…Attorney General applies for a stay
…Kalumo saga continues to haunt the President
President Lazarus Chakwera made an illegal appointment of controversial Immigration Department Director General Brigadier General Charles Kalumo (Rtd). This decision was illegal and unconstitutional as he could not appoint anyone to that office.
Contravening the constitution by the President is an impeachable matter.
The President, who has spent the last month seeking to keep his appointee, is greatly embarrassed after the High Court of Malawi agreed with an Immigration Officer, Chikhulupiliro Zidana, who dragged the President to court and applied for a judicial review.
Hours after the landmark ruling by Justice Mike Tembo, the president’s Chief Legal Advisor, Thabo Chakaka Nyirenda, was scrambling in courts trying to apply for a stay of the court ruling so that Kalumo could continue in the post pending an appeal at the Supreme Court of Appeal.
Malawians were shocked at President Chakweras’s decision to appeal and his tendency to disregard the courts’ rulings. The same platforms enabled him to win a presidential election sanctioned by the courts.
The President will appeal that he has the power to appoint anyone above the grade of undersecretary in public service, as the High Court ruled that he had illegally appointed Kalumo outside the public service and did not have the power to do so.
The Attorney General Defending had told the court that section 6 of the Public Service Act gives power to the President to make the appointment. However, Judge Tembo ruled that the Immigration Act (Section 3) was clear and that the powers lay with the Homeland Security Minister and not the President.
“The maxim generalia specialibus non-derogant means that, for the purposes of interpretation of two statutes in apparent conflict, the provisions of the general statute must yield to those of the special one,” The Judge quoted a Canadian case, saying the Attorney General had correctly presented to the court that Section 89 (d) of the constitution as granting powers to make appointments subject to the Constitution or an act of parliament.
This means that the provision of the Immigration Act, in which President Chakwera has no power to appoint the Director General of Immigration, would stand.
The President had also tried to defend Kalumo’s appointment, that he was a retired military official who could still be recalled in case of any need. As such, he was within section 3 of the Immigration Act, which required that the Director General come from public service.
“The court is unable to agree with the position taken by the defendant on the issue that the Retired Brigadier General herein was appointed from within public service on account of the Brigadier General being amenable to recall to military service. The fact of the matter is the Brigadier General left military service in the mid-90s,” noted the court, adding that the President failed to submit any law or evidence to the claim he was making.
And on Zidana’s application that Kalumo, who is 70 years old, was appointed way beyond the 60 years mandatory retirement age in public service, Judge Tembo agreed with his claim, citing a ruling in which Kalumo had challenged his forced retirement in 1995 when he was 42 years. He would have still retired 16 years ago in 2008, the court noted.
The appointment contravenes section 29 of the Public Service Act, which ruled Tembo.
The ruling would add woes to the now officially certified chaotic and clueless regime of President Chakwera, who has left fate to run the affairs of the country and appointed equally clueless persons into public services.
