Ombudsman nullifies Kachaje’s appointment as MERA CEO, court injunction stops report publication

The Office of Ombudsman (OoO) has established that Henry Kachaje’s appointment as Chief Executive Officer (CEO) of the Malawi Energy Regulatory Authority (MERA) was irregular and has ordered the MERA Board to cancel that appointment.

Section 126 of the Constitution provides that “where the investigations of the Ombudsman reveal sufficient evidence to satisfy him or her that an injustice has been done, the Ombudsman shall direct that appropriate administrative action be taken to redress the grievance; cause the appropriate authority to ensure that there are, in future, reasonably practicable remedies to redress a grievance; and refer a case to the Director of Public Prosecutions with a recommendation for prosecution.

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Henry Kachaje – his CEO role appointment been nullified

In the report “IN THE MATTER OF THE ALLEGED UNPROCEDURAL AND IRREGULAR RECRUITMENT” of Kachaje, which the Ombudsman, Grace Tikambenji Malera, was expected to officially present in Lilongwe on Wednesday, 10 November, 2021, Kachaje’s employment cancellation is based on his under-qualification as he does not hold a Master’s Degree, the minimum requirement for that position.

Court injunction

However, she could not do it due to a court injunction stopping the publication of the same.

10 minutes into her presentation, the injunction was served on her whereupon Malera obliged and immediately stopped the proceedings. However, she indicated that she had served all relevant quarters with a copy of the report, including the MERA board, which recruited Kachaje, a known governing Malawi Congress Party (M

Ombudsman Grace Malera

CP) operative.

The report

But according to the 73-page report, which Nyasa Times has seen, there were two complaints that necessitated the probe into the appointment of Kachaje.

It says the Office of the Ombudsman received a written complaint on 28 June, 2021, from Richard Chapweteka (Electoral Commissioner), alleging that he had suffered injustice in the manner in which MERA conducted the recruitment process for the position of the CEO, which he had applied for.

There were eight (8) candidates who were invited for the interviews for the position of CEO carried out on 29 April, 2021.

“The first complainant stated that on 1 May, 2021 one of the Directors/Board Members of MERA informed him through a WhatsApp message that he performed well during the interviews. On 9 June, 2021 he was appointed as Commissioner for Malawi Electoral Commission (MEC).

“However, he was still hopeful for the MERA position, as such, he intended to decline the MEC Commissioner appointment and he expressed this position to a few of his trusted friends.

“It is the first complainant’s assertion that the same Director/Board Member of MERA who called him on 1 May, 2021, called him again on 10 June, 2021, through a WhatsApp call. The MERA Board Member advised him that if he were to decline the MEC appointment he would embarrass the President and secondly, that if he were to decline the appointment at MEC he would be left without a job as he was not going to get the MERA job either,” reads the report.

Chapweteka claimed that he was deliberately given low marks despite performing well during the interviews. He further stated that he tried to have the issue resolved by speaking to the MERA Board Chairperson about what he had been informed and that the Chairperson stated that there was not much he could do rather than to fire from the MERA Board the member who divulged the confidential proceedings of the Board.

Supplementary complaint

Chapweteka submitted a supplementary complaint against MERA, stating that he was reliably informed that the person the MERA Board had hired, Kachaje, did not have a Master’s Degree, which was a minimum requirement for the CEO position.

“As an interested party and someone who attended the interviews for the position he felt aggrieved because he had the necessary qualifications,” it says.

The Ombudsman advised him to put this second complaint in writing, which he did through email communication on the same day.

“Further, on the same date 7 September, 2021, I received a referral letter from the Anti-Corruption Bureau (ACB), of a complaint they received from the Forum of National Development (FND), alleging that Kachaje did not have the minimum requisite qualifications, a Master’s Degree.

“FND therefore requested the ACB to investigate the alleged irregular recruitment of Mr. Henry Kachaje as CEO of MERA. The ACB opined that the issues raised in the complaint of FND fell within the jurisdiction of the OoO and not the ACB and could thus, be best handled by the OoO, hence making the referral to OoO. It must be pointed out that the initial complaint that the ACB received from FND dated 25 August, 2021, which was the subject of the referral to the OoO was also copied to the OoO.

“The OoO merged the two complaints for purposes of processing of the complaints and the further handling thereof, as they emanated from one subject matter, the recruitment of the MERA CEO.

“Further, the complaints had a common allegation, that the CEO of MERA was recruited in spite of not possessing the required minimum qualifications for the job, a Master’s Degree. It was therefore more effective in terms of cost and time to merge the complaints,” it says.

The Ombudsman says she received a referral letter dated 28 October 2021 from the Public Appointments Committee of Parliament on the same matter in line with the Committee’s resolution of their meeting held on 25 October 2021.

“On 10 September, 2021, I wrote (to) MERA through the Chairperson, Mr. Leonard Chikadya asking MERA to comment on the allegations that the Board recruited a candidate who at the time of the interviews did not have the minimum qualifications. On 30 September, 2021 the OoO received a written submission from the Chairperson of MERA responding to the allegations made.

“Noting that there were still some questions on the submission provided to the OoO by MERA, a decision was arrived at to hold a series of public inquiries with MERA and other individuals who were connected with the matter. This was pursuant to the powers vested on the OoO under the Constitution and under the Ombudsman Act.

“Accordingly, the series of the sessions of the Public Inquiry, the findings of which have led to this Determination, were held in the period from 21 October 2021 to 8 November, 2021,” says the Ombudsman.

Under Section 5 of the Ombudsman Act, the Ombudsman has the mandate to inquire into and investigate any complaint laid before him or her concerning “any alleged instance or matter of abuse of power or unfair treatment of any person by an official in the employ of an organ of Government; or manifest injustice, or instances where any decision or recommendation taken by or made by or under the authority of any organ of Government or any act or omission of such organ is unreasonable, unjust or unfair or is biased; or any practice which may be deemed as such. Further to inquire into or investigate allegations that the powers, duties and functions which vest in any organ of Government are exercised or performed in a manner which is unreasonable, unjust or unfair”.

In view of the findings, the Ombudsman has directed that the Board of MERA should proceed to effect the attendant administrative action “as if the recruitment of Mr Kachaje in fact never happened and did not take place, including formally withdrawing the purported employment contract from him, including associated emoluments and attendant benefits forthwith”.

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