Ombudsman’s determination on firing of former MACRA DG Itaye and 15 others exposed depressing total disregard for rule of law, injustice and maladministration at MACRA

Former MACRA director general, Godfrey Itaye

* Though the Ombudsman wrongly assumed jurisdiction to investigate the matter or that it lacked jurisdiction to investigate the anonymous complaint

* The Court declared that there was no investigation carried out by the Ombudsman at MACRA as she lacked jurisdiction

* Itaye and the 15 others remain MACRA employees by operation of law but should be paid all their terminal benefits up to the point when their contracts ended or would have ended

By Duncan Mlanjira

High Court Judge M.D. Mambulasa has determined that the Ombudsman should not have gone ahead to investigate a case filed by an anonymous complainant of total disregard for rule of law, injustice and maladministration at Malawi Communication Regulatory Authority (MACRA) over the employment of Director General, Godfrey Itaye and 15 others.

This is in Justice Mabulasa’s ruling made on Friday, January 31 of the case in which former Itaye and the 15 others sought for legal relief over their termination of employment in 2021.

However, despite that the Court has not agreed with the manner in which the Ombudsman assumed jurisdiction to carry out the said investigation — but “if truth is to be told, the Report actually makes a depressing reading of total disregard for the rule of law, injustice and maladministration at MACRA”.

Justice Mambulasa emphasised that the Ombudsman, then Martha Chizuma, “had a genuine cause to carry out an investigation at MACRA [but] it is just that the Court has not agreed with the manner in which the Ombudsman assumed jurisdiction to carry out the said investigation”.

“This is one sad tale of the end not justifying the means,” he said, also ruling that MACRA did nothing wrong in law in complying with the Ombudsman’s determination — and, therefore, as there was “no investigation” that was carried out, it means Itaye and the 15 others “revert to the status that prevailed before the ‘investigation’”.

This means that Itaye and the 15 others, remain MACRA employees by operation of law but instead, the Judge ordered that “they should be paid all their terminal benefits up to the point when their contracts ended or would have ended”.

For some of the claimants in the case who were seconded from other institutions by the Government, the Judge ruled that it will be up to MACRA “to liaise with those institutions and Government for payment of any terminal dues for the duration they worked in the seconding institutions, if at all”.

He emphasised that MACRA “did nothing wrong in law in complying with the Ombudsman’s determination — after all, it had two options only; to comply with the Ombudsman’s determination or to seek review under section 123(2) of the Constitution”.

The Judge observed that MACRA opted to comply with the Ombudsman’s determination and that “it cannot be faulted for choosing that option” and he went on to entirely agree with the argument advanced by MACRA’s legal counsel, Benard Ndau that it was not open to the MACRA to disobey the Ombudsman’s determination.

“As a matter of fact and law, determinations of the Ombudsman must be respected and complied with at all times by all public authorities, unless and until, they have been stayed by a competent court of law pending review or set aside or quashed or declared a nullity after review.”

“However, as it has turned out, the Ombudsman wrongly assumed jurisdiction to investigate the anonymous complaint in this matter — that was not a problem of MACRA.

“The Court therefore agrees with the argument by Advocate Mr. Edward Ndayera Dzimphonje that there is no legal basis upon which liability could be imposed retrospectively for any public authority’s compliance with a then lawful and binding determination.”

For Itaye, the complaint was that his employment as Post Master General in the year 2014 was illegal and that illegality followed when he was appointed as MACRA DG without being subjected to an open and transparent interview process as is required by law.

The others are Dr. Benson Tembo, (who was technical advisor on digital migration seconded from Malawi Broadcasting Corporation (MBC) by the Government); Vilant Tambulasi (project monitoring officer); Henry Macheso (deputy director of human resource & administration); Stanford Njolomole (human resources manager); Henry Shamu (replaced Itaye as DG on secondment from Malawi Posts Corporation where he was Post Master General and his deployment was deemed illegal and therefore a nullity).

Others were Dr. Charles Fodya (deputy director of computer emergency response team (CERT); Frank Mndala (universal access manager); Ruth Mgwede-Mdala (Director of Economic Regulation); Emmanuel Cornelius Banda (marketing assessment & research manager); Timothy Sukali (director of postal;  Fearless Malulu (director of internal audit); Daniel Datchi (revenue assurance manager); Kumbukani Lisilira (deputy director of information technology); Tiyamike Zawanda (information technology support manager; and McDonald Pato Phoya (administration manager).

After her thorough investigations, the Ombudsman faulted the appointments of all 16 employees, which Justice Mambulasa acknowledges that the exposure she determined exposed “depressing total disregard for rule of law, injustice and maladministration at MACRA”.

But Itaye and company argued on the application of the law that section 123(1) of the Constitution provides that it must be alleged that a person has suffered injustice and not any allegation of injustice that can be made by an anonymous individual.

He observed that the law envisages an injustice that a particular person has suffered for which there is no remedy by way of court proceedings or an appeal or other practicable remedy can be submitted to the Ombudsman.

“In the final analysis, the Court finds and holds that the Ombudsman did not demonstrate or satisfy herself that a person had suffered injustice in respect of the recruitment and appointment of the individuals…before assuming jurisdiction to investigate the complaint that was laid before her office as required by section 123(1) of the Constitution.

“Furthermore, as we have seen, the scheme of the Ombudsman Act is such that it is the same person who has suffered injustice who must lay a request or complaint before the Ombudsman. No where, both in the Constitution and under the Ombudsman Act, does it provide that an anonymous person who has suffered no actual loss as it were, may complain to the Ombudsman.

“In assuming jurisdiction to investigate a complaint where no person had suffered injustice, the Ombudsman arrogated to herself powers which the Constitution and the Ombudsman Act did not give her.

“[She] did not act within her lawful legal authority. She acted beyond her powers. The investigation and the resultant determination and directives that were made cannot stand. They are a nullity.

“At law, no investigation was actually carried out,” determined the Judge, adding section 8(1)(a) of the Ombudsman Act requires that the Ombudsman must notify the person who laid the matter before him or her under section 7(1) or (2) of the outcome of such inquiry or investigation.

“Where the Ombudsman investigates an allegation of injustice from an anonymous complaint who did not suffer injustice, how would she fulfill this requirement of the law? The Ombudsman cannot pick and choose which sections of the Ombudsman Act he or she will comply with and others that he or she will not.

“Second, section 8(1)(b)(i) of the Ombudsman Act is to the effect that the Ombudsman shall after holding any inquiry or investigation in accordance with the Act take appropriate action or steps to call for or require the remedying or reversal of matters or instances specified in section 5 through such means as are fair, proper and effective, including by negotiation and compromise between the parties concerned.

“If the complainant is an anonymous person, how would the Ombudsman use such means as are fair, proper and effective by negotiation and compromise? For argument’s sake, the Ombudsman could not have brokered negotiation and compromise with MACRA alone without a known complainant who had suffered injustice at the hands of MACRA, if the Ombudsman had decided to invoke his powers under this provision.

“Third, if the Ombudsman had jurisdiction to inquire into or investigate complaints from an anonymous person, it would be possible for the same person to file a case with the courts and pursue a remedy there, contrary to the time-honored legal principle, that does not require citation of any authority, that no one person can pursue a claim in the same matter in two different fora.

“Fourth, if the Ombudsman had jurisdiction to inquire into or investigate complaints from an anonymous person, how would the High Court conducting review proceedings, as is the case now, satisfy itself that indeed the complainant had sufficient interest in the matter at hand and that it indeed did not appear that there was any remedy reasonably available by way of court proceedings or an appeal or other practicable remedy?

“Fifth, what if the anonymous complaint later turns out to be untrue when the Ombudsman has already spent its meager financial resources to carry out an investigation into the matter? How would the complainant be held to account for that? Would that be prudent use of financial resources on the part of the Ombudsman?

“All these issues and questions go to show that it was never the intention of Parliament that the Ombudsman should inquire into or investigate anonymous complaints where a person is not able to demonstrate sufficient interest that he has suffered injustice,” so said the judgement.