President Joyce Banda’s aides and People’s Party (PP) parliamentary candidates Wakuda Kamanga, MacDonald Sembereka and Malani Mtonga are still out of the May 20 contest, Weekend Nation has established.
The Malawi Electoral Commission (MEC) confirmed this week that “in as far as we are concerned, all the three are disqualified and they are challenging our decision in court.”
“So, until the court rules, our decision remains, we never reversed it and they all know,” said chief elections officer Willy Kalonga in an interview this week.
On the flipside, there is a missing piece to complete a jigsaw puzzle that saw MEC seeking duo legal opinions on the matter when it could have used the Attorney General’s office.
MEC earlier allowed the three to contest—Kamanga in Kasungu, Sembereka in Mangochi and Ntonga in Karonga—without resigning because a legal opinion by lawyer Noel Chalamanda said they were not public officers.
In an interview, Chalamanda confirmed giving an opinion, “but I cannot be discussing lawyer/client issues in the press.”
They then turned around later disqualifying them following a second opinion by senior counsel Modecai Msiska.
While Attorney General Anthony Kamanga opted to stay mute on the matter this week, MEC suggests that the government principal legal adviser ‘ignored the commission’s request’ for legal opinion.
But other officers at the Ministry of Justice and Constitutional Affairs, who spoke on condition of anonymity, said last time MEC consulted the Attorney General was when the commission sought an opinion on Peter Mutharika’s presidential candidature in the wake of his US green card status.
Although Mutharika had already surrendered the card through the US embassy, Kamanga then advised MEC that such status could not lead to Mutharika’s disqualification.
When asked about MEC’s concerns, Kamanga only advised that “the best is you talk to MEC on those matters.”
Kalonga said: “We wrote them they haven’t responded to us up to now. Whenever we have any matter requiring legal opinion, that office is our first point of call, but they did not respond and we could not just sit seeing time pass,” he said.
Weekend Nation has also discovered that MEC has not consulted the Attorney General on other matters including their court battles with disqualified presidential candidate Professor John Chisi and parliamentary hopeful Jessie Kabwira.
Kalonga justified this one, saying “we know that the Ministry of Justice has very few lawyers and the law requires us to go outside in such matters.”
The three presidential aides are challenging the decision arguing that they had officially resigned on February 4, 2014, before nominations a week later, according to letters we have seen.
Government, through secretary for Human Resource Management and Development (DHRMD) Sam Madula, accepted the resignations on February 7.
Meanwhile, the Malawi Government also expects them to pay the public purse a month’s salary for resigning without giving notice as stipulated in their contracts, according to documents we have seen.
The matter of public officers in politics may just have started as the Office of the President and Cabinet (OPC) suspects there are many more who have beaten the system and are either contesting or failed at party primary elections stage.
“I cannot confidently say that currently all political aspirants have complied with the regulation in question, as you are aware the civil service is quite big,” said DHRMD publicist Rudo Kayira in an email interview.
According to circular number DHRMD/CIR/01 of 8th May, 2013, immediately a public officer hits the “political trail”—including at preliminary level or party primary polls—they have to resign because they have shown a political side which compromises the independence of public service.
The Constitution in Section 193 (1) says “members of the civil service shall ensure that the exercise of participation in political activities does not compromise their independent exercise of their functions, powers and duties as impartial servants of the general public.”
Subsection 2 (a) adds: “The civil servants so restricted shall have a right to resign in order to participate directly in political activities.”
Chief Secretary to Government Hawa Ndilowe wrote in May 2013: “As the 2014 Tripartite Elections approach, it is conceivable that some public servants are contemplating running as parliamentary, presidential or local council candidates.
“In order to maintain the independence and neutrality of the public service as enshrined in Section 193 of the Constitution and regulation 1.201 of the Malawi Public Service Regulations, I require all those that intend to run for political office to first resign from their public service position prior to embarking on their political campaign trail, including preliminary stage.”
Ndilowe instructed all principal secretaries and parastatal chief executives to bring “contents of this circular letter to the attention of all public servants working in your institution.”
But recent events, involving State House staff, shows that either OPC was caught napping or was powerless to deal with certain sections of the public service, according to rights activist Gift Trapence.
But Kayira said: “the public service relies on the integrity of such persons to do the right thing and resign, and in a majority of cases, that is what happens.”
Through circular number PSM/D/07 of 24th March 2014, Madula has asked principal secretaries, directors and parastatal chief executives to submit to OPC names of ‘politicians’ in the public service.
“I have been instructed to ask you to submit all names of officers under your charge, who have not resigned but participated in presidential, parliamentary and local council nominations,” he writes.
The circular implores all controlling officers to ensure that all such people have been deleted from the government payroll and “this department will check and confirm this in the April payroll.”
According to circular number DPSM/MSD/ADM/042, signed by Ndilowe, all ministries, departments and agencies, submit their payrolls to DHRMD “no later than 5th of every month with the exception of the Ministry of Education who are required to submit theirs no later than 28th.”
Asked why OPC did not ensure adherence to circular number DHRMD/CIR/01 of 8th May, 2013, Kayira said Madula’s recent letter was to ensure the same.
Meanwhile, while Kamanga and colleagues resigned, Madula’s letter emphasised that they need to pay government a month’s salary in lieu of notice.
“I am pleased to inform you that your application to resign has been approved. However, as per Article IX of the contract you entered into with Government, you are supposed to serve notice of one month or pay government one month salary in lieu of notice,” wrote Madula.
According to contracts we have seen, Kamanga was in grade D/P2 receiving an annual salary of K4 829 292 meaning he was getting K402 441 per month minus benefits.
At grade E/P4, Sembereka and Mtonga have to pay government K290 938 in lieu of notice for their annual salaries were pegged at K3 491 256.
On Wednesday, Kamanga refused to comment on whether he has paid the one month’s salary. Sembereka and Ntonga could not be reached.