Open letter to Malawi Government on MBC/TVM merger
We are retrenched employees of the Malawi Broadcasting Corporation (MBC) and Malawi Television (TVM), who found ourselves in the situation in which we are due to the merger between the two public entities. We write this letter as a way of bidding farewell to MBC/TVM and highlighting our predicament due to government inconsistency in terms of instructions to MBC management concerning our welfare as retrenched members of staff during the entire period between the day we received our letters of retrenchment (end August 2011) and the day our pension funds were disbursed (24th October 2012).
The letter has been addressed to various stakeholders, including you Your Excellency, because we have reached a stage whereby we are no longer sure about who/what government is, as instructions concerning our fate kept on contradicting each other from one quarter of government to another, throughout the fourteen months period we had stayed on at MBC/TVM as retrenched members of staff, fighting for justice over procedures in which the merger was done.
As you might be aware, we were temporarily reinstated by the High Court following our application for an interlocutory injunction and leave for judicial review on the procedures in which the merger was executed. We challenged the procedures in which the merger was executed because we had identified a number of anomalies. First of all, contrary to what we were told before the merger, no liquidator was appointed to dissolve TVM and subsequently have its assets acquired by MBC.
In addition, the process was conducted by our own managers, who were bound to be biased, particularly considering the fact that just after the merger was announced, most MBC managers were sent on forced leave and eventually had their positions taken over by TVM managers. Neither a professional consultant nor officials from the OPC, as we were initially made to believe, was involved to ensure that the merger and MBC restructuring process was impartially and professionally conducted to the benefit of the new entity and, indeed, government. No wonder no pensions were disbursed upon retrenching us and those with loans with either the corporation or banks (with MBC/TVM as a guarantor) went home empty-handed, despite agreements that in the face of a situation like ours, such loans would be recovered from pension benefits not severance pay.
Furthermore, it is an open secret that qualifications, experience and performance did not matter when matched with one’s perceived political affiliation and personal relationships with the top managers involved in the process of merging the two entities and restructuring MBC. To cover up, the managers deliberately sent wrong information to the OPC, particularly in terms of qualifications of employees. For instance, a graduate could have MSCE or JCE indicated as the highest qualification that he/she holds. On the other hand, those earmarked to remain could be indicated as highly qualified, in some cases in reference to short-term courses that people usually attend as part of on-the-job training. In a nutshell, our managers lied under oath and gave wrong information to public servants, both of which are criminal offences.
Even among those who remained, a lot of inconsistencies were reported. Some were demoted by two or three steps and made subordinate to people who were less educated, less experienced and whose performance was far below their own. For example in the News and Current Affairs Department a senior editor with a Diploma in Journalism and some thirteen years experience was made subordinate (salary-wise) to a colleague who only had two years experience and whose highest qualification was MSCE, and was still studying towards getting a diploma in journalism. The two have a salary disparity of over K10,000, to the advantage of the less qualified and experienced, up to now. This too we identified as an anomaly and a de-motivating factor even for those who were retained.
Among the retrenched members of staff some were redeployed to various government ministries and departments. This again did not consider qualifications, experience and performance. The epitome of this is the redeployment of a member of staff with a Masters Degree as his highest qualification to Blantyre Rural District Education Manager’s office to serve as a clerical officer at salary Grade M, with a salary of around K15,000.00 a month. This we felt was an insult not only to the individuals concerned, but also to Malawi’s education system as well as the country’s conventions on fair labour practices. Our understanding is that one can only be redeployed to maintain his/her position as well as emoluments. But our redeployments were tantamount to demotions, which, coupled with the demotions that occurred even to those who were retained, is against fair labour practices and therefore subject to court redress for those who feel aggrieved, hence our suit against MBC/TVM.
As if this was not enough, the letters of redeployment were signed by Mr. Bright Malopa, the former MBC Director General, and supervisory officers at the various workplaces to which we were redeployed sent us back, saying they could not take instruction from MBC with regard to redeployment, allocation of positions and emoluments, thus in effect faulting the process as well as rendering us destitute. Surely, in face of all this confusion the best a rational thinker who knows and values his citizenship could do was to seek court redress, whether those not affected would understand or not.
However, MBC challenged our application for leave for judicial review, arguing that the matter was supposed to be taken to the Industrial Relations Court. But their application was thrown out a number of times, including after undergoing a full hearing by Justice Maclean Kamwambe, thus making it possible for the case to go before the High Court judicial review on 1st December 2011, which was heard before Justice Healey Potani. However, to our surprise, MBC defence counsel reopened the case that had been decided upon by Justice Kamwambe, calling upon the High Court not to allow the judicial review to take place. Justice Potani allowed the challenge to be part of the hearing and chose to combine this with the hearing of the substantial matters under judicial review, whose progress in terms of delivery of a ruling was now to be subject to the outcome of the first case challenging the leave for judicial review. So it happened and we came out of court waiting for two rulings, hoping that the court would certainly allow the judicial review to proceed and go on to deliver a ruling on the substantial matters under review.
By this time (December 2011) we had stayed for three months without pay, despite the injunction order that was there. The argument of MBC managers was that the court had ordered that we had to pay back severance pay (in reference of 23rd September order issued after MBC had sought for it), and that they would only pay us after giving them back the severance pay. This drastic measure they applied across the board in spite of the fact that some of our members did not receive any funds as severance pay due to loans they had with the corporation and/or commercial banks. Furthermore, the managers decided only to implement part of the court order, ignoring an order that they should not implement new salaries as indicated in the letters given to all retained members of staff.
We therefore decided to ask the Court for an order of variation and rectification, bearing in mind that it is against fair labour practices for an employer to pay their employee nothing simply because he/she owes them something. Our argument was that in line with the 23rd September court order, MBC had to be paying each one of us at least half of the individual gross pay, in line with fair labour practices. The High Court, through Justice Joseph Manyungwa, granted that order on 12th December 2011, thus effectively ordering MBC/TVM to be giving us salaries effective 1st September 2011, including the so called “salary advance” MBC was giving all retained members of staff as a way of disguising the implementation of new salaries, contrary to the 23rd September High Court order.
As generally expected, MBC chose to ignore the 12th December order, a development which forced us to file a lawsuit for contempt of court against the then MBC Chairperson of the Board of Governors Father Dr Alfred Nsope, the then Director General Mr. Bright Malopa, the then Chairperson of the Transitional Committee Mrs. Chimwemwe Banda and the Director of Finance Mrs. Felistus Chikusilo. However, proceedings were affected by the country-wide industrial action by Judiciary members of staff, which began on 9th January 2012 and went on until March 2012. This made MBC managers to take advantage of the situation and continue acting with impunity towards the court orders.
After the courts reopened, we tried to resume the proceedings but MBC defence counsel kept on blocking the proceedings until 3rd May when a ruling reiterating the need for MBC/TVM to continue paying us, as ordered on 12th December 2011, was made by the High Court’s Justice Manyungwa. By this time, the country’s political administration had just changed and when two days later, on 5th May 2012, the Minister of Information and Civic Education Honourable Moses Kunkuyu visited MBC Blantyre studios for a familiarization tour, we highlighted our plight as retrenched members of staff, who had by then stayed for nine months without pay and gave him a letter containing our grievances. Through his personal intervention as line minister, and indeed that of the new Director General Dr Benson Tembo and possibly that of the new Principal Secretary of Information and Civic Education Mr. Anthony Livuza, government disbursed funds for our ten months salaries, from 1st September 2011 to 30th June 2012. These funds were released on 31st May 2012, but for a period of almost two weeks, management kept on telling us that the Finance Department was doing calculations. This raised a lot of questions among us, since logically calculations would have to be done before making a request to the Treasury for provision of such funds as one way of justifying why the funds ought to be released anyway.
As you might be aware, on 12th June 2012 Justice Healey Potani made his ruling, upholding MBC’s argument that the matter that we took to the High Court concerning the procedures in which the merger between MBC and TVM was done did not qualify for judicial review but that the case should be taken to the Industrial Relations Court. The ruling also set aside all orders obtained on the basis of the court proceedings and it came while MBC was yet to comply with the orders concerning payment of our salaries. When MBC Management said they could not pay us the salaries since all relevant court orders had been set aside, we insisted that they had to, considering that these were arrears and if they had complied with the court orders, the 12th June ruling could not require us to pay back the salaries in question. We also insisted on getting paid because we had continued to render our services to MBC/TVM during this entire period, some on continuous basis, while others could be called to duty when need arose, including odd hours.
Our argument was also predicated on the fact that no law condones engaging any person in any form of work for which they would not get paid unless it is explicitly said that the work is on voluntary basis and the person/s concerned agrees to that contract, or it is punitive labour for a criminal offense that has resulted in custodial or non-custodial sentence. If none of these, we felt what MBC Management was suggesting was a new form of slavery imposed on us, who are equally bonafide citizens of Malawi, entitled to all forms of human rights as enshrined in the Constitution and other relevant legal documents such as the Labour Act and the United Nations’ Universal Declaration of Human Rights, which prohibit any form of slavery for any human being. Furthermore, we argued that if we were to go by the letter that the 12th June 2012 ruling meant that everything had returned to the situation as it were as of 1st September 2011, then equally disbursement of our pension benefits was long overdue, because we had been told that the benefits would be ready in three months time, which meant 1st December 2011.
Eventually, with the intervention of the Ministry of Information and Civic Education, we received our ten-months salary arrears. Come the eleventh month, thus July 2012, there were no salaries for all retrenched staff, who, despite being retrenched, had not yet gotten their pension benefits, and were still rendering services to the corporation. We then began to engage our management as to why this was the case. Management told us that they had no funds. They said that after they had submitted two distinct budgets to government, as instructed by Capitol Hill, one including all retrenched staff and another one excluding us, Government approved the one excluding all retrenched staff. To them this meant that if they had to be paying us, Government would have to give them extra funding.
Furthermore, they told us that our pension dues were being processed following the 12th June ruling, which resulted in a resolution by MBC Board of Governors on how MBC had to deal with all retrenched staff. Having come to this point, we said we would not go against the position taken by the corporation, but rather requested that MBC had to be paying us salaries until our pension benefits were ready.
We further supported our argument to this effect by highlighting the advice from Government concerning our salaries as contained in a letter from the Treasury, which among others stated that “salaries for the retrenched workers must be met from [the] 2012/13 Budget Provision until such a time when this [merger] issue will be conclusively resolved.” The letter’s reference number is OA/1/15/10/330 dated 16thJuly 2012 signed by Mr. Goodluck Chaphulika and addressed to the office of MBC’s Director General, to the attention of Mr. J. Chikagwa, the Director of Engineering, who had authored a letter asking for extra funding to meet our July salaries, in his capacity as Acting Director General.
When Management insisted that it still could not pay the salaries without clear direction from government, we began demonstrating peacefully at MBC Headquarters in Blantyre, so that Management and/or Government could heed our plea. The demonstrations lasted for five days and ended on 17th August after Management, led by the Director General Dr Benson Tembo, convened a meeting informing executive members of the Union that there was now a commitment letter from Government that it would provide funds so that MBC should meet our demands by paying us the July and August salaries and ensure that pension benefits are disbursed by 1st September, or at least within the first half of that month, failing which salaries for September and indeed every other subsequent month would be paid until the pension dues were ready. This communication came from the Principal Secretary for Information and Civic Education Mr. Anthony Livuza. We eventually got our July salaries, which we are told MBC Management processed from funds it borrowed (or diverted) from a project to purchase fly-away kit for outside broadcasting.
To our surprise, when the month-end of August came, only “retained” members of staff received their August pay, without any communication whatsoever with regard to all “retrenched” members of staff. This forced us into another round of meetings with Management to resolve the dispute. However, when we reached the 10th of September 2012, some 16 days after our official pay day of 25th, the general Union membership lost their cool and decided to begin peaceful demonstrations once again in protest of Management’s breach of the 17th August contract, thus effectively demanding their August salaries as well as pensions (or at least information with regard to the progress towards payment of the pension benefits).
While in the heat of this, we got information that government had released funds to cater for the period between 2004 and 2012, during which MBC (Radio) did not remit contributions to Old Mutual, despite continued deductions of the same from the affected employees’ salaries. As of TVM, the period of non-remittance was from 2010. As communicated to us by Mr. Perekeni of Ministry of Information and Civic Education, the cheque in question was worth K277.7 million, which was meant to cater for pension contribution arrears for the retrenched members of staff.
With regard to August salaries, we eventually became aware that government, through Principal Secretary in the Public Sector Reform and Management (Rationalisation) Unit Mr. Kandoje had written a letter containing instruction that we could no longer get paid due to the 12th June High Court ruling. However, when this instruction came management was reluctant to relay it, fearing that this could make worse an already tense situation in which MBC was. This prompted our Director General Dr Tembo to engage various stakeholders so that the dispute in question could be resolved in a fair and better manner. He later on communicated to us that a meeting aimed at resolving the dispute involving various stakeholders including Deputy Chief Secretary (Operations) Mr. Willie Samute had resolved in principle to consider his request in line with our demands to the effect that funds be provided for our salaries up to October 2012 as well as severance pay for the period from 1st September 2011.
He said another meeting was scheduled to be held as soon as possible, following which written instruction and the relevant funds would follow. We were puzzled, considering that government had more than once already issued instructions on the salary issue, but we heeded management’s request to suspend our demonstrations. While we waited for the funds, management through the Director General communicated to us latest instruction nullifying all previous instructions, which emanated from a decision taken during a stakeholders meeting held on 10th October 2012 to the effect that salaries could not be paid to retrenched members of staff and that the salary cut-off point was to be 31st July 2012. The letter, signed by Principal Secretary for Ministry of Information and Civic Education Mr. Livuza, further said that the stakeholders had based their decision on the High Court ruling of 12th July 2012.
However, we still feel that we have a legitimate claim over our salaries. The first reason is that our pension benefits were not yet ready by 31st July 2012 and the delay had been caused by MBC’s failure to remit pension contributions to Old Mutual since 2004 and TVM’s failure to do the same since 2010, forcing the corporation into a huge debt not only in terms of contribution arrears, but also in investment profits and accumulated interests for both Old Mutual and each one of us. Our expectation was that the contribution arrears would be paid prior to the moment MBC decided that we should go, either in August 2011 or indeed by 31st July 2012, failing which would imply that MBC is not yet done with us and therefore maintaining our status of being its employees until such time we are paid our pension benefits.
In addition to this, MBC kept on engaging us in various assignments beyond August 2011 and July 2012, with some rendering services just like any other retained member of staff, including working on shifts during odd hours, even up to this month, October 2012. Furthermore, the letter from the Treasury (which unfortunately has been rendered worthless) categorically stated that salaries should be paid until the issue is “conclusively resolved”, which to us would mean UNTIL the disbursement of the pension benefits.
It is a fact that the law does not apply retrogressively, and our expectation was that the instructions in question should also not have been applied retrogressively if indeed we would want to be so legalistic. The 10th of October being the day this decision was made, at least that should have been the salary cut-off point. Did you expect these over 300 souls to remain in the dark and without any income until such time? Where is your human face in this act?
It is oftentimes dangerous for authorities to be too legalistic in that some may end up coming up with laws or decisions that are simply aimed at suppressing justice, the very foundation of the law. One thing we should always remember is that certain laws, court rulings and indeed government decisions or instructions can be unjust at times. We would be too naïve to forget this as Malawians when just a couple of months ago we were all agitating for repelling of some “unjust laws” and directives that we felt impinged on Malawians, including the infamous Injunctions Law. A mind too legalistic would not find it useful to repel such a law, bearing in mind that it went through all the required legal processes (including being passed into law by the Legislature which is assumed to be the citizenry’s representative body), before the President assented to it. This is why the departed President (may his soul rest in peace) at one point said he was not the one responsible for making laws and that if people had problems with the so called unjust laws they had to fault the Legislature not him.
Challenges associated to being too legalistic are many, even in religious circles. For example, in the Bible Jesus Christ warned against being too legalistic as this may lead to suppressing the very essence of life itself, thereby rendering the law as a system without substance. In one such case we see the insistence of the Pharisees and Sadducees (custodians of the Jewish law in Jesus’ time) that people had to come to Jesus for healing on other weekdays other than the Sabbath, which in their legalistic thinking was not even suitable for one to get his or her recovery (John 5:1-17; Luke 5:17-25). To them it mattered most to keep the law to the letter, even if it meant making certain souls to suffer or indeed to be lost.
Such is the situation we find ourselves in. Apparently, for our legalistic technocrats running the affairs of government, the law of 12 June 2012 should take its course regardless of the suffering of the retrenched MBC/TVM employees, who, after that ruling, had to wait for a period of over four months to get their pension benefits, all because despite deducting them from their pay, their respective corporate managers were not remitting the pension contributions to Old Mutual.
All along we thought the law is there to edify a nation, rather than bruise it in its endeavour to guide relations among individual citizens or groups as well as relations between an individual and the State. To state the obvious, this act of being too legalistic has had a negative impact on our families: we were evicted (or threatened to be evicted) from our rented houses or had our valued property grabbed due to accumulated rental arrears; the education of our children and other dependants had been affected due to lack of school fees, forcing some to stay at home for a good two months after the opening of schools on 3rd September; we also lacked basic household necessities, including food, funds for water and electricity bills, as well as medical care, just to mention but a few, a situation which forced some to seek debts even from sharks with hope that once the three months salaries come, they would settle those debts.
When you consider all these in the face of the escalating cost of living due to the economic hardships the country is going through, surely a human-face approach could have helped us a lot. We strongly believe that those who have become mentally retarded and those who have passed on from amongst our group during this period (may their souls rest in peace) could not be wrong to blame their respective situations (or have their relatives do this) on the injustice they were subjected to.
For your information, the salaries we are wailing for are way below what the “retained” members of staff are getting since 1st September 2011. For example, in the News and Current Affairs Department a “retained” member of staff with two/three years experience and a diploma in journalism (or studying towards one) is getting over K100,000.00 while a Journalism graduate from the “retrenched” group with a Masters degree and over six years experience in the same department was getting less than K75,000.00 after being temporarily reinstated by the Court.
The democratic tradition of running government as guided by the Social Contract theory makes us to believe that government is a trust in which those in authority (politicians and technocrats) are trustees and the citizenry are beneficiaries, in whom the ultimate power in terms of sustaining the trust or indeed the mandate of the trustees rests. This means that those in authority should always act in the interest of the beneficiaries, in this case the citizenry. We hardly find your action as government as having been done in the interest of Malawians.
Another question is on Parliament’s approval to dissolve TVM and restructure MBC way after we had been retrenched. What is the meaning of the law passed by Parliament to dissolve TVM and subsequently restructure MBC if we insist on treating (or ill-treating) the retrenched employees on the basis of a ruling upholding a decision the law-making arm of government condemned as being illegal and not procedural? Much as we are not asking to go back to MBC and TVM on the basis of the irregularities associated with the process of merging the two public broadcasters, we expect fair treatment in disposing us off, given the apparent unjustness of the process, as observed by our honourable legislators in their deliberations on the bill to dissolve TVM and restructure MBC.
The need for government to put on a humanitarian face into this becomes even more important when we consider what Old Mutual has done to our pension funds. The benefits we have received have greatly been affected because according to statements issued by Old Mutual, since January 2009 Old Mutual’s bonus rates have been below 14 percent, reaching all time low in 2011 at 7.5 percent. This means that those who had joined MBC/TVM from 2009 are as good as going home with the accumulated individual and corporate contributions only, without the much needed bonuses. This implies that quite a good number of us are going home with funds below a hundred thousand Kwacha, particularly when we consider that MBC (Radio side) salaries were so pathetic prior to the merger and are the ones on which the pension contributions and calculations were based.
Now given the position taken by government with regard to salaries for August to October 2012, namely that these salaries cannot be paid despite earlier assurances that they would be paid, it means that the concerned retrenched members of staff would have to settle their debts, accumulated over a period of three months, from the little they have received. The most ironic and pathetic thing is that these people had confidence and sought debts to cater for their general livelihoods due to the assurances that came from MBC Management, particularly the Director General, that government has committed itself towards paying the retrenched staff up to October 2012. As is the order of the day in desperate situations, some of these people even had to find financial credit from sharks, and you know how merciless such people may be when it comes to recovering debts. To us, government has acted unjustly (though legally rightly in their thinking). If we were told on 31st July that we would no longer get any pay until we got our pension benefits regardless of how long it would take for those benefits to be ready, we would have equally planned, budgeted and acted accordingly. But government, through its written instructions and oral communication by the Director General, lied to us, duping us into a false sense of consciousness, rendering us destitute at the eleventh hour. This is typical of legalistic governments that do not care about the legitimacy and the justness of their laws or decisions, which we strongly believe is far from being the nature of our government.
Our plea, therefore, is that Government authorities should revisit their decision and issue another instruction to the contrary. If something similar has already happened with earlier instructions, it is our hope that our request too can be granted. It is further our prayer that our government should stop giving contradictory instructions to avoid the unnecessary tension that engulfed the state broadcaster during the period in question. We therefore hope that we would get our salaries, from August to October, the month during which we got our pension benefits and during which the last person from our group stopped rendering services to MBC/TVM.
Coming to the pension benefits as computed by Old Mutual, our question is: “Is it fair to punish beneficiaries of the pension funds for wrongs of their corporate masters, who despite the law being clear on this, choose not to remit the funds or indeed settle their contribution arrears?” Our expectation was that Old Mutual would calculate our pension bonuses to the tune of investment interests they could have generated if remitted on time so that the whole sum is shouldered by MBC, which was responsible for this mess. Why should you punish the poor employee, whose salary was deducted in time for the contributions’ remittance to the pension fund administrator? Where is equality before the law as stipulated by our Constitution if we punish a poor worker for wrongs of his/her employer? If you claim the 7.5 percent bonus rates are universal for all workers on Old Mutual pension fund (as we are told by MBC’s administration department officers), where is there justice in keeping this information a secret instead of informing the concerned individuals and indeed the Malawi nation in advance so that they should get psychologically prepared, bearing in mind that some of them would be reaching their respective retirement ages soon?
Our plea to you government authorities, particularly you Your Excellency, is that you should intervene and ensure that justice takes its course on this and similar phenomena in future. It is high time our corporate managers began operating to the dictates of the law as contained in Section 89 of the new Pensions Act:
“Any employer operating a pension scheme prior to the date of commencement of this Act shall remit all contribution arrears, if any, to the trustees of the fund within six months from that date”.
In our understanding, this would imply that all pension contribution arrears should have been remitted to pension fund administrators by 1st November 2011, bearing in mind that the new law came into effect on 1st June 2011. This MBC has not yet done to date, particularly for members of staff retained after merging with TVM. We therefore implore government to ensure justice to the poor worker by making sure that this is headed to by MBC and indeed any other organisation in breach of this legal requirement.
Furthermore, the Old Mutual statements received by TVM retrenched staff show basic salaries and contributions that were never received by the concerned members of staff from September 2011, raising a lot of questions as to what salaries were we entitled to from September 2011. One wonders if such information was going to Old Mutual but the employee was not getting the indicated basic salary (which is approximately four times higher than what they were getting), where was the balance going? A close look at the figures indicated on the Old Mutual statements for TVM members of staff show that these are probably the salaries approved by government as part of MBC’s new salary structure effective 1st February 2011, a couple of months after the merger between the two public broadcasters had been announced with the appointment of one Director General to head the two. According to a letter reference number C1/06/02/VIII dated 24th January 2011 and signed by D.M. Banda for Comptroller of Statutory Corporations, the new salary structure was to be for both radio and television personnel as indicated in paragraph two, second sentence, which reads:
“This new salary structure follows the dissolution and adsorption of Television Malawi into Malawi Broadcasting Corporation and the subsequent restructuring of Malawi Broadcasting Corporation.”
We therefore suspect foul play in the implementation of this new salary structure and the administration of the pension funds for employees of both TVM and MBC and are demanding an explanation on this, salary arrears from February 2011 and subsequent recalculation of our pension benefits. We demand this bearing in mind that all managers of MBC from salary grade MBC 1 to MBC 4 in April 2011 began receiving the approved new salaries with arrears backdated to 1st February 2011, the date indicated in the said letter.
We hope that you will heed our plea, so that our physical and psychological torture comes to an end as soon as possible. We will therefore be patiently waiting for your intervention, which we hope will be expedient and timely, considering the level of our plight. Our trust remains in the Lord our God, the Ancient of Days, in whose words we take solace and believe that he will surely take up our case (Proverbs 22:22-23)
“Do not exploit the poor because they are poor and do not crush the needy in court, for the LORD will take up their case and will plunder those who plunder them.”
Augustine Lubani (President)
Retrenched Executive Members (elected and co-opted):
Godfrey Mhango Richard Bande Chimwemwe Tsitsi
Nelson Chataika Morton Kalefya Elisha Gazamiyala
Blessings Mapinda Sellina Khonje Chifundo Vareta
Edith Kaliati Chawera Nyirenda Stanford Salamba
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