Private practice lawyer Justin Dzonzi, who is also executive director of Justice Link, has asked Parliament to intervene to define who is a public servant in the country.
Dzonzi’s call, in an interview with The Nation, comes after three High Court judges in Blantyre last week delivered judgements with contradicting interpretations about whether lecturers in public universities are public servants.
Three lecturers, Matthews Ngwale from Kamuzu College of Nursing (KCN), a constituent college of the University of Malawi (Unima); Jessie Kabwila from Chancellor College under Unima and Sam Safuli of Mzuzu University (Mzuni), another public university, were among the aspirants the Malawi Electoral Commission (MEC) disqualified for being public servants.
On Monday last week, High Court judge Mike Tembo ruled that Ngwale was not a public servant as the definition of public office, as contained in Section 51 (2) (e) of the Constitution, was limited to public office in the civil service as decided by the Malawi Supreme Court of Appeal in the case of Fred Nseula (deceased) versus Attorney General (1999) MLR 313 (MSC).
But on Wednesday, judge Dunstain Mwaungulu, ruling in Kabwila’s case, differed with Tembo, saying university lecturers are public servants. Mwaungulu, who made it clear that he was not bound by the Supreme Court of Appeal ruling, said Kabwila was a public servant because she worked at a university that was enacted by Parliament and draws money from the public purse.
However, the judge allowed her to stand because she was not working at the university when she tendered her nomination papers since she had obtained leave of absence.
But on Friday, another judge, Dorothy Kamanga, ruled that Safuli was not a public servant.
Dzonzi said the difference in judges’ opinion can only be resolved by Parliament.
He said: “It’s high time Parliament defined what a public servant is because judgements are opinions of presiding judges. They are matters of opinions which are subjective.”
Dzonzi also called on the courts to have proper precedents.
He said if Mwaungulu’s judgement is taken into account, then the presidency is a public office since it also draws money from public coffers.
In Friday’s judgement, Kamanga also said public servants are guided by the Public Service Act whereas the Mzuzu University Act governs Mzuni lecturers.
“What is coming out clear from the submissions is that the Mzuzu University has its own conditions of service and that the Public Service Act has no application to those persons employed in the Mzuzu University,” said Kamanga.
Safuli is standing for People’s Party (PP) in Nsanje Central Constituency. His lawyer, Christon Ghambi, said the ruling applied to other Mzuni lecturers Mercy Kaunda who is representing PP in Nkhata Bay West and Professor Duncan Nyirenda, a Democratic Progressive Party (DPP) candidate in Nkhata Bay North.