Malawi Human Rights Commission(MHRC) has faulted the Malawi Police Service(MPS) for dismissing Constable Esther Chiunjiza whose nude pictures went viral on social network in last March, saying the decision was legally unsound and outright unconstitutional.
She was charged with the offence of conduct to the prejudice of good order and discipline contrary to Section 52 sub-Section 23 of Police Act.
The commission has since recommended that the complainant must exercise right of appeal against her dismissal at the High Court in accordance with section 65 of the Police Act.
It has also recommended that the Inspector General (IG) of police Lexten Kachama Should invoke his powers and institute investigations against all police officers who participated in the posting the nude pictures on various police forums.
Presenting the findings to the media on Friday in Lilongwe, executive secretary for MHRC David Nungu indicated that the commission also wants MPS to take appropriate action against deputy inspector general of police Duncan Mwapasa for acting ultra vires and abuse of power in relation to his directive to the National Police Disciplinary Committee contrary to the clear provision of Section 58 of the Police Act.
The National Disciplinary Committee in its sitting set aside the decision of the Regional Disciplinary Committee to discharge the complainant from the police citing two reasons namely, that the law could be applied retrospectively, as the offence was committed at the time she was a police recruit and not yet attested member of the Malawi Police Service, and that the conduct in question did not constitute an offence as it was protected by Section 21 of the Constitution.
Said Nungu: “Consequently, the deputy inspector general did not have legal power to interfere with the said decision. He misguided himself on the law and acted illegally and unconstitutionally.
Only the police service commission is mandated to set aside decisions of the NDC on appeal by any dissatisfied party to the proceedings.”
But in an interview yesterday, National Police spokesperson James Kadadzera defended his seniors saying it wrong for the commission to be singling out names of officers suspected of abuse of office arguing that the process of dismissing Chiunjiza from the police was done collectively and not by one individual.
When pressed on whether the police will take appropriate action on the mentioned officers as recommended by the commission, the spokesperson indicated that there is need to more time to study the investigation report before commenting further.
He said: As far as I know the police followed all procedures in hearing of her disciplinary offence before she was dismissed as stipulated in the police Act.
But according to the findings in the report by the commission, when Mwapasa was interviewed he admitted that the complainant was acquitted of any wrong doing by National Discipline Committee on the grounds that when the incident happened she was not yet attested member of Malawi Police Service .
Mwapasa later said it was realised that Police Act provides for disciplinary code to all police officers and other persons employed in the Malawi Police Service as such he sanctioned another hearing to discharge her.
Among others the report also states that the complainant was not given adequate notice to prepare for her case and was verbally summoned to appear before the disciplinary committee.
Reads the report: “The complainant was prevented from summoning her witnesses in the process or cross- examining any police witnesses. The right for one to bring witnesses is guaranteed by the Constitution, statutory as well as natural rules of justice. The complainant was simply ambushed into the disciplinary proceedings without a chance to check the facts or consult.”
Chiunjiza who was accompanied by some family relations was present when the findings were being presented, but she refused to grant any interviews on her next course of action on the matter.