Malawi Law Society Faults Chakwera Order On Public Officers Interdiction Without Pay - 'Illegal'

20 April 2021

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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