When Malawi’s President Lazarus Chakwera appointed a new director general to lead the country’s troubled immigration department, the decision sparked a dispute over the appointee’s suitability. The department deals with issuing passports as well as with immigration, and its poor reputation for the handling of citizens’ travel documents angers and frustrates many Malawians. Not to mention a major hacking operation that recently paralysed the whole passport process. Now, less than two years down the line, the high court has found the DG’s appointment illegal and unconstitutional, holding that long-retired soldier, Brigadier-General Charles Kalumo, must quit his position. It’s a controversial decision, and the government immediately tried to suspend its effect pending an appeal. But the high court refused to stay the order, and it seems that Kalumo will have to stand down at least until the appeal is heard and decided. Among some of Kalumo’s subordinates, however, the decision was immediately welcomed. In fact, it led to the cancellation of a strike demanding his removal and to jubilant dancing and singing in the street outside the department’s Blantyre offices.

Read judgment

The 2022 appointment of a long-retired senior military officer to one of the most sensitive posts in Malawi’s civil service – that of director general of the Department of Immigration and Citizenship Services – was always something of a puzzle.

The new DG, retired Brigadier-General Charles Kalumo, was brought back by Malawi’s President, Lazarus Chakwera, to head a department that clearly needed better leadership. The previous DG had been arrested in 2021, and there was public concern about allegations that some staff were on the take, providing passports and other documents for bribe money.

But it was a controversial appointment given the new DG’s background as a senior soldier rather than a civil servant. And then there was the question of his age – well past both the mandatory retirement age of 55 and the general extension to 60. It’s a touchy issue since a large number of younger people feel the government is not making good on its youth policy, and that they have some entitlement to promotion within the public service. They point, for example, to a 2013 government policy document  in which government stresses that it had placed youth development and empowerment among its key priority areas.

Hardly a surprise then, when Kalumo’s appointment was challenged in court by a far younger member of staff, Chikhulupiliro Zidana. He claimed he had standing to bring the application because he and other younger people were kept out of promotions when post-retirement-age people were brought in from outside the public service or were kept on beyond the date on which they should quit. On the merits, he said that Kalumo’s appointment was unlawful and the court should review and set it aside.

Corruption, plunder and inefficiency

On behalf of the President it was argued that Kalumo was needed because of institutionalised corruption, plunder and inefficiency in the department. Given his background and skills, Kalumo was an appropriate DG to deal with these problems, and the action brought for his removal was motivated by greed and corruption, to maintain the status quo in the department.

A successful challenge to re-engaging retirees with the right experience and skills to resolve ‘chronic governance challenges’ would work against the interests of ‘orderly and efficient government’. And if the court were to grant the application, it would ‘derail’ effective and efficient delivery of services by the department as well as hampering orderly public administration.

Further, the application was an abuse of court process because the proceedings were intended to ‘perpetuate corrupt and self-aggrandizement goals’ and to ‘derail orderly and efficient administration’.

No mere busy body, trying to harass government

The high court judge hearing the matter, Mike Tembo, had first to decide whether Zidana had legal standing to bring the case, before he could consider the main issue of Kalumo’s appointment.

Zidana claimed he was entitled to bring the application against Kalumo’s appointment even though he didn’t have the backing of seniors in the department. Tembo agreed, saying the law provided that, at least in theory, Zidana could be promoted to a more senior position in the department.

He wasn’t a ‘mere busy body’ from the general public, trying to harass the government. Rather, he was ‘a serious-minded officer’ who was aggrieved and genuinely concerned about the rule of law issues raised in the case. There was no evidence that he had brought the application for ‘political or other nefarious reasons’ as claimed by the government, and he thus held that Zidana had standing and that his application could be considered.

Army part of the public service? 

On the other key issues, Tembo said he agreed with Zidana that the power to appoint a chief immigration officer was given to the minister of homeland security, and not the country’s President. Since Chakwere had made the appointment himself, this alone would make the appointment unlawful.

Further, the Immigration Act provided that the appointment of the DG should be made ‘from the public service’ and that raised the question whether the army would count as part of the ‘public service’.

Tembo held the strong view that the appointment was not made from within the public service. Kalumo had left military service in the mid-1990s and had been out of service since then. For this reason, too, the court found that the appointment was not lawful.

What about age, and the correct court?

And what about the problem of age? The law originally stipulated a mandatory retirement age of 55 for members of the public service but allowed for changes to the age provision by order in the Government Gazette. In 2006, a revision was published allowing civil servants to work until 60. And, while a subsequent government circular purported to allow particular appointments beyond even that date, the court said no power had been given to the minister to grant extensions of office to specific individuals beyond the general mandatory retirement age. Even if it did allow the minister to extend the service period of some people, it wouldn’t apply to Kalumo, since he had already long retired by the time the circular was issued.

Thus, Zidana had been successful on all three grounds of his application.

Next, the court had to deal with the government’s claim that the case should have been dealt with in the industrial relations court, rather than via a judicial review application in the high court.

Again, Tembo wasn’t persuaded. Matters that relate to ‘the exercise of public power’ and that are regulated by statute, ‘fall within public law and are amenable to judicial review even if they implicate labour or employment issues,’ he said.

Not frivolous nor abuse of court process

He added that it was appropriate for the court to grant the relief sought by Zidana and that the matter was neither frivolous, vexatious nor an abuse of court process: ‘Good administration requires that personnel are appointed according to law and not otherwise, that that the expectations of officers like the claimant are not stifled as that is unlawful and harmful.’

In addition to his formal declaration that Kalumo’s appointment was ‘illegal and unconstitutional’, the judge awarded costs against the government. The AG immediately asked the court to grant a stay of the order pending an appeal, but Tembo refused.

‘Military style leadership’ criticised

The decision was delivered on the very day that staff of the Blantyre office of the department were due to launch a widely-publicised strike in protest at Kalumo’s continued appointment. Several media reports listed complaints made against him by staff, and these included a ‘military style’ of leadership that led to transfers and disciplinary steps without proper procedures being followed.

Some staffers complained that he shouted at them in front of members of the public and behaved as though they were ‘farm labourers’. When news of the decision reached the offices, however, the strike was called off.

While staffers reacted with glee when they heard that Kalumo was out, some commentators warned that Kalumo had been trying to cleanse the department of endemic corruption and that his departure would only serve the interests of those who wanted to see bribery continue.

Rule of law the victor

There is, however, another way of looking at the judgment. The real victor in the case has clearly been the rule of law. The court considered the legal facts very carefully and concluded that the appointment was not lawfully made. The court also made clear that it its decisions were based on provisions of the law, not on government’s claims to operate under a framework that was, essentially, beyond the law. And this in turn meant that, regardless of who might claim victory, the appointment had to be declared unlawful.