he Ombudsman’s determination to nullify certain employment contracts at the Malawi Communications Regulatory Authority (Macra) for unlawful recruitment has provoked resentment after some directors were allegedly spared the whip.
The antipathy revolves around the director of telecommunications Henry Silika, who is also Macra’s acting director general (DG), director of legal services Thokozani Chimbe and director of finance Ben Chitsonga.
In her investigation report on Macra’s recruitment processes, dated May 10 2021, former Ombudsman Martha Chizuma substantially invalidated 16 employment contracts after detecting several procedural illegalities and irregularities.
Chizuma, now director general of the Anti-Corruption Bureau (ACB), nullified employment contracts of former director generals (DGs) Godfrey Itaye and Henry Shamu together with other directors and managers.
The reasons for the nullifications included advertising the positions through vouchers, which she said was in breach of Section 12 of the Constitution, Section 22 of the Communications Act (2016) and Section 4 of the Public Service Act, and also recruiting people without interviews.
According to the Ombudsman, no vacancy in public institutions is supposed to be advertised through vouchers, as such the recruitments through vouchers at Macra were unconstitutional, illegal, irregular and contrary to good administrative principles.
The other factor was the inclusion of the DG on the interviewing panel for positions of director which, according to Section 22 of the Communications Act, was illegal as only Macra board has the responsibility to recruit directors.
But during her investigations, the Ombudsman found that former DG Itaye sat on the panel as an interviewer for all the directors’ positions, and scored the candidates.
“After I brought to their attention the provisions of the Communications Act they admitted that the involvement of the former DG on the interview panel was an illegality as the DG is also responsible for implementing the decision of the authority… He cannot, therefore, at the same time be part of the decision-making as there would be conflict of interest,” reads part of the Ombudsman’s report.
However, Weekend Nation’s investigations show that Itaye also sat on the interview panel for Silika, Chimbe and Chitsonga, who were all spared by the Ombudsman’s whip.
For instance, a scoresheet on interview results for the position of director of legal services Weekend Nation has seen shows Itaye was one of the nine panellists and awarded Chimbe 87 percent against his opponent Daniel Chiwoni’s 64.
The office of the Ombudsman, as well as Macra, justified why the three directors’ contracts were not affected despite Itaye being part of the panellists but a governance expert and human rights advocates feel the development smacks of selective justice.
Macra spokesperson Clara Ngwira justified in an interview, saying the nullification of the 16 positions were based on complaints the Ombudsman received while there were no complaints against the three directors.
“Moreover there was no nullification that was based on that single ground of the DG being part of the interviews. The nullifications were made for several illegalities and irregularities on the recruitments,” she explained.
Ngwira said Macra board was currently also undertaking its own human resource audit and would make its determinations based on the results of the audit.
But governance expert Victor Chipofya Junior suspected an element of selective justice, arguing that if some contracts were nullified based on that Itaye sat on the interview panel, among other reasons, the rule should have applied consistently.
He said: “For me, it is an issue of selective justice. I don’t know how the Ombudsman operates, but I think if procedures were flouted, then the Ombudsman should have been proactive instead of waiting for a formal complaint.”
Chipofya Junior wondered why the Ombudsman annulled the employment contract for Shamu, who had already resigned, when there was no complaint against his recruitment.
“The office of the Ombudsman should be able to investigate by itself and find out the truth about what is being alleged.
“If Shamu was fired, yet there was no formal complaint against him, why not extend the same rule to others? This is selective justice and it is wrong for our democracy. Justice must be served equally to all,” he said.
Centre for Human Rights and Rehabilitation executive director Michael Kaiyatsa agreed with Chipofya Junior, saying based on the Ombudsman’s reasoning, the recruitments of the three directors could also be null and void since Itaye sat on their interview panels.
“Their continued presence at Macra could be seen as an indication of selective justice,” he said.
Shamu, a former Malawi Posts Corporation postmaster general before his secondment to Macra, was not subject of the complaint but the Ombudsman reviewed and cancelled his employment contract.
But the Office of the Ombudsman spokesperson Arthur Semba justified Shamu’s scenario, saying, “those are called unintended findings and are unplanned”.
“If that did not happen, it means the investigation was not presented with such [information] in its course,” he told Weekend Nation.
For all the nullified contracts at the organisation, the Ombudsman ordered that costs emerging from those injured by the directives should be settled personally by those who were responsible for their recruitment, including in some instances, former president Peter Mutharika, former Secretary to the President and Cabinet Lloyd Muhara.
The Ombudsman also ordered the new Macra board to advertise all the nullified contracts, a directive Ngwira said the institution has since complied with.
Meanwhile, Chitsonga who is answering criminal charges alongside Itaye and former procurement specialist Joseph Ngalawa has reportedly been cleared by Macra and has resumed work.
The three are accused of fraud and abuse of office for allegedly authorising payment of K8.5 million to Mapeto David Whitehead and Sons Limited for the purchase of the former ruling Democratic Progressive Party cloth during the campaign period prior to the May 21 2019 Tripartite Elections.
Ngwira told Weekend Nation that Macra’s policy in terms of criminal charges or cases states that one can be suspended if he/she is arrested and stays in custody for over 48 hours.
“Mr Chitsonga’s period in custody was less than 48 hours and this, therefore, meant a criminal-related suspension could not apply to his case. The board held its investigations and conducted a hearing related to the charges. The outcome of the same was that he was cleared and, therefore, reinstated,” explained Ngwira