Highlights of the Ombudsman’s determination on depressing disregard for rule of law, injustice and maladministration at MACRA in previous DPP-government administration

* That led to the firing of MACRA DG Godfrey Itaye and 15 others in 2021 after the Ombudsman’s expose

* As High Court revert them to the status that prevailed before the investigation by operation of law

* But instead, MACRA should still go ahead to pay all their terminal benefits up to the point when their contracts ended or would have ended

By Duncan Mlanjira

The disregard for rule of law, injustice and maladministration at Malawi Communication Regulatory Authority (MACRA) in previous Democratic Progressive Party (DPP)-government administration — that the Ombudsman discovered in her investigation after an anonymous whistleblower — has been legally acknowledged by High Court Judge Mandala D. Mambulasa in his ruling made on Friday, January 31.

Though he determined that the Ombudsman should not have gone ahead to investigate the case that was filed by an anonymous complainant over the employment of Director General, Godfrey Itaye and 15 others, Justice Mambulasa still considered the events that led to the whistleblower to approach the Ombudsman’s office, then held by Martha Chizuma.

We highlight the complaints the Ombudsman received in 2020, involving all 16 — which Justice Mambulasa described as “depressing”:

Godfrey Itaye; The Ombudsman found, among other irregularities, that Itaye’s employment as Post Master General in 2014 was illegal and was further found that he was illegally appointed by MACRA as its DG without being subjected to an open and transparent interview process as is required by law.

Benson Tembo; was employed as technical advisor on digital migration, seconded from Malawi Broadcasting Corporation (MBC) by the Government but the contract was found to be illegal.

Vilant Tambulasi (project monitoring officer); On December 20, 2018, Tambulasi successfully underwent interviews after MACRA had caused an advertisement for the vacancy of the position to be published in national newspapers.

The Ombudsman found that the advertisement inviting applications for the post of project monitoring officer was made by way of a voucher and that this breached the Constitution, the Communications Act and the Public Service Act.

Ombudsman further found that despite scoring the highest during the interviews, Tambulasi did not have the required qualification for the post of the project monitoring officer.

It was also the finding of the Ombudsman that by relying on her experience in project management as indicated on her curriculum vitae (CV) without conducting reference check, MACRA omitted its duty to do due diligence.

Henry Macheso (deputy director of human resource & administration); His contract was found to be substantially invalid for the reason that the advertisement for the position was made through a voucher.

The Ombudsman noted that any claim that Macheso may have should be made against the DG Godfrey Itaye, who had directed that the advertisement of the vacancy for the position should be by way of a voucher.

Stanford Njolomole (human resources manager); The Ombudsman nullified Njolomole’s employment contract as it was found to be substantially flawed and invalid for the reason that the advertisement of the vacancy for the position was made through a voucher.

The Ombudsman noted that any claim against the nullification of the employment contract that Njolomole may have should be made against the people who decided to advertise the vacancy of the post by way of a voucher.

Henry Shamu (replacement of Itaye as MACRA DG); The Ombudsman made a finding that Shamu’s appointment as Postmaster General of Malawi Posts Corporation (MPC) and his deployment to MACRA as DG was illegal and therefore a nullity.

The Ombudsman directed the Board of Directors of MPC and MACRA Board of Directors not to pay Shamu anything at the end of his contract by way of benefits and that if payment had already been made to him, the funds should be claimed back.

The Ombudsman noted that if the Shamu had any claim, it should be made against the members of the Board of Directors that illegally recommended his appointment as Postmaster General, the President who illegally appointed him as such and the former Chief Secretary to the Cabinet who illegally redeployed him to MACRA as DG.

Dr. Charles Fodya (deputy director of computer emergency response team (CERT); This contract was found to be irregular as MACRA had apparently breached its own Recruitment Policy which prohibited external recruitment before conducting internal assessments.

In addition, the interview panel that interviewed Fodya was allegedly irregular and effectively non-quorate as a result of non-qualification of one of the panelists making the results of the interview questionable.

The Ombudsman directed MACRA to institute fresh recruitment process and ensure that the post was filled in accordance with the legal and policy framework.

Frank Mndala (universal access manager); The contract was found to be marred by unconstitutional, illegal, irregular and unreasonable acts and MACRA was directed by the Ombudsman to conduct fresh recruitment of the position by 31st July, 2021.

Ruth Mgwede-Mdala (Director of Economic Regulation); the contract was found to be illegal and irregular and the Ombudsman further directed that no public funds should be used to settle any claim that she may have against the nullification.

The Ombudsman directed MACRA Board of Directors to recruit for the position by 30th July, 2021 in accordance with the law and policy that govern MACRA.

Emmanuel Cornelius Banda (marketing assessment & research manager); The advertisement for the vacancy of this position was made using a voucher and thus the contract was found to be unconstitutional, illegal and irregular. The Ombudsman directed the MACRA Board of Directors to recruit for the position by 31st July, 2021.

Timothy Sukali (director of postal); He was discovered he did not have the right qualifications for both positions that he held at MACRA. His employment was described by the Ombudsman as one that should never have been in the first place.

Fearless Malulu (director of internal audit); this employment contract was nullified because Malulu position was found to have never existed in the institution’s organogram and MACRA was directed that no public funds should be used to settle any claim that Malulu may have against the nullification of his contract with MACRA.

Any claim that Malulu may have should be made against individual members of MACRA Board of Directors that recruited him to the position in 2016 and individual members of the Board of Directors that renewed his contract in 2020.

Daniel Datchi (revenue assurance manager); the contract was found to be unconstitutional, illegal and irregular and MACRA was directed to conduct fresh recruitment for the position by 31st July, 2021.

Kumbukani Lisilira (deputy director of information technology); the contract was found to be unconstitutional, illegal and irregular. His recruitment was substantially invalid largely for reasons that the advertisement for the vacancy for the position was made through a voucher.

The Ombudsman directed MACRA Board of Directors to openly and transparently recruit for the position by 30th July, 2021 and that Lisilira was at liberty to apply for the post, if he wanted, after the position had been advertised.

Any claim that Lisilira may have should be made against the DG Itaye, who decided not to declare interest during the shortlisting process and who directed that the advertisement for the vacancy for the position should be by way of a voucher.

Tiyamike Zawanda (information technology support manager); the contract was found to be unconstitutional, illegal and irregular as the advertisement for the vacancy for the position was made through a voucher.

MACRA was directed to conduct fresh recruitment for the position in accordance with the applicable legal and policy framework, whose recruitment was to be done by 30th July, 2021.

McDonald Pato Phoya (administration manager); The reason for nullification was that MACRA did not afford an opportunity to two internal staff members that were eligible for the position, hence, irregular and therefore maladministration.

MACRA was directed to recruit for the position by 30th July, 2021 and any claim that Phoya may have in relation to the nullification of his contract was to be made against MACRA’s employees who decided against internal recruitment and also those who wrongly shortlisted him for the post.

While all these were deemed as total disregard for rule of law, injustice and maladministration, Justice Mambulasa declared the investigation as not having taken place by as according to the law, because they were filed by an anonymous complainant.

The Ombudsman did not act within her lawful legal authority, she acted beyond her powers thus “the investigation and the resultant determination and directives that were made cannot stand — they are a nullity”.