard] before it was effected in accordance Section 43 of the Constitution and Regulation 1 (170) of the MPSR.”
The lawyer added that his client’s removal or transfer lacked justification in that there was no urgent need or demand of the service requiring her to take up the position of chief director as communicated by government.
On August 3 2020, Secretary to the President and Cabinet (SPC) Zangazanga Chikhosi communicated to Hiwa that she had been moved from her position in the Ministry of Justice to the OPC to serve as chief director for good governance.
Attorney General Chikosa Silungwe, who is the chief legal adviser to the government, did not pick the phone when called for his comment on the development.
However, the matter is scheduled for hearing tomorrow before High Court of Malawi Judge Ruth Chinangwa in Lilongwe.
Hiwa was replaced by Bruno Kalemba as Solicitor General.
The position of Socilitor General alongside that of Secretary to the Treasury and Principal Secretary for Lands, Housing and Urban Development were designated in Grade B at the same level with Deputy SPC, an anomaly that has proved expensive for the taxpayer, according to a report in our sister newspaper Weekend Nation of April 19 2020.
The occupants of the said offices have continued to enjoy perks of Grade B in a “personal to holder” arrangement wherever they are designated.