Two convicted principal secretaries (PSs)—Cliff Chiunda and Grey Nyandule-Phiri—are still serving in their respective positions despite a court ruling recommending their removal, we have established.
A month after their conviction, the PSs to Treasury and Agriculture respectively, are still in office.
For instance, on April 16 this year, Chiunda as Secretary to Treasury (ST) signed a memo REF DAD/5/2/1 titled ‘Project implementation during the countrywide lockdown’.
Nyandule-Phiri was also in attendance during opening of this year’s tobacco marketing season at Lilongwe Auction Floors on Monday this week.
The High Court on March 6 this year slapped the two with a 24-months suspended sentence for contempt of court. They were found guilty of defying an order by the Malawi Supreme Court of Appeal to make a public apology for a faulty procurement and disposal of 100 tractors and 144 maize shellers–a deal popularly known as Tractorgate.
The equipment was bought in 2011 with a $50 million (about K37 billion) loan from Exim Bank of India.
In his ruling, High Court judge Charles Mkandawire observed that by disobeying the court order, the two PSs challenged the authority of the Judiciary, which is another arm of government, and the court asked the appointing authority for consideration that the two should no longer hold such high positions.
According to the ruling, what the two public officers committed was a serious breach and violation of Section 12 of the Constitution of the Republic of Malawi.
Mkandawire argued that the law also applies to the President who can be removed from office if he violets the Constitution, adding: “If this can lead to removal of the President [from office], why not such officers?
“Why should senior public officers be spared from disciplinary proceedings? I, therefore, recommend to the appointing authority, through the Office of President and Cabinet (OPC), to look into this issue as a matter of urgency; otherwise, the two respondents have lost their moral authority to lead others in these ministries.
“I am aware that my mandate was to sentence the two respondents or contemnors. It is, however, imperative that these courts should cultivate jurisprudence on the consequences that can follow once a public officer seriously violates the Constitution. This is to test our democracy whether we are indeed serious with constitutionalism,” reads the ruling, in part.
Chief Secretary to Government Lloyd Muhara did not pick our calls this week and did not respond to messages sent on his mobile phone.
But Ombudsman Martha Chizuma, whose findings after an investigation revealed gross maladministration in the sale of the equipment, explained in an interview on Monday that she sent a copy of the judgement to the Chief Secretary soon after the ruling.
The Ombudsman indicated that the document was forwarded to Muhara as a way of bringing to his attention the court’s sentiments.
“Accordingly, whether the court’s sentiments are actualised will depend on how much importance the appointing authority puts to those sentiments and their willingness to do the same. Ultimately, whether they actually have to be dismissed depends on OPC,” said Chizuma.
But Justice Link executive director Justin Dzonzi, in an interview on Tuesday, described the appointing authority’s failure to dismiss the officials in the civil service as an anomaly and contrary to the Malawi Public Service Regulations.
He believes that the inaction by OPC could only mean that the two PSs acted on instruction from their employer.
Meanwhile, the Parliamentary Committee on Government Assurances and Public Reforms has weighed in on the issue, saying the inaction by OPC is setting a bad precedent as it is contrary to what the law advocates.