The High Court in Blantyre is today expected to deliver a ruling in a case involving former Electricity Supply Corporation of Malawi (Escom) chief executive officer Kamkwamba Kumwenda and former human resources director Chrispin Banda, who are challenging their removal from office by the Secretary to the Government.
The two were in November last year seconded by Chief Secretary Justin Saidi to Malawi University of Business and Applied Sciences (MUBAS) and the Malawi School of Government respectively, a move they argue was unlawful and outside Saidi's authority.
Through their lawyer Bentry Nyondo of Ritz Attorneys at Law, Kumwenda and Banda told the High Court that the Chief Secretary had no legal mandate to remove or redeploy them because Escom is a parastatal governed by its own board and contracts, not the civil service.
Nyondo argued that his clients are corporate executives, not civil servants, and therefore fall outside the administrative control of the Office of the President and Cabinet.
Follow us on WhatsApp | LinkedIn for the latest headlines
"The court must determine whether the Secretary to the Cabinet can lawfully issue a letter redeploying executives of a parastatal corporation to institutions which are not part of the civil service," said Nyondo.
He further argued that even the institutions where the two were sent -- MUBAS and the Malawi School of Government -- are not part of the civil service, making the redeployment even more legally questionable.
According to Nyondo, only the Escom Board has the authority to discipline, transfer or remove the corporation's senior executives.
The Attorney General, Frank Mbeta, opposed the application, arguing that the Chief Secretary had powers to act because Escom is a public institution owned by government. He also told the court that at the time the decision was made, parastatal boards had been dissolved, giving the Chief Secretary legal authority to act.
Mbeta further asked the court to dismiss the case, saying Kumwenda had demanded K1.1 billion from government for the remainder of his contract, which he said showed that an alternative remedy was available. He also argued that since the matter involved contracts of employment, it should be handled by the Industrial Relations Court.
However, Nyondo dismissed the Attorney General's argument, insisting that the central issue before the court is not compensation, but the legality of the Chief Secretary's action.
"The court is being asked to interpret the law and determine whether the executive arm of government overstepped its authority," he said.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
High Court Judge Allan Hans Muhome reserved his ruling after hearing arguments from both sides, and is expected to deliver his decision today, a judgment that could have far-reaching implications for the governance of parastatal institutions and the limits of executive power in Malawi.
