President Lazarus Chakwera’s order to interdict without pay all public officials suspected of misappropriating Covid-19 funds has sparked debate, with some lawyers arguing the move is illegal while others say he is justified.
The Malawi Law Society (MLS) and a labour expert have since faulted Chakwera’s decision while a South Africa-based Malawian law professor says it is a generally acceptable practice.
Chakwera’s directive to Secretary to the President and Cabinet Zanga-Zanga Chikhosi on Sunday to interdict without pay public officers on whose watch mismanagement of Covid-19 funds occurred, came 10 weeks after Attorney General (AG) Chikosa Silungwe advised the Department of Human Resource Management and Development (DHRMD) and the Accountant General’s Office against the practice.
In a written response on Monday, MLS president Patrick Mpaka observed that the President’s order would expose the public purse to future indefensible claims under existing labour laws.
He said the AG’s February 4 2021 advice to the DHRMD and Accountant General that interdiction without pay is illegal, represents a well-settled and correct legal position on which the High Court pronounced a confirming judgement in 2016.
Said Mpaka: “But if the President is the appointing authority for the employees, he may, subject to certification of the unauthorised expenditure by the Secretary to Treasury, suspend a controlling officer without pay under the public finance management laws, or the appointing authorities can perform that directive.”
He suggested that alternatively, appointing authorities under the respective government departments can make use of the public finance management laws to suspend controlling officers, thereby effecting the directive.
Commenting on Chakwera’s directive, labour law expert Mauya Msuku echoed MLS and Silungwe’s position that interdicting public officers without pay is illegal, according to the Employment Act.
He said: “The legal position now seems almost settled that interdiction or suspension without pay is unlawful. So, unless one understands the context in which the statement was made, on the face of it, such directive would be amenable to challenge by affected parties.”
But South Africa-based Malawian professor of law Danwood Chirwa, in a written response on Monday, said the common employment practice in Malawi and throughout the Commonwealth states that there is nothing wrong with interdicting a public servant without pay if the interdiction is made upon hearing the employee and if the decision is based on the seriousness of the allegation of misconduct.
He observed that it becomes unfair to the employees when the interdiction is done without hearing them first and the disciplinary hearing waits for a criminal prosecution which takes long.
Said Chirwa: “Our problem is that somehow the Civil Service Commission doesn’t process disciplinary offences on time, which renders the interdiction unfair. Also, the practice of relying on the criminal courts before disciplinary hearing is also wrong. Disciplinary hearings must not wait for the criminal proceedings. These are independent processes with different standards of determining guilt.”
Speaking in an interview on Monday, Silungwe said he already shared the position of the law on the interdictions and that public officers know what the law says.
He said: “So, he [the President] has spoken, the instruction to us will come from the Office of the President and Cabinet in writing. We will see what kind of written instruction it will be. At the moment, we haven’t received a written instruction on our involvement.”
Regulation 40 (1) (a) of the Malawi Public Service Regulations, states that where an employee in the government is interdicted on grounds of misappropriation of public funds his pay shall be withheld.
However, in civil cause number 254 of 2016 between Dr Gift Sten Chinomba (petitioner) and the AG (defendant), on Chinomba’s interdiction from public office on no pay as part of a disciplinary process, High Court Judge Mike Tembo ruled that it was wrong to withhold pay of officers on interdiction.
The judge stated that although Chinomba was interdicted on suspected misappropriation of public funds, interdiction on no pay is in contravention of the statutory provisions on discipline as contained in Section 56 (3) and (4) of the Employment Act.
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