Malawi Law Society faults Chakwera order on public officers interdiction without pay: ‘Illegal’
Malawi Law Society has faulted President Lazarus Chakwera for ordering public officials suspecting of squandering the Covid-19 funds be suspended without pay and backs the legal advice given by Attorney General (AG) Chikosa Silungwe to the Department of Human Resource Management and Development and the Accountant General’s office that the withholding of pay for public officers on interdiction is illegal.
In a national address on Sunday, Chakwera said he had directed the Secretary to the President and Cabinet Zanga-Zanga Chikhosi, to interdict without pay those public officers on whose direct watch the financial mismanagement occurred.
President of the Malawi Law Society, Chalres Mpaka, said Attorney General’s legal advice represents “a well-settled and correct legal position” on which High Court pronounced a confirming judgement in 2016.
Mpaka said if the President is the appointing authority, he may, subject to certification of the unauthorised expenditure by the Secretary to Treasury suspend a controlling officer without pay under the public finanace management laws.
In the letter dated February 4 2021, Silungwe says his office has been receiving communication from various law firms about public officers being interdicted without pay.
Silungwe further states that officers should not be denied their pay regardless of the circumstances that led to their interdiction, stressing that is illegal.
A labour law expert Mauya Msuku supported the AG’s stand, saying monetary punishments by employers are prohibited.
“Suspension without pay is unlawful,” said Msuku.
He said: “An interdiction is based on an allegation and it is wrong to punish someone before they are proven guilty.
In civil cause number 254 of 2016 between Dr Gift Sten Chinomba (petitioner) and the Attorney General (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.
Reads the ruling in part: “ The plaintiff will, therefore, remain on interdiction but with pay. This should spur the defendant to take disciplinary action against the plaintiff fairly quickly knowing that he is on pay while on interdiction.”
The court further observed that in public service, employees are normally put on interdiction on no pay which results in the responsible authorities forgetting to finalise the disciplinary process.
In his speech on Sunday, President Chakwera also directed Secretary to President and Cabinet to ensure that those officers are referred to the relevant Service Commissions to either clear their names or be sanctioned and disciplined, saying that disciplinary proceedings should begin within 14 days.
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I now believe that the MLS is a deterrent to progress
A gang of greedy and unpatriotic thieves, they are now busy working with these interdicted uncivil servants to sue the government for billions. This is why i always say backward nations like Malawi cannot develop with democracy, no nation in the world has ever developed without an iron fist after which they transition to democracy.
I hate it when the Attorney General offers incomplete advice just like in the MEC Commissioners case. The AG should be providing options analysing the pros and cons of each option and give the President a recommendation on the best option to achieve the intended goal. He can’t just say, you can’t do this or that without offering alternatives! He should learn from Ralph Kasambara who coined the term ‘constructive resignation’. That was an innovative way to achieve the same goal without breaking the law.
In this case, maybe interdiction without pay is bad. Just suspend them and arrest them so they can be given a chance to clear their names. Those found guilty should be summarily dismissed! That means they go home with no terminal benefits and Summary Dismissal is allowed in labour law.
In the meantime, please continue paying them their salaries, but things like cars, fuel benefits, etc should be withdrawn because these are meant to facilitate actual work. I tell you even a PS will feel the pinch once you withdraw these perks. Their actual salaries are peanuts and taking away the many allowances will be as good as interdiction without pay
As long there is evidence, a thief is a thief! Even she/he is a public officer or their Ceo! And a thief, who steals money which is needed to fight a deadly pandemic is lethal …! Consequent and strict measures are needed!
A Magufuli type of President would have not hesitated to fire them straight away without any benefits, but after recovering the stolen money!
These lawyers are some of the worst people in the world, complete confusionists. Most of them would happily milk the government’s already depleted coffers to defend these thieves that have been interdicted.
And frankly for the MLS to have a chap like Mpaka leading and speaking for them says it all. He is amongst the worst of them, a completely unethical and corrupt crook.
Now Mr Mphaka is the ag. Silungwe uyu ah. Kwali na munyinu.
Koma nalikukuti Chakwera ativuta eti!! Munthu oyipa mtima zedi galu ameneyu.
Malawi lero
Tonse government is raping the constitution. Let the individuals pay the costs. Precedent was set. A zangazanga mufera za eni
Gentlemen on this issue only lets look at the material facts of the issue then conclude, these money were meant for the pandemic and everybody was under panic such that people who could not mask up were arrested and charged if you can look into our constitution that is not there but because the president wanted his people to served and somebody somewhere was busy stealing the money nonono they should not get their salaries
These law society are the ones advising thieves in govt on how to get away with their thievery acts. Only few of these law firms are patriotic to the nation…..
Malawi is no longer a country but a Village. Chakwera is group Village head man while Chilima is a subgroup Village Head man
Malawi has gone to the dogs
This does not require someone to be taught on how to do it. In demcratic era if one is alleged to have committed a crime has the right to be heard so there is no way should be interdicted without pay as if he/she is already proven guilty. Bwana Chakwera should remember that one is innocent until proven guilty by the court of law. Even kumuchotsa Kandodo as a minister to me i feel not good at all becoz there was need to hear from him how that payment from covid funds was made and if anything he ordered the accounts office upon revelation by witnesses that he should use the covid funds only then he was to be charged of misusing his powers by diverting the funds.
Agree. When one is angry and emotional, one can easily break the law.
Every person or being has a follower or followers including a devil or a fool. When the devil rebelled against God two thirds of angels followed him. Likewise, a minister has stolen and decides to quickly pay back to cover up and you Hawell comes out to defend him. Shame on you Mr. Cadet
Mbava zambiri ku malawi ndi ma lawyer so hearing that from the society of thieves is disheartening
The guy is full of hate that he does not listen to voice of reason. To start with he rescinded the appointment of MEC commissioners saying that they adjudged as being incompetent yet I dont the matter of competence of the commissioners was never heard in any court in Malawi nor did I hear the commissioners being asked to go to court to defend themselves on allegations of competence or did I hear any petitioner bring before court a petition on competence of commissioners. We believe in rule of law where one is supposed to be heard before being adjudged.
Listening to Chakwera on sunday one would not fail to read the anger in him not because of the theft but he knows he has goofed and he wants to prove to the world that he is the president and can not take any advise from the attorney general.
Bwana Silungwe mudwala nazo mutu izi .Your profession will be ruined because of these agonda mkutu as your advise is not respected
Ithink chakwera needs me to advise him on laibar issues, you can’t suspend an employee without pay…those advisers of chakwera are misleading him
How can you advise the president yet you even fail how to spell or write LABOUR
Laibar n’chiyani, and you want to be Chakwera advisor?
KODI KWANTERE KUKHALA NGATI ALI NDI LEGAL ADVISOR WINA APART FROM THE DR…
Malawi law society is very pathetic and failed organisation.siinu mukupangitsa mchitidwe wakuba kuti ufike apa, mufuna kunena chani,Bungwe lanu 90%Okuba mufuna kunena chani? Anthu onse akusakadza chuma chaboma akupanga izi chifukwa chainu ndipo sikoyamba koma ngat dziko tisinthe machitidwe, anthu omwe anafa kusowa oxygen iwo mkumaba analibe ufulu, be quiet please ,mwaononga dzikolino inu .Bingu ananenapo izi.
Change the law thru parliament. Not dictatorship tendencies.
But the fear is if you change the law you will use it in bad faith to victimize people.
So let them get the pay, speed up the process/trial.
exactly speed up process basi…that is the solution
30 days maximum.
The problem is that cases take too long to be concluded. Why should suspected thieves of our taxes continue to enjoy the same taxes they abused. There must be another way of solving these issues. The culprits must face internal hearing and disciplined.
tisazolowere za make dzana. .police kha ACB musamagoneleze nkhani.
tangoganizani ose omwe anavumbulisidwa dzanawa mu boma la DPP. sipano akanalandilabe !! acina mathanga olo linda akanalandilabe . tyeni tisiye mucitidwe uwuwu. otherwise police olo .a khoti sakutithandiza
Kodi simukunva akunena amatetule apa?? Once proven guilty its when salary should be stopped
Simple and straightforward. Being mentioned in a report doesn’t imply one is indeed guilty. The Law give allowance for investigations and litigation to vindicate or exonerate the suspect. It recognizes that some people can be implicated maliciously therefore the need for thorough investigation and legal process. Until then we cannot treat the suspects as criminals. Simple and straightforward. Kaya zimavuta kumva pati?
After all, where money is involved the suspension without pay is applicable. Should the court acquit the accused, he or she gets paid in arrears
That’s not how it is stipulated in the labour law. People are suspended with pay for what ever reason. If you suspend without pay, you are breaking the law.