Police shake-up Stirs confusion

President Peter Mutharika’s replacement of Malawi Police Service (MPS) Inspector General (IG) Lexten Kachama with Rodney Jose in an acting capacity has stirred confusion with a legal scholar observing that the Constitution does not provide for the position.

In an interview yesterday in the wake of the developments announced by the Office of the President and Cabinet (OPC) on Monday evening, legal scholar Mwiza Nkhata, who is also Malawi Law Society (MLS) president, observed that Section 154 of the Constitution which covers the appointment of the IG does not provide for the acting position and any such person appointed would still have powers and authority of an IG.

He said looking at the history of the office of the IG, its nature was that the person must maintain the confidence of the President, giving an example of former IG the late MacWilliam Lunguzi who successfully challenged his removal during the transition from single-party to multi-party democracy in 1994, but the court could not order his reinstatement.

On whether Jose’s appointment would require confirmation by a committee of the whole National Assembly, Nkhata—who teaches law at Chancellor College, a constituent college of the University of Malawi (Unima)—said the constitutional provision could be interpreted to mean the IG included an appointee as acting IG even though it could be temporary.

He said: “Now it is not immediately clear in Section 154 if IG includes acting IG. But generally, if you get a person in acting capacity he will have the same amount of authority. The decisions that this person will be making are not any less powerful than someone who would be there in full capacity.

“In matters of labour law, when there is a position like that, in many instances you cannot have someone in acting position because the tricky bit is the law has not qualified the acting position and whether that is subject to confirmation of Parliament or being acting, there is no need.”

Nkhata said the appointment of an acting IG could be a way of the government running away from having two IGs in office considering that Kachama has not officially reached retirement age.

Section 154 (4)(d) provides that a person holding the office of IG is subject to removal by the President if that person has reached over the age prescribed for retirement.

In the case of Kachama, he is not due for retirement until June 30 2018 and the former Deputy IG (Operations) Jose, if confirmed by Parliament, will only be in office for less than 18 months. He joined MPS in 1979.

A statement signed by Chief Secretary to the Government Lloyd Muhura released on Monday indicated that Jose would be acting IG with Duncan Mwapasa as deputy IG (Operations) and John Nyondo as deputy IG (Administration).

The statement said post of substantive IG would be subject to confirmation by the Public Appointments Committee although Section 154 (2) actually says the appointee would be confirmed by the National Assembly as a Committee of the whole House.

Two weeks ago, when reports emerged that he was being replaced, Kachama told The Nation that he had no knowledge that he was due for retirement in June.

He said: “My retirement period is known by the government and they have not communicated to me. If I was retiring, the government would have announced and would have also announced the appointment of another IG.”

Under the Malawi Public Service Regulations, a person reaching mandatory retirement age is supposed to be informed three months in advance.

However, government spokesperson Nicholas Dausi, who is Minister of Information and Communications Technology, yesterday said Kachama had reached retirement age and was advised to proceed on leave to exhaust his leave days.

But it was the minister’s explanation that he understood the appointment of acting IG to mean Jose would become a full IG on Parliament confirmation.

Parliament’s Public Appointments Committee chairperson Lingson Belekanyama observed that the Chief Secretary was not correct because the committee did not confirm the appointment of IG, but could summon him on certain matters regarding his position.

He was not sure if the acting IG would be confirmed by Parliament.

Political and governance commentator Ernest Thindwa said the confusion on the issue was an indication of the need to professionalise the public service with a clear career progression outline.

He said: “When that [the outline] is not there, you have such appointments not based on merit, but political expediency.”

Robert Chasowa, a fourth year engineering student at the Polytechnic, was found dead on campus on September 24 2011. Police said his death was suicide, but a postmortem by a College of Medicine histopathologist, Charles Dzamalala, established that the death resulted from assault to the head with a blunt instrument or instruments.

Jose is named as the link between Chasowa and company and then police IG Peter Mukhito. Jose was then serving as Southern Region Police commissioner. n