Ombudsman determines Magalasi was ‘illegal’ Mera CEO, orders no benefits pay: Chizuma fixing Malawi on ‘rule of law’

Ombudsman Martha Chizuma has made a determination on the  recruitment of former Malawi Energy Regulatory Authority (Mera) chief executive officer Collins Magalasi, saying it was “illegal, unprocedural” and  “maladministration.” and therefore ordered the Mera board not to pay him any end of term benefits and if the same have already been paid they should be  reclaimed.

Chizuma made this determination on Friday in Lilongwe  when he released the report  on unprocedural recruitments of executives of  Mera

She says that her office investigated a host of recruitments amid allegations that some of the officials did not have the right qualifications and that normal recruitment procedures were bypassed.

Chizuma said that the appointment of the CEO was supposed to be done by the Mera board, according to laws, but she noted that the process was hijacked by the State House in 2017 soon after the expiry of his contract as former President Peter Mutharika’s chief economic advisor.

The Ombudsman – the public protector –  highlighted that the Constitution under section 89(1) (d) does not give overriding powers to the  President to appoint the CEO under the Public Service Act as he chooses.

“This  provision clearly stated that the appointment by the President is subject to the  Constitution and Act of Parliament. This means that the powers to appoint to a  specific position have to be stated in the Constitution itself or indeed the Act of  Parliament that is relevant to that appointment must mention that the President  is the appointing authority.

“For instance, the Constitution clearly gives the power  to the President to appoint persons to positions of Attorney General, Inspector  General and others. In as far as the Acts of Parliament the Corrupt Practices Act  provides for the appointment of the Director General of the Anti-Corruption  Bureau. This is what s89(1) (d) is all about. Any understanding short of this is  contrary to the law, therefore illegal,” said Chizuma.

She says Magalasi’s employment was “illegal” and the fact that his appointment  surpassed the Mera Board, which is the legally mandated authority, was effected by the  President and did not follow the process for open and fair competition is  contrary to the existing laws “thus maladministration.”

Magalasi was sent on forced leave last year and his contract has since expired.

Ombudsman Chizuma said is Magalasi was still in employment, she would have immediately nullified his  appointment for reason that it was illegal.

“This is how as a country we walk the  talk on rule of law and ensure that public confidence in government  administration does not get shattered and arbitrary actions do not get sanctified,” she said.

Chizuma said whilst am aware that Magalasi did provide a service for which he was paid  during the time of “illegal employment” this does not in any way regularise his  employment.

“His appointment or initial entry was illegal and therefore  unenforceable both at law and public policy. As CEO of a parastatal like MERA  he knew or if he did not, he ought to have known that his employment was  illegal,” she said.

Accordingly,  Chizuma says, whilst Magalasi provided a service for the period of his  contract  “the whole exercise remained in the realm of an unauthorised adventure. “

She said: “ Nothing comes out of nothing and no claim can arise out of this because any  right to such claim is consequential to a valid appointment which was non-existent  in this case.”

Chizuma said the Office of the President and Cabinet  (OPC) to refrain from appointing the Chief  Executive Officer of MERA and instead follow the law to the letter and allow  the Board to make the appointment.

“The OPC should ensure that it strictly adheres to the law when it comes to the  removal of Board members for MERA,” she also recommended.

The report also discloses that the other recruitment under review was that of planning, monitoring and evaluation manager currently occupied by Geoffrey Chilenga.

The Ombudsman said she discovered that Chilenga came second during the interviews while Pacharo Mwanza was first.

However, Magalasi told the Ombudsman during the investigation that Mwanza was overlooked after he was tipped off that the successful candidate has fake social media accounts which he uses to leak information.

Chizuma suspected that this was just meant to discredit Mwanza to the benefit of Chilenga.

She has since asked Mera to seek references for Mwanza and offer him the job if they are pleasant.

The Ombudsman has also ruled that Mera information communication and technology manager Billy Kayira be replaced as he does not have the required qualifications.

In another verdict, the Ombudsman has ruled that Mera internal audit manager Alex Ganiza be demoted because he did not have the qualifications to rise to the position.

Ombudsman said her office  also investigated the complaint of irregular recruitment of Mera director of economic regulation (DER) Chimwemwe Dunkalo on allegations that

the post had specific prerequisite education qualification  requirements, namely, a Master’s Degree in Economics. However, the CEO of  MERA modified these prerequisites to suit Dunkalo who does not  have this qualification.

“There is nothing wrong with the qualifications of Mr. Dunkalo as DER. The  allegation that was levelled against him therefore lacks merit and is dismissed in  its entirety,” SHE SAID.

On the position of the Director for Liquid, Fuel and Gas (DLFG) Mrs. Alinafe  Mkavea, it was alleged that she does not have the prerequisite  qualifications for the position which, according to the job description and the  advert that was released during recruitment, is a Master’s Degree in Chemical  Engineering, Chemistry or Engineering.

“Mkavea was the best candidate out of all the  people that applied for the post all of whom were missing some of the  stipulated requirements. She possessed relevant Bachelor’s Degree in the  relevant technical field plus the relevant expertise in Fuels and Gas.

“The  failure by the Board to formulate alternative requirements for the position or  re advertising when one considers the particular facts of this recruitment  would not have changed the outcome of the interviews.  There were no issues of favouritism, nepotism or bias in the recruitment  process,” Ombudsman says in her determination.

She says any party dissatisfied with the Ombudsman report is entitled to apply for review at   the High Court pursuant to section 123 (2) of the Constitution within  three months.

The report has been titled ‘Institutional Anarchy.’

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