High Court Judge Mandala Mambulasa has ruled that the then Ombudsman Martha Chizuma, abused her powers when she decided to investigate an issue from an anonymous whistle-blower and subsequently pass judgement against the then Malawi Communications Regulatory Authority (Macra) director generals (DGs) Godfrey Itaye.
The anonymous person complained that there was nepotism, cronyism, tribalism and abuse of office in the recruitment of the Itaye at Macra. His recruitment process was nullified by the Ombudsman, which prompted Itaye and 15 others to apply for a judicial review.
Patrick Mpaka, lawyer for Itaye argued that there must always be a person who has suffered injustice who lays a request or complaint adding that knowing the person who moved the Ombudsman and the interests of that person and whether the person suffered injustice, is fundamental to the right to be heard by the person with sufficient interest over the determination.
Further, Mpaka argued that it is not for the Ombudsman to declare nullity any actions by any authority based on a complaint before that office but 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.
“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 right to be heard by the person with sufficient interest over the determination,” he is quoted in the judgement
Mpaka further argued that the Ombudsman report compromised the fundamental aspect of the right to be heard by the claimants in that without identifying any person that lodged a complaint before her, Chizuma proceeded to make adverse findings and declarations.
He also argued that 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.
“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 Ombudsman nullified the claimants’ employment contracts. This was clearly in excess of the jurisdiction of the Ombudsman under both the Constitution and the Ombudsman Act,” he argued
He also said that Macra could not, at law, simply adopt the Ombudsman report and proceed to discharge the claimants without due process.
Although counsel for Macra, Wesley Mwafulirwa 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 is required to observe and uphold the Constitution and the rule of law and that no institution or person shall stand above the law, he 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.
“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,” he said
In his judgement, Mambulasa noted that Chizuma did not demonstrate or satisfy herself that a person had suffered injustice in respect of the recruitment and appointment of the complainants 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 is such that it is the same person who has suffered injustice who must lay a request or complaint before the Ombudsman. 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 1st 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 Ombudsman 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. 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 Ombudsman 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.
“If the Ombudsman 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?
“What if the anonymous complaint later turns out to be untrue when the Ombudsman 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 Ombudsman?
“If the Ombudsman 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
“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 whistle-blowers in order to curb violation of law, mismanagement of public funds, conflict of interest, abuse of office and corruption,” reads part of the ruling.
He further said , 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 their actions to be invalid and incompetent,” he noted
