High Court rules that appointment of Kalumo as Immigration Department’s director general was illegal and unconstitutional

Brigadier General Kalumo (retired)

* The appointment was non-consequential and of no effect as it is illegal and unconstitutional

* It is the responsibility of Minister of Homeland Security to make the appointment and not through directive from President Lazarus Chakwera

By Duncan Mlanjira

The High Court has today, June 6, ruled that the post of Brigadier General Charles Kalumo (retired) as Director General of the Department of Immigration & Citizenship Services is non-consequential and of no effect as it is illegal and unconstitutional.

This follows an application of judicial review that was applied for by Chikulupiliro Zidana on behalf of the State challenging President Lazarus Chakwera’s appointment of Kalumo, arguing that the Minister of Homeland Security was supposed to have done so.

“This Court also grants an order quashing the impugned decision by which the defendant appointed the Retired Brigadier General herein,” says the judgement by Justice Mike Tembo.

“This Court also orders the Minister of Homeland Security, in line with the relevant law, to consider to fill the position of Director General of Immigration and Citizenship Services as that is within the purview of the said Minister.

“Consequentially, it is ordered that Brigadier General Charles Kalumo (retired) cease to hold the position of Director General of Immigration and Citizenship Services having been appointed by the defendant in contravention of the relevant law.”

Meanwhile, before the judgement, the Immigration staff allegedly were about to hold an industrial action to force the authorities fire Kalumo by closing airports and borders.

The letter, allegedly written by the Commissioner, outlines that the Department’s officers “presented a petition to the Ministry of Homeland Security demanding Kalumo’s resignation or firing “over maladministration, poor leadership or lack thereof, incompetence, among others”.

“Prior to delivery of the petition, officers sought an audience with Brigadier General Charles Kalumo (rtd) to discuss issues affecting the Department and mapping the way forward. Unfortunately, the Director General shunned the meeting.

“Such conduct is not suitable for the office of the Director General. Resultantly, the petition was delivered on 27th May, 2024 and the 10 days expire on 5th June, 2024.

“In view of inaction from the Ministry, this internal communication serves as an instruction to commence industrial action from Thursday, 6th June, 2024.

“All borders, airports inclusive, shall stand closed until such a time the Ministry addresses our demands. Be advised that this protocol serves to protect the image of the Government at large, and the Department in particular, which has been severely injured by the conduct of Brigadier General Charles Kalumo (rtd).

However, the Ministry of Homeland Affairs has warned the Immigration officers that the alleged industrial action of closing airports and borders as industrial strike is tantamount to mutiny, criminal trespass and conspiracy to commit a felony on their part as national security officers.

A memorandum from Secretary for Homeland Security, Steve Kayuni dated June 5, further warned that “picketing at any apparatus of the Department of Immigration & Citizenship Services is an affront to national security of the Republic of Malawi [and] upon arrest and conviction by a court of law, there is a punishment of several years’ imprisonment”.

Meanwhile, it is reported that Kalumo —who has had a love-hate relationship with almost the whole Immigration Department ever since his appointment — has already tendered in his resignation.

In his application for the judicial review, Zidana contended that President Chakwera’s decision to appoint Kalumo was illegal and irrational since the Director General was not in the public service at the time of his appointment.

He cited Section 3 of the Immigration Act that requires that appointment of a Director General or Chief Immigration Officer be from members serving in the public service — to which the putative (assumed) defendant on behalf of the President did not contest.

Zidana contended that Kalumo’s appointment contravened section 29 of the Public Service Act which prescribes that anyone above the age of 60 years can no longer serve in public service.

He asserted that Kalumo was aged over the prescribed retirement age at the time of his appointment.

The Zidana argued further Kalumo was appointed from outside the public service and was through a public notice from the Office of the President & Cabinet on 5th August, 2022 — made in pursuant to the powers of his office provided for in section 89 of the Constitution and section 6 of the Public Service Act.