The National Assembly risks facing a legal challenge for flouting the Constitution for inviting direct applications from individuals for the post of Ombudsman, Weekend Nation has learnt.
In press advertisements of August 7 2015, the Clerk of Parliament (CoP) invited applications from qualified Malawians to fill the post of Ombudsman established under Section 120 of the Constitution of Malawi.
The office became vacant after the contract of the previous Ombudsman, Tujilane Chizumila, expired on June 30 2015.
The CoP indicated that interested candidates for the post must have a bachelor’s degree in laws or above with a minimum of 10 years of relevant experience.
But lawyer Justin Dzonzi warned in an interview on Wednesday the National Assembly could be in breach of Section 122 (1) of the Constitution if it goes ahead to hire an Ombudsman from applicants for the position.
Reads the section in part: “Nominations for appointment to the office of Ombudsman shall be received from the public by way of a public advertisement placed by the Clerk to the National Assembly and the successful candidate shall be appointed by the Public Appointments Committee in accordance with the requirements of this section.”
Dzonzi argued that based on the wording of the section, the legitimate candidates must first be nominated by someone else other than themselves prior to being considered for the post.
The Ombudsman Act, too, defers the appointment process to Section 122 (1) of the Constitution.
Dzonzi explained: “There would have been nothing wrong with Parliament advertising the vacancy in the office [of the Ombudsman] if the intention was to invite members of the general public to nominate individuals who, in their opinion, meet the criteria set by the law.
“However, if the advertisement was soliciting expressions of interest from the potential candidates themselves, then it was not within the spirit of the law and as such any such self-nominations would be illegal by that reason.”
Dzonzi said any person hired through a process of self-nomination would be illegitimately employed and the procedural impropriety of his recruitment would render his employment null and void.
Asked if the Constitution provides for special cases when Parliament can hire an Ombudsman without soliciting nominations from the public, he responded: “No! The core spirit of Section 122 (1) is that only persons who enjoy sufficient public confidence are qualified to occupy it. This is why members of the general public are, by law, required to nominate candidates because such public nomination is proof of a candidate’s popularity with the people of Malawi.”
Chancellor College law lecturer, Edge Kanyongolo, also urged Parliament to tread with caution on the issue.
“Just like any action taken against the Constitution, the hiring of an Ombudsman without following the set -down procedures can be challenged,” he said.
In an interview yesterday, National Assembly chief public relations officer, Leonard Mengezi, said the office had referred the matter to their legal counsel for guidance after Weekend Nation made a query as “the questions were very technical in nature.”
But he said the process of scrutinising applications and conducting of interviews would continue unless advised otherwise by their legal counsel.
“We don’t know where the anomaly is; hence, we will continue with the process until we’re advised otherwise,” said Mengezi.