BY SEAN MATEUS
I will try to use will use very few words, no more than are required to say what ought to be said.
I want to you to understand something and understand it very well: In our jurisdiction, laws have hierarchy. Other laws, sit above others. They take precedence over those below them. Thus, for a law in the lower echelon to hold true, it must be in conformity with one above it. It must not offend it. If it does, the offending law, or its part thereof, becomes invalid to the extent of such an inconsistency. This arrangement applies to actions that are taken based on these laws.
The Constitution of Malawi sits above every other law in operation in Malawi. After the constitution, there comes Acts of Parliament. Acts lie above all laws in operation but are subservient to the constitution. After acts of Parliament, we have subsidiary laws/rules (I will restrict this piece to these). Subsidiary laws are not made by parliament per se, but an authority such as a minister or the chief justice to provide for a specific instance of a general provision under an Act.
To this end, not only do subsidiary laws have to conform to the spirit of the Act under which they are made, but every other Act of parliament in operation as well as the Constitution. Failure which they are void, or the offending part to the extent of its inconsistency with the principal Act and/or the Constitutional. Maybe the SPC, Collen Zamba, does not know this. But for sure the minister of Justice and constitutional affairs, Titus Mvalo knows it. And so does the Attorney General, Thabo Chakaka Nyirenda, the erstwhile government’s principal legal advisor.
With regard to Zamba’s administrative action and the related laws, we have the Constitution as the Supreme Law, the Public Service Act (PSA) as the principal Act of parliament (made under the Constitution) and the Malawi Public Service Regulations (MPSR) as the subsidiary law made under the PSA. Perhaps a little emphasis will do. The MPSR is not an Act of parliament. It is subsidiary law. It was made under section 30 of the PSA. Thus, the PSA as the principal piece of legislation, it lies above the MPSR. Therefore, actions undertaken under the authority of the MPSR, must not offend the spirit and intendment of not only the principal Act, the PSA, but every other Act in place as well as the Constitution.
Having said all that, it is worth noting that the MPSR does not provide for the hiring, firing or suspension of the ACB director. The Corrupt Practices Act (CPA) explicitly does. It is also explicit as to who can hire, fire and suspend as well as the circumstances allowing the hiring, firing and suspending of the ACB director. The CPA provides that only the president, with the involvement of PAC, can hire, fire and suspend the ACB director. Because of this explicit provision under the CPA, the MPSR can not be used to hire, fire or suspend the ACB director. Further to that, the president cannot delegate the exercise of these powers to some other person. They must, and can only be exercised by him because the law conferred these powers on the president and not some other officer. Anyone else acting to the contrary, is arrogating themselves powers not legally conferred upon them. And that is illegal.
In terms of removal, Section 6(2) of the CPA provides that a “person holding the office of Director (of ACB) may be removed from office by the President, with the confirmation of the Public Appointments Committee”. Thus in the current circumstances, apart from Lazarus Chakwera, no one else has the power to remove the incumbent ACB director.
In terms of suspension, Section 6(3) of the CPA provides that the “President may, if he considers’ it desirable in the PUBLIC INTEREST so to do, suspend the Director from exercising the duties of the office of Director PENDING INVESTIGATIONS TO DETERMINE WHETHER OR NOT THE DIRECTOR MAY BE REMOVED FROM OFFICE under subsection (2)”. Here, take note that the suspension for on office is highly qualified.
From these 2 provisions, it is a no brainer that the SPC, does not have the power to hire, fire or suspend the ACB director. She also does not have any kind of powers to interfere with the day to day discharge of duties of the ACB director’s. In fact, zamba’s purported act of restraining Chizuma from exercising the powers and functions of her office violates section 4(3) of the CPA which requires “the Bureau to exercise its functions and powers independent of the direction or interference of any other person or authority”. There is no law that even remotely purpot to confer those kind of sweeping powers on the SPC. Zamba’s purported suspension of Chizuma is simply illegal.
If Lazarus Chakwera has anything left in him resembling the drive to respect the rule of law in the land, he needs to go harder than a MF on Zamba. The SPC is a disgrace to the tenets of the rule of law and civility the higher office she currently holds demands.
Back to Section 6(3) of the CPA.
One limb of this provision states that the ACB director can only be suspended in the INTEREST of the public. This provision recognises the import under section 12 of the Constitution to the effect that the president is merely a public functionary exercising powers on behalf of the public. In case you have forgotten, section 12(b) of our Constitution states that all persons responsible for the exercise of powers of state DO SO ON TRUST AND SHALL ONLY EXERCISE SUCH POWER TO THE EXTENT OF THEIR LAWFUL AUTHORITY AND IN ACCORDANCE WITH THEIR RESPONSIBILITIES TO THE PEOPLE OF MALAWI. With that in mind, which “public” was Zamba or the president acting in the interest of when suspending Chizuma?
The other limb of the provision states that the PRESIDENT, and not the SPC or some other officer, may suspend the Director from exercising the duties of the office of Director “PENDING INVESTIGATIONS TO DETERMINE WHETHER OR NOT THE DIRECTOR MAY BE REMOVED FROM OFFICE”. In this regard, do we have active investigations that are aimed at determining whether or not Chizuma has to be removed from office that the public is not aware of? To the best of my knowledge, she is answering dubious criminal charges in court. Those are COURT PROCEEDINGS and not INVESTIGATIONS. Those court proceedings do suffice to as an active investigation under Section 6(3) CPA. Clearly Zamba and her boss have completely gone rogue on this one!
Whoever is advising Zamba, and perhaps the president too, is very likely high on some infinitely dangerous mind altering illegal substance. They are not helping them. Considering that Lazarus Chakwera loves nocturnal administrative actions, Zamba should have been gone by 12 midnight last night. That she is still comfortably holding on to her position says a lot about the appointing authority.
What of the view that Chizuma has been “interdicted” and not “suspended”? It’s all semantics. Zamba has interfered with the operations of the ACB in violation of written law by effectively suspending the ACB director where she had no power to do so. Courts look at the substance and not the form of the action.
The fact that the erstwhile Attorney General and his counterpart at the Ministry of justice see nothing wrong in this affair is even more troubling than Zamba having the guts to execute an act which she at law has no authority to undertake. By failing to offer honest and wise counsel to the president, these 2 men are complicit in this illegal enterprise. Only God knows what else they failed to say behind closed doors. While we are at, do you remember what I said the other day that Chakwera has poor counsellors around him? That he has men and women not fit for the task before them. Well, this is exactly what I meant!
In closing, let me emphasize that all this does not bode well for Lazarus Chakwera, the supposed champion of the rule of law. This is a guy who literally had rule of law as one of his selling points back in the day. But here he is lording over and perpetrating brazen lawlessness with a cheeky smile on his face. If this is happening in public in broad day light, we can only imagine what is going behind the closed doors. This notwithstanding, would it be out of order to ask as to whether this gentleman really understands what the rule of law entails?
