S (On The Application of Mr. Godfrey Itaye & 15 Others) v Office of Ombudsman & MACRA (Judicial Review Cause 23 of 2021) [2025] MWHCCiv 1 (31 January 2025)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION JUDICIAL REVIEW CAUSE NO. 23 OF 2021 (Before Honorable Justice Mambulasa) BETWEEN: THE STATE (ON THE APPLICATION OF MR. GODFREY ITAYE & 15 OTHERS .).............cc ccc csccec csc cescescenenceeseeseeee sees ee sssssssesees CLAIMANTS -AND- OFFICE OF THE OMBUDSMAN ................cceeeeeeeeees 18? DEFENDANT -AND- MALAWI COMMUNICATIONS REGULATORY AUTHORITY (MACRA))....ccccccsssccccsssscessessssessssssssccsssnesessasssssssess 28D DEFENDANT CORAM: HON. JUSTICE MR. MANDALA D. MAMBULASA Mr. Chancy Thomu Gondwe, Advocate for the 1‘! Claimant Mr. Wanangwa Hara, Advocate for the 2" Claimant Mr. Fred Chipembere, Advocate for the 3 Claimant Ms Pilirani Chuma, Advocate for the 4" and 5 Claimants . Patrick Dzilimbire Kalanda, Advocate for the 6" Claimant . Bright Theu, Advocate for the 7" Claimant . Patrick Gray Mpaka, Advocate for the 8 & 9" Claimants . Shepher Chihana Mumba, Advocate for the 10 Claimant _ Ackim Ndhlovu, Advocate for the 10" Claimant . Clement Mwala, Advocate for the 11" & 12" Claimants . Luciano Mickeus, Advocate for the 13" & 14 Claimants . Robert Kadzakumanja, Advocate for the 15" Claimant . Christopher Masanje, Advocate for the 16" Claimant Ss SS SS S&S S&S . Wesley Mwafulirwa, Advocate for the 1*t Defendant Ms. Ellen Chandilanga, Advocate for the 1*' Defendant Ms. Lomagazi Jere, Advocate for the 1*' Defendant Ms. Chipiliro Mangulama, Advocate for the 1*' Defendant Ms. Hawa Chatepa, Advocate for the 1“! Defendant Mr. Benard Ndau, Advocate for the 2°? Defendant Mr. Edward Ndayera Dzimphonje, Advocate for the 2"! Defendant Mr. Obet Chitatu, Official Court Interpreter/Court Clerk JUDGMENT MAMBULASA, J Introduction [1] On or about 18" August, 2020, the 1%‘ Defendant allegedly received a complaint from an anonymous person alleging that there was nepotism, cronyism, tribalism and abuse of office in the recruitment of the Director General (DG), Mr. Godfrey Itaye, the 1“ Claimant herein as well as some members of staff by the 2"! Defendant. [2] The complaint further alleged other acts of maladministration by the said DG, Mr. Godfrey Itaye in the recruitment of some members of staff and also abuse of motor vehicles and fuel of the 2" Defendant. [3] The 1* Defendant took a decision to carry out an investigation into the complaint in exercise of the powers given to it both under the Constitution! and the Ombudsman Act.” ' The Republic of Malawi (Constitution) Act. Cap. 3:07 of the Laws of Malawi. [4] [5] [6] [7] [8] On or about 10 May, 2021 the 1 Defendant released its 121-paged report entitled, “Secure in Deception - Malawi Communications Regulatory Authority” elaborating its findings which concluded that the recruitments of the Claimants by the 2"! Defendant were unlawful and irregular. The 1* Defendant found among other things that the DG, Mr. Godfrey Itaye’s employment as Post Master General (PMG) in the year 2014 was illegal. It further found that he was illegally appointed by the 2"4 Defendant as its DG without being subjected to an open and transparent interview process as is required by law. The 1*t Defendant made various directives including nullifying contracts of all the Claimants herein. It also directed that the Claimants should not be paid any terminal benefits for the nullification/termination of their employment contracts with the 2"! Defendant. In the case of the 1° Claimant herein, the 1°‘ Defendant directed that if he was already paid his terminal benefits, the 2’ Defendant should claim them back from him. The 1* Defendant also directed that if any of the Claimants had any claims, they should be made or brought against persons who illegally employed them and that they should not be paid from the public fiscus. [9] [10] [11] [12] The Board of Directors of the 2™ Defendant duly implemented the directives made by the 1*' Defendant by discharging all the Claimants from their employment. It is for that reason that the Claimants herein are seeking review of the decisions of the Defendants in this matter. The Claimants are sixteen in total. The first eight are: Mr. Godfrey Itaye, the 1‘ Claimant; Dr. Benson Matengambiri Tembo, the 2"! Claimant; Ms Vilant Tambulasi, the 3 Claimant; Mr. Henry Macheso, the 4” Claimant; Mr. Stanford Njolomole, the 5" Claimant; Mr. Henry Shamu, the 6 Claimant; Dr. Charles Fodya, the 7 Claimant and Mr. Frank Mndala, the 8 Claimant. The second group of eight other Claimants are: Ms. Ruth Mgwede- Mdala, the 9 Claimant; Mr. Emmanuel Cornelius Banda, the 10” Claimant; Mr. Timothy Sukali, the 11" Claimant; Mr. Fearless Malulu, the 12 Claimant; Mr. Daniel Datchi, the 13" Claimant; Mr. Kumbukani Lisilira, the 14 Claimant; Mr. Tiyamike Zawanda, the 15" Claimant and Mr. McDonald Pato Phoya, the 16" Claimant. The 1** Defendant nullified the employment contract of the 2™ Claimant as a Technical Advisor on Digital Migration of the 2"! Defendant as the contract was found to be illegal. The 2"¢ Claimant had been seconded to the 2™ Defendant from Malawi Broadcasting Corporation (MBC) by the Government. [13] [14] [15] [16] [17] Similarly, the 1*' Defendant nullified the recruitment and appointment of the 3 Claimant as a Project Monitoring Officer of the 2" Defendant. On 20" December, 2018 she successfully underwent interviews after the 2"4 Defendant had caused an advertisement for the vacancy of the position to be published in national newspapers. The 1*t Defendant found that the advertisement inviting applications for the post of Project Monitoring Officer was made by way of a voucher and that this breached the Constitution, the Communications Act? and the Public Service Act.* The 1“ Defendant further found that despite scoring the highest during the interviews, the 3 Claimant did not have the required qualification for the post of the Projects Monitoring Officer. It was also the finding of the 1“ Defendant that by relying on her experience in project management as indicated on her curriculum vitae (CV) without conducting reference check, the 2"! Defendant omitted its duty to do due diligence. The 1** Defendant nullified the employment contract of the 4 Claimant as a Deputy Director of Human Resource and Administration of the 2"4 3 Act No. 34 of 2016. * Cap. 1:03 of the Laws of Malawi. [18] [19] [20] [21] Defendant as the contract was found to be substantially invalid for the reason that the advertisement for the position was made through a voucher. The 1 Defendant noted that any claim that the 4" Claimant may have should be made against the DG, Mr. Godfrey Itaye, who had directed that the advertisement of the vacancy for the position should be by way of a voucher. The 1*' Defendant nullified the employment contract of the 5 Claimant as a Human Resources Manager of the 2™ Defendant as the contract was found to be substantially flawed and invalid for the reason that the advertisement of the vacancy for the position was made through a voucher. The 1* Defendant noted that any claim against the nullification of the employment contract that the 5‘ Claimant may have should be made against the people who decided to advertise the vacancy of the post by way of a voucher. The 1% Defendant made a finding that the appointment of the 6" Claimant as a PMG of Malawi Posts Corporation (MPC) and his deployment to the 2™ Defendant as DG was illegal and therefore a nullity. [22] [23] [24] [25] [26] The 1* Defendant directed the Board of Directors of MPC and the Board of Directors of the 2"! Defendant not to pay the 6" Claimant anything at the end of his contract by way of benefits and that if payment had already been made to him, the funds should be claimed back. The 1‘ Defendant noted that if the 6" Claimant had any claim, it should be made against the members of the Board of Directors that illegally recommended his appointment as PMG, the President who illegally appointed him as such and the former Chief Secretary to the Cabinet who illegally redeployed him to the 2™ Defendant as DG. The 1*' Defendant nullified the employment contract of the 7 Claimant as a Deputy Director of Computer Emergency Response Team (CERT) of the 24 Defendant as the contract was found to be irregular. The 2™ Defendant had apparently breached its own Recruitment Policy which prohibited external recruitment before conducting internal assessments. In addition, the interview panel that interviewed the 7" Claimant was allegedly irregular and effectively non-quorate as a result of non- qualification of one of the panelists making the results of the interview questionable. The 1% Defendant directed the 2™ Defendant to institute fresh recruitment process and ensure that the post was filled in accordance with the legal and policy framework. [27] [28] [29] [30] [31] The 1*' Defendant nullified the employment contract of the 8 Claimant as a Universal Access Manager of the 2"! Defendant as the contract was found to be marred by unconstitutional, illegal, irregular and unreasonable acts. The lst Defendant directed the 2"! Defendant to conduct fresh recruitment of the position by 31“ July, 2021. The 1*' Defendant nullified the employment contract of the 9" Claimant as a Director of Economic Regulation of the 2 Defendant as the contract was found to be illegal and irregular. The 1* Defendant further directed that no public funds should be used to settle any claim that she may have against the nullification. The 1*' Defendant directed the Board of Directors of the 2°’ Defendant to recruit for the position by 30" July, 2021 in accordance with the law and policy that govern the 2™ Defendant. The 1*t Defendant nullified the employment contract of the 10" Claimant as a Marketing Assessment and Research Manager of the 2"! Defendant. The contract was found to be unconstitutional, illegal and irregular. The main reason for that finding was because the advertisement for the vacancy of the position was made using a voucher. [32] [33] [34] [35] [36] The 1‘ Defendant directed the Board of Directors of the 2"' Defendant to recruit for the position by 31* July, 2021. 1" Claimant The 1*' Defendant nullified the employment contract of the 1 as a Director of Postal of the 2" Defendant as he did not have the right qualifications for both positions that he held at the 2"! Defendant. His employment with the 2"! Defendant was described by the 1‘ Defendant as one that should never have been in the first place. The 1*t Defendant nullified the employment contract of the 12" Claimant as a Director of Internal Audit of the 2"’ Defendant. That was because his position was found to have never existed in the institution’s organogram. The 1* Defendant directed that no public funds should be used to settle any claim that the 12" Claimant may have against the nullification of his contract with the 2"! Defendant. Any claim that the 12 Claimant may have should be made against individual members of the Board of Directors of the 2"! Defendant that recruited him to the position in the year 2016 and individual members of the Board of Directors that renewed his contract in the year 2020. 10 [37] [38] [39] [40] [41] The 1*t Defendant nullified the employment contract of the 13" Claimant as a Revenue Assurance Manager of the 2"? Defendant as the contract was found to be unconstitutional, illegal and irregular. The 1*t Defendant directed the 2"! Defendant to conduct fresh recruitment for the position by 31* July, 2021. The 1*t Defendant nullified the employment contract of the 14" Claimant as a Deputy Director of Information Technology of the 2" Defendant as the contract was found to be unconstitutional, illegal and irregular. His recruitment was substantially invalid largely for reasons that the advertisement for the vacancy for the position was made through a voucher. The 1 Defendant directed the Board of Directors of the 2"4 Defendant to openly and transparently recruit for the position by 30" July, 2021. The 14 Claimant was at liberty to apply for the post, if he wanted, after the position had been advertised. Any claim that the 14" Claimant may have should be made against the DG, Mr. Godfrey Itaye, who decided not to declare interest during the shortlisting process and who directed that the advertisement for the vacancy for the position should be by way of a voucher. 11 [42] The 1*t Defendant nullified the employment contract of the 15" Claimant [43] [44] [45] [46] as an Information Technology Support Manager of the 2"! Defendant as the contract was found to be unconstitutional, illegal and irregular. The advertisement for the vacancy for the position was made through a voucher. The 1%* Defendant directed the 2™ Defendant to conduct fresh recruitment for the position in accordance with the applicable legal and policy framework. The recruitment was to be done by 30" July, 2021. The 1*t Defendant nullified the employment contract of the 16" Claimant as an Administration Manager of the 2"? Defendant. The reason was that the 2™ Defendant did not afford an opportunity to two internal staff members that were eligible for the position, hence, irregular and therefore maladministration. The 1% Defendant directed the 2’ Defendant to recruit for the position by 30" July, 2021. Any claim that the 16 Claimant may have in relation to the nullification of his contract was to be made against the 2"! Defendant’s employees who decided against internal recruitment and also those who wrongly shortlisted him for the post. 12 [47] [48] [49] [50] [51] The Claimants prayed for, inter alia, a like order to certiorar1 quashing the decision of the 1“! Defendant nullifying their employment contracts, damages and costs. In its defence and sworn statement in opposition to the review, the 1“ Defendant stated that it properly exercised its jurisdiction by investigating a complaint lodged with it under section 5 of the Ombudsman Act. The 1* Defendant further stated that it could inquire into and investigate any request or complaint in any instance or matter of abuse of office or unfair treatment of any person by an official in the employ of any organ of Government or manifest injustice or conduct by such official which may properly be regarded as oppressive or unfair in an open and democratic society. The 1*' Defendant averred that the remedy given was fair and proper considering the act of maladministration that had been complained of. It acted constitutionally, lawfully, reasonably and within its powers as it considered all the evidence that was before it. The 1* Defendant denied each and every allegation of fact in the grounds on which reliefs were sought as if the same were herein set out and traversed seriatim. 13 [52] [53] [54] [55] [56] The 1* Defendant prayed to the Court for declarations that its decision was constitutional and lawful under section 123, 126 of the Constitution and section 8 of the Ombudsman Act and that it had powers to investigate and release a determination and directives that nullified the Claimants employments. In its defence and sworn statement in opposition to the judicial review, the 2" Defendant stated that it was neither involved in the decision- making process nor did it make the decisions and directives contained in the 1‘ Defendant’s report. The 2™ Defendant further stated that it never made a decision that is amenable to judicial review before the Court herein and_ that consequently it was not a proper party to the present proceedings. The 2™ Defendant through its Management tasked a three-member team to prepare the response and come up with a single collective submission to the allegations from the 1*' Defendant in consultation with all the Claimants. Each of the Claimants who was the subject of the investigation was given an opportunity to make representations on the submission before it was submitted to the 1‘t Defendant. 14 [57] The Board of Directors of the 2"! Defendant recognized that the 1 Defendant’s directives were binding on it and that the Claimants had made their representations firstly in the collective submission and also, for most of them, in their physical appearance before the 1*' Defendant. [58] The 2™ Defendant therefore prayed that the judicial review proceedings against it be dismissed with costs. Issues for Determination by the Court [59] There are eighteen (18) issues to be determined by the Court. These are 59.1 Whether the 1‘ Defendant properly assumed jurisdiction to investigate the complaint made against the 2"! Defendant? 59.2 Whether the remedies given by the 1*' Defendant were reasonable and fair in the circumstances of the Claimants? 59.3 Whether the Public Service Act applies to employees of the 2™ Defendant? 59.4 Whether the 2™ Defendant’s policy (on recruitment and promotion) as construed by the 1* Defendant are consistent 15 59.5 59.6 59.7 59.8 59.9 with sections 4, 12 and 13 of the Public Service Act as read with sections 19 and 22 of the Communications Act? Whether the 1*' Defendant misconstrued section 4 of the Public Service Act, misdirected herself and thereby committed an error of law in insisting on the 2™ Defendant’s policy provisions? If the policy is inconsistent with the Public Service Act, whether the 1°' Defendant committed an error of law in relying on the same when making its determinations? Whether the 1*t Defendant’s decisions were constitutional, lawful and reasonable? Whether the 1*' Defendant had jurisdiction to nullify employment contracts of the Claimants and make consequential subsequent orders that 1t did? Whether the 1‘t Defendant misconstrued the 2™ Defendant’s recruitment and promotion policy, misdirected herself and thus committed an error of law and fact in concluding that the 2™ Defendant’s Management erred in opening the post to external candidates? 16 59.10 Whether the 1*' Defendant misdirected itself and committed an error of law in concluding that the interview panel for the 7" Claimant was non-quorate? 59.11 In the event that the directives of the 1** Defendant were unlawful, whether it was lawful and reasonable for the 2™ Defendant to comply with the said directives and orders and implement them as directed? 59.12 Whether the Claimants herein were duly informed of the investigations relating to recruitments at the 2"? Defendant and whether they were afforded opportunities to make representations on the same? 59.13 Whether in implementing the 1‘ Defendant’s directives in the manner it did, the 2"! Defendant acted reasonably considering the letter and spirit of the provisions of the Public Service Act and the Communications Act and the timelines set out in the 1* Defendant’s Report including timelines relating to the filling up of positions? 59.14 Whether the 2™ Defendant had authority and jurisdiction to re-hear the Claimants on the same matters that had been investigated, heard and determined by the 1*' Defendant, and that consequently, whether such further hearings by the 2"¢ 17 Defendant would have been lawful, effective, non- contemptuous and enforceable? 59.15 Whether the Claimants’ application for judicial review alleges and raises claims for unfair dismissal and remedies incidental thereto, thereby taking away the jurisdiction of this Court to entertain such claims as they fall within the ambit and jurisdiction of the Industrial Relations Court, which is the proper forum and as such, such claims must be dismissed with costs? 59.16 Whether the 2"! Defendant is the wrongful party to these proceedings in so far as the judicial review herein seeks to review the decision-making process and subsequent directives of the 1 Defendant made pursuant to the Constitution and the Ombudsman Act as it neither made the said decisions nor the directives complained of, and further nor did it conduct the investigations that led to the decisions made against the Claimants? 59.17 Whether the Claimants are entitled to the reliefs sought? 59.18 Whether the Claimants or the Defendants are entitled to the Costs of this action? 18 Arguments, Law, Application and Analysis [60] [61] [62] The first advocate to address the Court was Mr. Patrick Gray Mpaka, who happens to be the chairman of the Malawi Law Society. He prefaced his arguments by informing the Court that even though he was representing the 8" and 9" Claimants, as the Bar, they had agreed that their addresses to the Court were going to follow the order in the Legal Education and Legal Practitioners Act? and the rest of the advocates were going to follow their seniority at the Bar. The first point taken by Advocate Mr. Patrick Gray Mpaka was the representation of the 1 Claimant by Advocate Mr. Chancy Thomu Gondwe. He informed the Court that the 1‘ Defendant had ethical issues with it and that the 1*' Defendant was going to address the Court in a little more detail on the matter. The Sworn Statement in Opposition to the Judicial Review Proceedings of Ms Hawa Chatepa, the Chief Legal Officer of the 1‘ Defendant > Act No. 31 of 2018. For the avoidance of doubt, section 33 is to the effect that legal practitioners shall take precedence in the following order- (a) the Attorney General; (b) the Solicitor General; (c) Senior Counsel, according to the date of their conferment; (d) the Chairperson of the Society; and (e) legal practitioners according to the date they signed the roll. 19 [63] [64] [65] [66] showed that Advocate Mr. Chancy Thomu Gondwe was a member of the Board of Directors of the 2" Defendant on 10 August, 2015 that endorsed the appointment of the 1*t Claimant as a DG The 1*' Defendant was of the view that Advocate Mr. Chancy Thomu Gondwe was therefore conflicted and that he should not have represented the 1*' Claimant in this matter or indeed any of the other claimants. Advocate Mr. Luciano Mickeus objected to the first point taken by Advocate Mr. Patrick Gray Mpaka on the ground that the Court had a lengthy pre-trial conference and that, that was the time when the issue of Advocate Mr. Chancy Thomu Gondwe being conflicted should have been raised and dealt with. It could not be raised during the substantive hearing. Advocate Mr. Shepher Mumba joined issues with Advocate Mr. Luciano Mickeus on this point and prayed to the Court that the matter should be ignored and that the Court should proceed to hear and determine the substantive matter. Taking his turn, Advocate Mr. Benard Ndau addressed the Court briefly on the matter of representation of the 1*' Claimant by Advocate Mr. Chancy Thomu Gondwe. He argued that to the extent that the 1“ Claimant made no claims against the 2"! Defendant, the 2" Defendant had no issues with the representation of the 1*' Claimant by Advocate 20 Mr. Chancy Thomu Gondwe provided the 1** Claimant remained in his lane. [67] In his address to the Court, Advocate Mr. Wesley Mwafulirwa for the 1* Defendant, argued that Advocate Mr. Chancy Thomu Gondwe who was representing the 1*' Claimant was conflicted in this matter. [68] Advocate Mr. Wesley Mwafulirwa argued that section 3 of the repealed Communications Act® established the 2" Defendant as an Authority whose composition and appointment was governed by sections 6 and 7 of the same Acct. [69] He further argued that the 2"! Defendant was a Board of Directors and that its members had fiduciary duties akin to that of non-executive directors of private limited companies. Aberdeen Railway Co -vs- Blaikie Brothers’ was cited in support of the proposition for private limited companies. [70] Advocate Mr. Wesley Mwafulirwa also referred the Court to Chapter 7 of the Malawi Law Society Code of Ethics which proscribes lawyers to act in situations that pose conflict or potential conflict of interest. More specifically he referred to rules 1, 2 and 3 which provide as follows: ° Cap. 68:01 of the Laws of Malawi. 7 (1854) 1 Macq. 461. 21 [71] [72] [73] 1. A lawyer must not represent opposing parties to a dispute. 2. A lawyer must not act for more than one party in a conflict situation unless all such parties consent and it is in the best interests of the parties that the lawyer so acts. 3. Except with the consent of the client or former client a lawyer must not act against a client or former client if the lawyer has confidential information that could be used to the person’s disadvantage in the new representation. Finally, Advocate Mr. Wesley Mwafulirwa cited the case of Chilima and another -vs- Mutharika and another® in which the High Court sitting in a constitutional matter or cause, reprimanded the former Attorney General for his role in what the court considered to have been a situation where the office of the Attorney General was in a clear conflict of interest. There are a few things which the Court wishes to observe quickly on this issue. First, the Court fully agrees with the argument by Advocate Mr. Wesley Mwafulirwa that composition or membership of the 2"¢ Defendant as an Authority was regulated by section 6 of the repealed Communications Act. This provision has been retained in the new Communications Act as section 7, albeit with some modifications. 8 Constitutional Reference No. 1 of 2019 (High Court of Malawi) (Lilongwe District Registry) (Unreported). 22 [74] [75] [76] [77] [78] Second, both the old section 6 and the new section 7 of the Communications Act require that one of the persons to be appointed as a member of the Authority shall possess qualifications, expertise and experience in law. Third, it goes without saying that Advocate Mr. Chancy Thomu Gondwe found himself as a member of the Authority because of his qualification, expertise and experience in the field of law. Fourth, Aberdeen Railway Co -vs- Blaikie Brothers indeed established the “no conflict rule” in relation to directors’ duties. The rule is to the effect that a director must not put himself in a position where his own interests conflict with those of the company. The rule is indeed based on the fiduciary duty of directors, which requires them to act in good faith in the best interests of the company. If a director has a personal interest in a transaction, they may be tempted to act in their own best interests, rather than those of the company. Fifth, the Chilima case is distinguishable from the present scenario because the former Attorney General was a legal advisor to the Electoral Commission and at the same time, he was representing the Electoral Commission in a constitutional cause or matter in which he was supposed to assist the Court resolve the issues without taking sides. 23 [79] [80] The understanding of the Court is that in constitutional litigation, the Attorney General cannot take sides with any party to the proceedings as he or she is also a custodian of the Constitution as a Law Officer.? The Attorney General’s role would be more or less like that of amicus curiae to assist the Court to resolve the constitutional questions or issues before it.!° The above position of the Attorney General’s role as espoused by the Supreme Court of Appeal was adopted and reaffirmed by this Court in Jam Willem Akster -vs- The State!’ where it held that Advocate Mr. Victor Jere could not represent both the Director of Public Prosecutions ? Law Officer is a term of art with a specific meaning ascribed to it. It is defined in the General Interpretation Act, Cap. 1:01 of the Laws of Malawi, to mean a person for the time being holding the office of Attorney General or Solicitor General. 10 See for instance, Mutharika and another -vs- Chilima and another, MSCA Constitutional Appeal No. 1 of 2020 where the Supreme Court of Appeal stated as follows: ... We hold that although the Attorney General was properly appointed to represent the second appellant, in terms of section 20 of the Electoral Commission Act, at the commencement of the proceedings in the court below, when the matter became a constitutional referral the Attorney General, as a Law Officer number one and custodian of the Constitution, should have stepped back and ceased to represent the second appellant. The Attorney General, having withdrawn from representing the second appellant, should have taken up the role of assisting the Court below to resolve the three constitutional issues on matters of law which had been referred to the Court.... It is obvious to us, as it should have been to the Court below, that the Attorney General must have been aware that he could and should have continued participating in the proceedings only in his capacity of Attorney General and Law Officer to guide the court below on matters of law in resolving the three constitutional issues, as opposed to representing or taking sides with the second appellant. "| Constitutional Referral No. 2 of 2021 (High Court of Malawi) (Principal Registry) (Civil Division) (Unreported), Paragraphs 24 to 27, a Ruling of 16 November, 2021. 24 [81] [82] [83] [84] (DPP) and the Honourable Attorney General in one constitutional proceeding as the interests of the two offices are bound to be different. The situations of conflict of interest that obtained in both the Aberdeen Railway Co -vs- Blaikie Brothers and Chilima cases and as envisaged by Chapter 7 of the Malawi Law Society Code of Ethics are not obtaining in the present matter. Advocate Mr. Chancy Thomu Gondwe is no longer a director of the 2" Defendant herein. While he may have been offering some legal advice to the 2™ Defendant as a member of the Board of Directors, he is not representing the 2™ Defendant now. There is no information to suggest that the 2" Defendant was Advocate Mr. Chancy Thomu Gondwe’s client. The 1* Claimant was not the Authority. Advocate Mr. Chancy Thomu Gondwe neither represented the 1*t Claimant nor the 2™ Defendant as such Authority (as his former clients) for him to be in a position of conflict of interest now as envisaged by Chapter 7 of the Malawi Law Society Code of Ethics. Unless the Court is missing something, it is unable to appreciate how Advocate Mr. Chancy Thomu Gondwe is in a situation of conflict of interest in this matter by representing the 1* Claimant. Advocate Mr. Chancy Thomu Gondwe no longer sits on the Board of Directors of the 25 2™ Defendant. He is not representing the 2"? Defendant. The 1*t Claimant was discharged from the 2"! Defendant as a DG. [85] In short, being part of the Board of Directors of the 2" Defendant that endorsed the appointment of the 1‘' Claimant in the year 2015 does not put Advocate Mr. Chancy Thomu Gondwe in a position of conflict of interest within the legal framework discussed above as to prevent him from representing the 1*' Claimant in this Court when both of them are no longer part of and are not associated with the 2™ Defendant. Transparency, Accountability and Jurisdiction of the Ombudsman [86] The second point that Advocate Mr. Patrick Gray Mpaka took was on the fundamental principles of the Constitution, more particularly transparency and accountability as provided for in section 12 thereof. He argued that these twin principles apply to the 1*' Defendant as they do to every holder of legal authority. In the words of the Supreme Court of Appeal, “[a]ccountability and transparency are necessary to promote the values of an open and democratic society.”’” [87] In support of the above proposition, he cited the article, Horizontal Accountability: Bottom-Up Oversight of Public Duty Bearers in Malawi 2 The Attorney General -and- Jumbe and another, MSCA Constitutional Appeal No. 29 of 2005 (Unreported). 26 [88] [89] [90] [91] written by Prof. Dan Kuwali and Dr. Chikosa M. Silungwe!3 as well as the Chilima case. On the jurisdiction of the 1‘! Defendant, Advocate Mr. Patrick Gray Mpaka argued that it is provided for under section 123 (1) of the Constitution. He added that the power is explained further in sections 5 to 13 of the Ombudsman Act. Section 7 (1) of the Ombudsman Act anticipates that “any person wishing to lay a request or complaint in respect of any instance or matter [to be investigated by] the Ombudsman shall do so by communication in writing addressed to the Ombudsman or in such manner as the Ombudsman may determine.” Advocate Mr. Patrick Gray Mpaka further argued that there must always be a person who has suffered injustice who lays a request or complaint. He observed that the powers of the Ombudsman in section 123 (1) of the Constitution to investigate co-exist with the nghts, “of any person with sufficient interest in the case the Ombudsman has determined” to question the Ombudsman under section 123 (2) of the Constitution. He continued to argue that the duty of transparency and accountability of the Ombudsman, at least to the person with sufficient interest in the '3 Journal of Comparative Law in Africa, Vol. 9 No. 1 (2022) 1. 27 [92] [93] [94] matter, arises from the time of the Ombudsman receiving a complaint from a person who has suffered injustice under section 123 (1) of the Constitution and section 5 of the Ombudsman Act. If the protection of the legitimate interests of the person with sufficient interest to be able to comprehensively question the Ombudsman’s determination is to have a real meaning, knowing the person who moved the Ombudsman and the interests of that person and whether the person suffered injustice, is fundamental to the mght to be heard by the person with sufficient interest over the determination. Advocate Mr. Patrick Gray Mpaka argued that the 1*t Defendant’s decision at paragraph 3 on page 6 of the 1 Defendant’s report compromises this fundamental aspect of the mght to be heard by the Claimants in that without identifying any person that lodged a complaint before her, the 1 Defendant proceeded to make adverse findings and declarations. Third, the responsibility of the Ombudsman under section 8 of the Ombudsman Act is limited to notifying the outcome of the inquiry/investigation to the person who laid the matter before the Ombudsman and the calling for, or requiring remedying or reversal of the matter concerned. 28 [95] [96] [97] [98] The above falls well within the most that the Ombudsman can do under section 126 of the Constitution, which is, to direct appropriate administrative action to be taken to redress the grievance or to cause the appropriate authority to ensure that there are in future reasonably practicable remedies to redress a grievance. Advocate Mr. Patrick Gray Mpaka also contended that it is not for the Ombudsman to declare nullity any actions by any authority based on a complaint before that office. That power resides with the Courts. Section 126 of the Constitution anticipates that after the exercise of powers under Chapter X, there will be administrative action to be taken by the public authority subject of an Ombudsman’s investigation so as to redress the grievance. It is not for the Ombudsman to redress the grievance. Yet, the 1‘* Defendant nullified the 8 and 9" Claimants and all the other Claimants’ employment contracts. This was clearly in excess of the jurisdiction of the Ombudsman under both the Constitution and the Ombudsman Act. The 2"! Defendant could not, at law, simply adopt the 1*t Defendant’s report and proceed to discharge the Claimants without due process. The whole process as taken by the two Defendants is null and void at law and must be so declared under section 108 (2) of the Constitution as read with Order 19, rule 20 of the Courts (High Court) (Civil Procedure) Rules. 29 Nature of the Review [99] Section 123 (2) of the Constitution grants the nght to any person with sufficient interest to request the High Court to review a decision of the Ombudsman. [100] Commenting on the nature and extent of remedies obtainable under the authority of section 123 (2) of the Constitution, the Supreme Court of Appeal had the following to say: It is also important to make a distinction between a judicial review and reviewing a case. It is trite law that judicial review is directed at reviewing the decision-making process. It does not direct its inquiry into the merits of the case. On the other hand, reviewing a case is wider and goes into the merits of the case and considers the whole evidence adduced to see if the decision arrived at can be supported on the evidence.4 [101] In State -and- Ombudsman, ex-parte Nyoni'> the High Court held that under section 123(2) of the Constitution, a review of the Ombudsman’s decision entitled the Court to reconsider the whole matter de novo and determine what would be the more just resolution of the case. '4 4ir Malawi Ltd -vs- The Ombudsman, MSCA Civil Appeal No. 1 of 2000. 15 12011] MLR 433. 30 [102] The Court agrees with the argument of Advocate Mr. Wesley Mwafulirwa that in respect of the 1*t Defendant, the review encompasses both merits and demerits of its decision/determination, while in respect of the 2™ Defendant, it is a pure judicial review of administrative action as understood in its ordinary sense. [103] Section 123 of the Constitution is on functions and powers of the office of the Ombudsman. It provides as follows: (1) The office of the Ombudsman may investigate any and all cases where it is alleged that a person has suffered injustice and it does not appear that there is any remedy reasonably available by way of proceedings in a court or by way of appeal from a court or where there is no other practicable remedy. (2) Notwithstanding subsection (1), the powers of the office of the Ombudsman under this section shall not oust the jurisdiction of the courts and the decisions and exercise of powers by the Ombudsman shall be reviewable by the High Court on the application of any person with sufficient interest in a case the Ombudsman has determined. [104] Section 15 of the Constitution is on the protection of human rights and freedoms. Subsection (2) thereof provides as follows: (2) | Any person or group of persons, natural or legal, with sufficient interest in the promotion, protection and enforcement of rights under 3] this Chapter shall be entitled to the assistance of the courts, the Ombudsman, the Human Rights Commission and other organs of Government to ensure the promotion, protection and enforcement of those rights and the redress of any grievances in respect of those rights. [105] Section 46 of the Constitution 1s on enforcement of human rights and freedoms. Subsection (2) thereof provides that: Any person who claims that a right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled- (a) to make application to a competent court to enforce or protect such a right or freedom; and (b) to make application to the Ombudsman or the Human Rights Commission in order to secure such assistance or advice as he or she may reasonably require. [106] All the above three provisions of the Constitution have been subject of interpretation by both the High Court and the Supreme Court of Appeal. [107] It was argued by Advocate Mr. Chancy Thomu Gondwe that section 15 (2) and 46(2) of the Constitution grant access to persons to both the courts and the office of the Ombudsman. 32 [108] Section 15(2) grants access to a person or group of persons with sufficient interest in the promotion, protection and enforcement of rights and freedoms under Chapter IV of the Constitution. [109] Similarly, section 46(2) of the Constitution grants access to a person who claims that a nght or freedom guaranteed by the Constitution has been infringed or threatened. [110] With respect to access to the courts, the courts have held that for a person to have sufficient interest or locus standi, they must themselves have suffered the violation, infringement or threat of the human rights or freedoms complained of.!° [111] The 1“ Defendant, through Advocate Mr. Wesley Mwafulirwa, added that in addition to what Advocate Mr. Patrick Gray Mpaka addressed the Court on, on transparency and accountability, section 11 of the Constitution is also relevant and to the point in this matter. [112] It requires that appropriate principles of interpretation shall be developed and employed by the courts to reflect the unique character and supreme status of the Constitution. Further, in interpreting the provisions of the 16 See for instance, Civil Liberties Committee -vs- Minister of Justice and another [2004] MLR 55 (SCA). See also The State and George Chaponda and another, ex-parte Mr. Charles Kajoloweka and others MSCA Civil Appeal No. 5 of 2017 (Unreported). 33 Constitution, a court of law shall promote the values which underlie an open and democratic society. [113] In that regard, the 1‘ Defendant conceded that it ought to be open, transparent and accountable in the manner in which it carries out its inquiries/investigations and also that it 1s required to observe and uphold the Constitution and the rule of law and that no institution or person shall stand above the law. [114] Advocate Mr. Wesley Mwafulirwa argued that the cardinal principle in interpreting provisions that relate to powers of the Ombudsman is that at all time a generous interpretation must be used, one that broadens rather than restricts the powers and authority of the Ombudsman. In his aid on this proposition, he cited Air Malawi Ltd -vs- The Ombudsman and The State and The Ombudsman, ex-parte The Principal Secretary for Finance and 2 others."' [115] Thus, he invited the Court to be broad and generous in its interpretation of the term, “injustice” or indeed “maladministration” in finding whether an anonymous complaint can be lodged and investigated by the 1* Defendant. '7 MSCA Civil Appeal No. 24 of 2017 (Sitting at Lilongwe) (Unreported). 34 [116] [117] [118] It was also argued that the learned authors, De Smith, Stanley A., and J. M. Evans in De Smith’s Judicial Review of Administrative Action" in adumbrating the concepts of “injustice” and “maladministration” as couched in Ombudsman related laws stated as follows: “Injustice” has been widely interpreted so as to cover not merely injury redressable in a court of law, but also “the sense of outrage aroused by unfair or incompetent administration, even where the complainant has suffered no actual loss.”... The term maladministration includes: corruption; bias and unfair discrimination; misleading a member of the public; failure to notify him of his rights... Advocate Mr. Wesley Mwafulirwa continued to argue that the scheme of section 123(1) of the Constitution is to deal with issues in an informal way as opposed to court processes. Thus, the powers of the 1‘! Defendant to inquire into and investigate injustices and maladministration is so wide and broad and from comparable case law and writings of learned authors, the same includes investigation into not just abuse of power, but also any other public officers’ “outrageous” activities including cronyism, nepotism and all other corrupt activities. In this matter, the Ombudsman had a righteous indignation and wanted things to change for the better at the 2" Defendant. 18 6th Edition, London (Stevens and Sons Ltd) 2007. 35 [119] [120] [121] [122] The Ombudsman has powers to regulate its own procedures as to how and what kind of complaints the office should handle. The legal scheme of things does not limit the complainants to identify themselves or require the presence of a complainant at any hearings. In any case, none of the Claimants herein specifically requested to indulge the anonymous complainant. The subject of the investigation in the present matter was recruitment procedures obtaining at the 2"! Defendant. The 2™ Defendant was informed, in writing, of the investigations and inquiry. All the Claimants in the present matter were likewise called upon to make representations with regards to the issues raised in the complaint. The 2™ Defendant was also given the right to seek review of the determination that was made and the directives that were issued. A very broad and generous interpretation of the powers of the 1“ Defendant, therefore, allowed the 1‘ Defendant to investigate the 2™ Defendant in the manner the 1*' Defendant did and within the purview of the constitutional and statutory legal frameworks, all the legitimate expectations of all third parties, including the Claimants were met. [123] Advocate Mr. Wesley Mwafulirwa contended that the Supreme Court of Appeal noted that section 123(1) of the Constitution did not mean that a person cannot go to court. In considering whether to go to court, one has 36 [124] [125] [126] to look at how expensive that route would be, the convenience and practicability of doing so.’ It is the informality that makes the office of the Ombudsman to be attractive to most people. There will also be issues of political sensibilities that may stand in the way of people and that such matters go to whether there will be a practicable remedy. An anonymous complainant in this case, owing to the sensitivities of the matter, would not have had a practicable remedy in court, because the courts would not deal with an anonymous party. This Court accepts the submission by the 1* Claimant that since the access provisions in both section 15(2) and section 46(2) of the Constitution are both to the courts and to the office of the Ombudsman, it cannot be expected that the interpretation on /ocus standi or sufficient interest would differ when it comes to access to the office of the Ombudsman in respect of violation or infringement or threat of human rights and freedoms. It has to be the same notwithstanding that the office of the Ombudsman does not exercise judicial function. If Parliament had intended that the question of locus standi or sufficient interest between the courts and the office of the Ombudsman should be treated differently, it would have put them in two different provisions. However, Parliament in its wisdom never did that. 19 017 above. 37 [127] [128] [129] [130] The question then, becomes, could there be a stricter access to the office of the Ombudsman when it comes to violations or infringements or threats of human rights and freedoms and a less stringent one, open to all and sundry when it comes to non-human rights related infringements, say administrative or alleged statutory breaches? This is where section 123(1) of the Constitution comes into play. The wording of section 15(2) and section 46(2) of the Constitution are no stricter than the wording of section 123(1). Section 123(1) of the Constitution, as we have seen, states that the office of the Ombudsman may investigate any and all cases where it is alleged that a person has suffered injustice. The only limitation is that it does not appear that there is any remedy reasonably available by way of proceedings in a court or by way of appeal from a court or where there is no other practicable remedy. This Court accepts the argument by the Claimants that in our context, the person that must approach the office of the Ombudsman must be the very person that has suffered injustice, and no other. The phrase, where it is alleged that a person has suffered injustice is key here and cannot mean every other person. Otherwise, any other person who has not suffered injustice would not have sufficient interest or locus standi as it were. 38 [131] [132] [133] [134] Section 126 of the Constitution is on the remedies that the Ombudsman may give. At this point, he or she would already have assumed jurisdiction based on section 123(1) of the Constitution and section 5 of the Ombudsman Act. In that regard, reference to an injustice in section 126 of the Constitution can only be that which was suffered by a person who lodged a complaint under section 123(1). The wording of section 123(1) of the Constitution does not permit the broad interpretation that includes, “the sense of outrage aroused by unfair or incompetent administration, even where the complainant has suffered no actual loss” as contended by the 1“ Defendant. The Constitution has to be interpreted the way it is worded bearing in mind its unique character and supreme status as section 11(1) thereof enjoins this Court to do and as correctly argued by Advocate Mr. Wesley Mwafulirwa. In this regard, it requires that a person must have suffered injustice. This scheme is also mirrored in the Ombudsman Act. The learned authors and foreign case law cited in this matter by the 1“ Defendant were not interpreting our section 123(1) of the Constitution and the Court is not persuaded by them. In any event, broad interpretation cannot be employed in a manner that disregards or ignores the exact language or diction used by our Parliament in our Constitution. 39 [135] This Court also agrees with the argument by the Claimants that the Supreme Court of Appeal in Zhe State and The Ombudsman, ex-parte The Principal Secretary for Finance and 2 others did not fully consider the import of the whole phrase, where it is alleged that a person has suffered injustice as is used in the Constitution. The Supreme Court of Appeal in that case focused on injustice and the limitation in section 123(1) of the Constitution. [136] The Court will do well to reproduce the relevant part of what the Supreme Court of Appeal actually stated in the above case on page 16 of its Judgment: Under the Constitution the Ombudsman can investigate ‘any and all cases’ of alleged injustice... If we may therefore summarise the law under the Constitution as we understand it, the Ombudsman will only investigate a matter if: i. There is an alleged injustice; ii. It appears to the Ombudsman that there is no reasonably available alternative remedy via court proceedings or an appeal or other practicable remedy; and iii. A court has not subsequently assumed jurisdiction. 40 [137] The Supreme Court of Appeal went a step further and analyzed section 5 of the Ombudsman Act. It juxtaposed it with section 123(1) of the Constitution and noticed quite some disparity between the Constitution and the Ombudsman Act. It then said at page 17 of the last paragraph of the Judgment: Putting the Constitution and the Act side by side it is obvious that there is a disparity between them. The Constitution provides for a more expansive jurisdiction than the Act. We of course appreciate that the Constitution trumps the Act and the easier way out would be to go strictly by the Constitution and forget the Act. We think it is possible however to read/apply the two provisions as one and get the best out of both schemes without at the same time compromising the superiority of the constitutional provisions. Proceeding thus, it is our considered view that the Ombudsman’s jurisdiction is to investigate any allegation of injustice including allegations inter alia of abuse of power, unfair treatment, manifest injustice, oppressive or unfair conduct if it appears to the Ombudsman that: (1) | There is no reasonably available alternative remedy via court proceedings, or an appeal or other practicable remedy; and (ii) | A court has not assumed jurisdiction; and (111) |The complaint is not frivolous and vexatious. [138] In Air Malawi Ltd -vs- The Ombudsman,° the Supreme Court of Appeal put to rest the question of what triggers the jurisdiction of the 1“ Defendant. It is section 123(1) of the Constitution. Section 5 of the 2° MSCA Civil Appeal No. 1 of 2000. A] Ombudsman Act does not take away anything from the prescription in section 123(1) of the Constitution. The Supreme Court of Appeal said: The powers which the Ombudsman Act gives to the Ombudsman do not derogate from the powers which section 123(1) of the Constitution gives to the Ombudsman and for purposes of this case we will treat the powers that derive from the Constitution and the Act as the same. It is clear in our judgment that these powers give the Ombudsman a discretion to investigate “any and all cases” where it is alleged that a person has suffered injustice. [Emphasis supplied] [139] The Supreme Court of Appeal went further in the above case when it said as follows: The office of the Ombudsman is a new phenomenon which has been created by our new Republican Constitution. It is important that its position in the present constitutional order is understood by the holders of the office of Ombudsman and the general public. The Ombudsman is now an integral part of a democratic system and should be looked upon as part of the democratic fabric of our society. The role of an Ombudsman must be to investigate the bureaucratic unfairness which is constantly being committed either advertently or inadvertently by public or private officials and agencies. The Ombudsman must primarily be investigating those complaints which arise from administrative misunderstandings, administrative errors and negligence which have resulted in an injustice being occasioned to a person. Such complaints are easily amenable to quick resolution and courts would not be the appropriate forum to resolve them. The Ombudsman’s role should be one in which he endeavours to find a mutually acceptable resolution of the complaint. Such an approach will result in greater acceptance by the parties 42 [140] [141] [142] [143] and will provide a more rapid resolution than an approach which is directed at a finding of right or wrong. Advocate Mr. Chancy Thomu Gondwe and Advocate Mr. Wanangwa Hara argued that the omnibus jurisdictional thinking espoused by the Supreme Court of Appeal in The State and The Ombudsman ex-parte The Principal Secretary for Finance and 2 others clearly ignored the phrase, where it is alleged that a person has suffered injustice in its interpretation and summary of the import of section 123(1) of the Constitution. The Supreme Court of Appeal focused on the phrase, ‘allegation of injustice’ and did not consider the whole phrase as put in section 123(1) of the Constitution that provides, ‘where it is alleged that a person has suffered injustice’. They contended that the position of the law on the jurisdiction of the 1*' Defendant had long been settled. They went on to submit that another indicator that not all and sundry can approach the office of the Ombudsman but only those that have directly suffered injustice is to be derived from the fact that as an institution, the office of the Ombudsman, is a “one person” office unlike the courts, and yet the courts have imposed stricter access benchmarks to them. The framers of the Constitution could not have intended wider access rights to an institution with fewer, if not only one, case handler and give 43 narrower access rights to an institution with more case handlers and more presence nationwide. [144] The Claimants finally submitted that what triggers the jurisdiction of the 1 Defendant to exercise its powers, duties, functions and responsibilities is the presence of three key essences as laid down in section 123(1) of the Constitution. [145] First, there must be a person who must complain. Second, the person must complain that they have suffered injustice themselves. Third, the sort of injustice that the person has suffered must have no remedy available by way of court proceedings or by way of appeal from a court or no practicable remedy must be available for the injustice suffered by the person. [146] On page 6 of the Report referred to in paragraph 3 above, the 1* Defendant states the trigger of her jurisdiction. It states: The OoO [for Office of Ombudsman] is an independent institution established by the 1994 Republican Constitution of Malawi, [the Constitution] and is complemented by the Ombudsman Act. The OoO has powers under section 123(1) of the Constitution ‘to investigate’ any and all cases where it is alleged that a person has suffered an injustice and there is no remedy available by way of court proceeding or there is no practicable remedy available to that person. 44 [147] On page 6, paragraph 3 of the Report, having referred to section 123(1) of the Constitution and section 5 of the Ombudsman Act, the 1* Defendant continued as follows: The complaint in this case is anonymous. Looking at the two provisions above, the law provides that the Ombudsman can investigate ANY and ALL cases where an allegation has been made and also to investigate ANY complaint laid before the Ombudsman. The law therefore does not prohibit my office from investigating anonymous complaints. [148] The Court agrees with the arguments by the Claimants that to put the constitutional requirement as any allegation of injustice is simply not what section 123(1) of the Constitution provides. That section provides that it must be alleged that a person has suffered injustice. Clearly, any allegation of injustice and alleged that a person has suffered injustice are not synonymous. They cannot and do not mean the same thing. They do not have the same legal consequences. [149] In short, the Court is persuaded that section 123(1) of the Constitution does not envisage just any allegation of injustice. It envisages an injustice that a particular person has suffered for which there is no remedy by way of court proceedings or an appeal or other practicable remedy. [150] In the final analysis, the Court finds and holds that the 1*' Defendant did not demonstrate or satisfy herself that a person had suffered injustice in 45 [151] [152] [153] respect of the recruitment and appointment of the 1‘' Claimant herein, Godfrey Itaye to the 2" Defendant and the secondment of the 2™ Claimant herein, Dr. Benson Tembo to the 2"? Defendant and indeed any of the other Claimants before assuming jurisdiction to investigate the complaint that was laid before her office as required by section 123(1) of the Constitution. Furthermore, as we have seen, the scheme of the Ombudsman Act 1s such that it is the same person who has suffered injustice who must lay a request or complaint before the 1‘! Defendant. No where both in the Constitution and under the Ombudsman Act does it provide that an anonymous person who has suffered no actual loss as it were, may complain to the 1“! Defendant. In assuming jurisdiction to investigate a complaint where no person had suffered injustice, the Ombudsman arrogated to herself powers which the Constitution and the Ombudsman Act did not give her. The 1*' Defendant did not act within her lawful legal authority. She acted beyond her powers. The investigation and the resultant determination and directives that were made cannot stand. They are a nullity. At law, no investigation was actually carried out. This will become clear soon in the subsequent part of the Judgment. There are several challenges that may arise with the approach that the Ombudsman took in this matter where she investigated a complaint from an anonymous person who never suffered injustice. 46 [154] [155] [156] [157] First, section 8(1)(a) of the Ombudsman Act requires that the Ombudsman must notify the person who laid the matter before him or her under section 7(1) or (2) of the outcome of such inquiry or investigation. Where the 1‘ Defendant investigates an allegation of injustice from an anonymous complaint who did not suffer injustice, how would she fulfill this requirement of the law? The Ombudsman cannot pick and choose which sections of the Ombudsman Act he or she will comply with and others that he or she will not. Second, section 8(1)(b)(1) of the Ombudsman Acct is to the effect that the Ombudsman shall after holding any inquiry or investigation in accordance with the Act take appropriate action or steps to call for or require the remedying or reversal of matters or instances specified in section 5 through such means as are fair, proper and effective, including by negotiation and compromise between the parties concerned. If the complainant is an anonymous person, how would the Ombudsman use such means as are fair, proper and effective by negotiation and compromise? For argument’s sake, the 1*' Defendant could not have brokered negotiation and compromise with the 2"! Defendant alone without a known complainant who had suffered injustice at the hands of the 2"! Defendant, if the 1‘ Defendant had decided to invoke his powers under this provision. Third, if the 1*t Defendant had jurisdiction to inquire into or investigate complaints from an anonymous person, it would be possible for the same AT person to file a case with the courts and pursue a remedy there, contrary to the time-honored legal principle, that does not require citation of any authority, that no one person can pursue a claim in the same matter in two different fora. [158] Fourth, if the 1‘' Defendant had jurisdiction to inquire into or investigate complaints from an anonymous person, how would the High Court conducting review proceedings, as is the case now, satisfy itself that indeed the complainant had sufficient interest in the matter at hand and that it indeed did not appear that there was any remedy reasonably available by way of court proceedings or an appeal or other practicable remedy? [159] Fifth, what if the anonymous complaint later turns out to be untrue when the 1*' Defendant has already spent its meager financial resources to carry out an investigation into the matter? How would the complainant be held to account for that? Would that be prudent use of financial resources on the part of the 1*' Defendant? [160] All these issues and questions go to show that it was never the intention of Parliament that the Ombudsman should inquire into or investigate anonymous complaints where a person is not able to demonstrate sufficient interest that he has suffered injustice. 48 [161] There is no doubt that this Court is bound by decisions of the Supreme Court of Appeal and is required to follow them. However, where the Court does not fully subscribe to the position taken by the Supreme Court of Appeal on a particular issue, it is open to it to distinguish and depart from it from the matter that is before it. It is also open to the Court to comment on the Supreme Court of Appeal decision.*! The Court wishes to comment briefly on Zhe State and The Ombudsman ex-parte The Principal Secretary for Finance and 2 others. [162] The first comment to be made about the decision of the Supreme Court of Appeal in The State and The Ombudsman ex-parte The Principal Secretary for Finance and 2 others is that while section 8 of the Ombudsman Act was considered, the full import of subsection (1)(a) thereof was not considered. [163] Second, the Supreme Court of Appeal in 7he State and The Ombudsman ex-parte The Principal Secretary for Finance and 2 others never overruled Air Malawi Ltd -vs- The Ombudsman. In its words, it stated as follows: In passing let us state that we are not unaware of the case of Air Malawi Ltd v The Ombudsman MSCA Civil Appeal No. 1 of 2000 decided on April 17, 2000. We just thought it is not of much relevance in this matter. It is more to do with the question when the Ombudsman should be deemed to have 21 Civil Liberties Committee -vs- Minister of Justice and another [2004] MLR 55 (SCA). 49 decided for purposes of judicial review rather than strictly speaking the Ombudsman’s jurisdiction. [164] As we have seen in paragraphs 138 and 139 above, other than what the Supreme Court of Appeal noted in paragraph 163 above, the Supreme Court of Appeal did also consider the question of the jurisdiction of the Ombudsman in Air Malawi Ltd -vs- The Ombudsman. This means that we have two positions by the Supreme Court of Appeal on the issue of jurisdiction of the Ombudsman. [165] The Court fully appreciates that a Constitution 1s a living document that reflects the history and aspirations of a people and their nation.” It also further appreciates that a Constitution must be interpreted in a broad and expansive fashion that meets emerging challenges or issues and also that promote rule of law and constitutionality.2? However, in this Court’s humble view, that, cannot be done in a manner that disregards the exact language or diction used by Parliament in a Constitution. [166] In that regard, the exact wording of section 123(1) of the Constitution and the whole tenor of the Ombudsman Act, more specifically section 8(1)(a) cannot be wished away. The Court has a solemn duty and responsibility to interpret, protect and enforce them as they are as 22 The Attorney General -vs- Jumbe and another, MSCA Constitutional Appeal No. 29 of 2005 (Unreported). 23 n17 above. 50 required by the Constitution itself“ The Constitution and the Ombudsman Act cannot be denied their effect.*? There should be no legislating from the bench. As Kenyatta Nyirenda, J puts it, “law is law”.?° [167] If the 1*' Defendant needs additional powers to inquire into or investigate anonymous complaints where no person has suffered injustice and it does not want to notify the person who laid the matter for inquiry or investigation before the office, it is open to it to make proposals to the Government for amendment of both the Constitution and_ the Ombudsman Act. That would be a neater way than to urge the Court to go beyond its constitutional mandate and drag it into a province that the Constitution has reserved for the legislature in the name of broad interpretation. [168] In fact, making proposals to the Government for amendment of both the Constitution and the Ombudsman Act would be in sync with other pieces of legislation that are aimed at protecting whistleblowers in order to curb 24 See section 9 of the Constitution. 2° Nippo Corporation -vs- Shire Construction, Civil Cause No. 372 of 2011 (High Court of Malawi) (Principal Registry) (Unreported). 6 See The State (On application of Lin Xiaoxiao, Liu Zhigin, Wang Xia, Tian Hongze, Huang Zinwang, Zheng Zhouyou, Zheng Yourong, Jia Huaxing, Lin Shiling and Lin Tingrong) -and- The Director General-Immigration and Citizenship Services and the Attorney General, Judicial Review Cause No. 19 of 2020 (High Court of Malawi) (Lilongwe District Registry) (Unreported). 51 violation of law, mismanagement of public funds, conflict of interest, abuse of office and corruption.?’ [169] Actually, in order to take care of political sensibilities that Advocate Mr. Wesley Mwafulirwa addressed the Court on, as one justification for the 1* Defendant to investigate anonymous complaints, there is need to have a stand alone and comprehensive legislation on whistleblowers and their protection in the jurisdiction. [170] In view of all the foregoing, this Court is persuaded and follows Air Malawi Ltd -vs- The Ombudsman on the question of jurisdiction of the 1*' Defendant as it aligns with its understanding of section 123(1) of the Constitution and holds that the 1‘ Defendant wrongly assumed jurisdiction to investigate an anonymous complaint made against the 2"4 Defendant in this matter. [171] Furthermore, the Ombudsman did not satisfy herself that a person had suffered injustice and that it did not appear that there was any remedy reasonably available by way of proceedings in a court or by way of appeal from a court or that there was no other practicable remedy as required by section 123(1) of the Constitution. The determination by the 1*' Defendant is therefore set aside and the net effect is that there was no investigation at all. 27 See for instance, section 50 of the Access to Information Act, No. 13 of 2017 and sections 20 and 21 of the Public Officers (Declaration of Assets, Liabilities and Business Interests) Act, Cap. 1:04 of the Laws of Malawi. 52 [172] [173] [174] [175] As correctly argued by Advocate Mr. Patrick Gray Mpaka, rule of law, among other things, requires and demands that all public institutions and bodies perform their duties, functions and responsibilities within the dictates of their governing statutes.?* If they act outside the law, or beyond their mandate, a competent court of law moved would declare t.2? their actions to be invalid and incompetent.~” This therefore disposes of the first issue in this matter. The second issue for consideration by the Court 1s whether the remedies given by the 1‘ Defendant were fair and reasonable in the circumstances. This issue may only be dealt with where a Court finds that the 1“ Defendant had jurisdiction to investigate a complaint laid before its office. Where, like in this case, the Court has concluded that the 1“ Defendant wrongly assumed jurisdiction or had no jurisdiction at all, the issue of fairness and reasonableness of the remedies cannot arise. This Court is fortified in this position by what the Supreme Court of Appeal stated in the case of The State and The Ombudsman ex-parte The 28 See Chilima et al -vs- Mutharika and Electoral Commission, Constitutional Reference No. 1 of 2019 (High Court of Malawi) (Lilongwe District Registry) (Unreported) Judgment of 3“ February, 2020. 2° As above. 53 Principal Secretary for Finance and 2 others.*° It stated as follows on page 7 of the Judgment: Speaking for ourselves a want of jurisdiction meant there was never an inquiry/investigation. That the remedial orders and actions complained of were never at all made. The Respondents, in our humble view, had nothing to [cross] appeal against. [176] The Supreme Court of Appeal further noted as follows: However, looking at this matter in its totality especially its constitutional context, the High Court’s conclusions on the Ombudsman’s jurisdiction, the grounds of appeal and the arguments in this Court it is clear that there are two broad issues requiring this Court’s consideration. On the one had is the matter of the Ombudsman’s jurisdiction. The question being whether or not the Ombudsman had jurisdiction to investigate the complaints before her. Depending largely on the answer to this question the next issue is the propriety of the remedies directed/recommended by the Ombudsman. If we confirm the Court below’s conclusion that the Ombudsman had no jurisdiction there will be no real need for us to consider the propriety of the remedies. The cross appeal will therefore be a nonissue. If, however, we find that the Ombudsman had jurisdiction we shall be obliged to also look at the propriety of the remedies. And therefore, the cross appeal. [177] In view of the foregoing, this Court holds that having found that the 1* Defendant wrongly assumed jurisdiction or that it had no jurisdiction at 30 17 above. 54 all in this matter, there was never any investigation. The remedial orders and actions complained of were never made and therefore it is pointless to consider their fairness and reasonableness in the circumstances. [178] The third issue to be considered by the Court is whether the Public Service Act applies to employees of the 2"? Defendant? [179] Again, in view of the finding of this Court in respect of the first issue, it is no longer necessary to consider this issue. It falls away. [180] The fourth issue is whether the 2°! Defendant’s policy (on recruitment and promotion) as construed by the 1*' Defendant are consistent with sections 4, 12 and 13 of the Public Service Act as read with sections 19 and 22 of the Communications Act? [181] Again, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore unnecessary to consider this issue. It too falls away. [182] The fifth issue for the Court’s consideration is whether the 1*' Defendant misconstrued section 4 of the Public Service Act, misdirected herself and thereby committed an error of law in insisting on the 2"! Defendant’s policy provisions? 55 [183] Again, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore it is unnecessary to consider this issue. It too falls away. [184] The sixth issue for consideration by the Court is whether if the policy is inconsistent with the Public Service Act, whether the 1*' Defendant committed an error of law in relying on the same when making its determinations? [185] Similarly, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore it is unnecessary to consider this issue. It falls away. [186] The seventh issue for consideration by the Court is whether the 1* Defendant’s decisions were constitutional, lawful and reasonable? [187] Again, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore it is unnecessary to consider this issue. It too falls away. [188] The eight issue for consideration before this Court is whether the 1* Defendant had jurisdiction to nullify employment contracts of the Claimants and make consequential subsequent orders that it did? 56 [189] Similarly, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore it is unnecessary to consider this issue. It falls away. [190] The ninth issue for consideration by the Court is whether the 1* Defendant misconstrued the 2" Defendant’s recruitment and promotion policy, misdirected herself and thus committed an error of law and fact in concluding that the 2"? Defendant’s Management erred in opening the post to external candidates? [191] Again, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore unnecessary to consider this issue. It falls away too. [192] The tenth issue for the consideration by the Court is whether the 1* Defendant misdirected itself and committed an error of law in concluding that the interview panel for the 7 Claimant was non- quorate? [193] Again, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore unnecessary to consider this issue. It too falls away. 57 [194] [195] [196] [197] The eleventh issue for consideration by the Court is whether in the event that the directives of the 1° Defendant were unlawful, whether it was lawful and reasonable for the 2"! Defendant to comply with the said directives and orders and implement them as directed? Similarly, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore it is unnecessary to consider this issue as there was nothing to comply with by the 2™ Defendant. It falls away. The twelfth issue for consideration by the Court is whether the Claimants herein were duly informed of the investigations relating to recruitments at the 24 Defendant and whether they were afforded opportunities to make representations on the same? Again, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore it is unnecessary to consider this issue. It too falls away. [198] The thirteenth issue for consideration by the Court is whether in implementing the 1*t Defendant’s directives in the manner it did, the 2™ Defendant acted reasonably considering the letter and spirit of the provisions of the Public Service Act and the Communications Act and the timelines set out in the 1*' Defendant’s Report including timelines relating to the filling up of the positions? 58 [199] Similarly, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore it is unnecessary to consider this issue. It too falls away. [200] The fourteenth issue for the Court to consider is whether the 2"4 Defendant had authority and jurisdiction to re-hear the Claimants on the same matters that had been investigated, heard and determined by the 1“ Defendant, and that consequently, whether such further hearings by the 2™ Defendant would have been lawful, effective, non-contemptuous and enforceable? [201] Again, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore it is unnecessary to consider this issue. It falls away. [202] The fifteenth issue for the Court to consider is whether the Claimants’ application for judicial review alleges and raises claims for unfair dismissal and remedies incidental thereto, thereby taking away the jurisdiction of this Court to entertain such claims as they fall within the ambit and jurisdiction of the Industrial Relations Court, which is the proper forum and as such, such claims must be dismissed with costs? [203] Similarly, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore the issue is a non-issue. It too falls away. 59 [204] The sixteenth issue for the Court to consider is whether the 24 Defendant is the wrongful party to these proceedings in so far as the judicial review herein seeks to review the decision-making process and subsequent directives of the 1*' Defendant made pursuant to the Constitution and the Ombudsman Act as it neither made the said decisions nor the directives complained of, and further nor did it conduct the investigations that led to the decisions made against the Claimants? [205] Again, in view of the finding of this Court in respect of the first issue, there was never any investigation and therefore there was nothing that the 2"! Defendant did that could be a subject of judicial review. However, as argued by Advocate Mr. Robert Kadzakumanja, various matters were consolidated into one and the 2"! Defendant was a party in those other matters, it could not be removed as a party simply because the matters had been consolidated into one. In fact, Advocate Edward Ndayera Dzimphonje also conceded this fact in his arguments. It had to remain as a party. [206] Furthermore, the investigation was carried out at the 2"? Defendant’s institution. It had to be heard in these proceedings in case any adverse order would be made against it by the Court. [207] The seventeenth issue for the consideration by the Court is whether the Claimants are entitled to the reliefs sought? 60 [208] [209] [210] [211] This issue should be answered in the affirmative, the Court having found that the 1** Defendant wrongly assumed jurisdiction to investigate this matter or that it lacked jurisdiction to investigate the anonymous complaint. The Claimants’ claims arise from one event or transaction. That event was the investigation that the 1° Defendant carried out at the 24 Defendant, which the Court has found and declared that there was never one. In addition, all the claims herein were consolidated into one claim. There was also one hearing. This matter has scored a unique distinction of having a consolidation of both claims and a hearing. The finding of the Court that the 1 Defendant wrongly assumed jurisdiction in this matter and that there was therefore no investigation carried out, means that the parties revert to the status that prevailed before the “investigation”. This means that the claimants herein remain employees of the 2™ Defendant. The 2™ Defendant did nothing wrong in law in complying with the determination of the 1*t Defendant. After all, it had two options only. To comply with the 1“ Defendant’s determination or to seek review under section 123(2) of the Constitution .*! 31 See Village Headman Nasosa & His Subjects -vs- Village Headman Mphandauyo II [Suing on his own behalf and on behalf of his subjects] MSCA Civil Appeal Number 58 of 2015 (Unreported). 61 [212] The 2" Defendant opted to comply with the 1 Defendant’s determination. It cannot be faulted for choosing that option. The Court entirely agrees with the argument advanced by Advocate Mr. Benard Ndau that it was not open to the 2" Defendant to disobey the 1* Defendant’s determination. [213] As a matter of fact and law, determinations of the Ombudsman must be respected and complied with at all times by all public authorities, unless and until, they have been stayed by a competent court of law pending review or set aside or quashed or declared a nullity after review.” [214] However, as it has turned out, the 1 Defendant wrongly assumed jurisdiction to investigate the anonymous complaint in this matter. That was not a problem of the 2™ Defendant. The Court therefore agrees with the argument by Advocate Mr. Edward Ndayera Dzimphonje that there is no legal basis upon which liability could be imposed retrospectively for any public authority’s compliance with a then lawful and binding determination. [215] On the authority of State -and- Ombudsman, ex-parte Nyoni this Court is entitled to reconsider the whole matter de novo and determine what would be a more just resolution of the case. 3? As above. See nl7 above. See also, Economic Freedom Fighters -vs- Speaker of National Assembly and others [2016] ZACC 11 where the Constitutional Court of South Africa held that the Public Protector’s directives/recommendations are binding and must be complied with. 62 [216] The Court is of the considered view that the Claimants having remained employees of the 2" Defendant by operation of law, they should be paid all their terminal benefits up to the point when their contracts ended or would have ended. It is so ordered. [217] Payment to the Claimants by the 2"! Defendant should be made within a reasonable time and in any event, not later than 90 days from the date of this Judgment. [218] For some of the claimants who were seconded from other institutions by the Government, it will be up to the 2" Defendant to liaise with those institutions and Government for payment of any terminal dues for the duration they worked in the seconding institutions, if at all. [219] The eighteenth and last issue is on costs. Costs are in the discretion of the Court as is provided by law.*? When the Court decides to make an order on costs, the general rule is that the unsuccessful party pays costs of the successful party.** [220] In these proceedings however, even though the Claimants are successful, the Court does not believe that it would right to condemn the Defendants in costs. The proceedings raised novel issues that the Court has had to 33 Section 30 of the Courts Act, Cap. 3:02 of the Laws of Malawi. 34 Order 31, rule 3 (2) of the Courts (High Court) (Civil Procedure) Rules. 63 grapple with. Unfortunately, law being what it is, some of them fell by the wayside. [221] In addition, the 1** Defendant had a genuine cause to carry out an investigation at the 2™ Defendant. If truth is to be told, the Report actually makes a depressing reading of total disregard for the rule of law, injustice and maladministration at the 2 Defendant. It is just that the Court has not agreed with the manner in which the Ombudsman assumed jurisdiction to carry out the said investigation. This is one sad tale of the end not justifying the means. [222] The 2"! Defendant did nothing wrong in law in complying with the 1* Defendant’s determination. In the final analysis, the Court orders that each of the parties shall bear their own costs. [223] Made in open court this 31* day of January, 2025 at Blantyre, Malawi. ki lasz M. D. MAMBULASA JUDGE 64