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The former Attorney General advised Government that interdicting public officers without pay is illegal

Attorney General Chakaka NyirendaAttorney General Chakaka Nyirenda

On 3rd August 2021, the Applicant commenced proceedings against the government claiming damages for unfair labour practices (withheld/unpaid salaries and withheld benefits).

To begin with, Mpwhiyo was first employed by government on 31st August 1998 as a civil servant. Over the years, he rose through the ranks up within the civil service until he became a Budget Director for the Government. On 31st October 2013, during Joyce Banda administration, he was posted to the Office of President and Cabinet (OPC) as a Budget Analyst (with Grade D/P2 salary scale). His salary was about K800,000 per month plus other benefits which include fuel allowance of 250 litres per month and airtime allowance of K20,000 per month.

On 5th November 2014, the government interdicted Mphwiyo without pay. He was interdicted from employment after he was charged with offences relating to theft and plunder of government money amounting to K2.4 billion in a fiscal scam that has been christened “Cashgate”. He was charged, in the High Court, with several criminal offences including theft by public servant, fraud and money laundering.

Following this interdiction, Mphwiyo was removed from the government payroll and has not been receiving remunerations since then.

The interdiction, however, does not entail termination of employment. This, therefore, means despite the interdiction, he still remains an employee of the government amenable to firing after conviction by the Court at the conclusion of his case. When his criminal charges that informed his interdiction are concluded by the Courts and is cleared of those charges, he stands free to claim his withheld remunerations and revert to employment. Meanwhile, his case is still in Court and his interdiction is still in force.

On 12th August 2020, the former Attorney General, Dr. Chikosa Moses Silungwe, advised Government that interdiction of public officers without pay is illegal. Following this advice, Mphwiyo organised his lawyers to start claims of his withheld remunerations. Through his lawyers, Mphwiyo is contending that interdiction without pay is unlawful, unfair and without any legal backing under the Constitution and written laws of Malawi.

In carrying out this mission, Mphwiyo’s lawyers proceeded with the Court applicant without serving the Attorney General a legally imposed mandatory three-months’ notice before commencing proceedings against the government. The three-months’ notice, in cases involving the Government and public officers in their capacity as such, is the requirement of the law under section 4 of Civil Procedure (Suits by or Against the Government and Public Officers) Act (cap. 6:01) of the Laws of Malawi.

The Attorney General has since filed an application for an Order of Stay of the execution of the default judgement pending hearing of the application. See the application here AND here.

Owing to the Applicant’s failure to give the required three-month notice, the Attorney General contends that he was unable to seek instructions from the relevant ministries to defend the claim. Facts submitted in sworn statements indicate that the Applicant’s notice was served on the Attorney General on the 4th day of August 2021. Immediately, the Attorney General embarked on seeking instructions and information from the relevant ministries and departments including the Ministry of Finance, the Secretary to the President and Cabinet, the Director of Public prosecutions, the Anti-Corruption Bureau and the Malawi Police Service.

While waiting for the said instructions and information, and before the mandatory three months could elapse, the Applicant proceeded to enter a default judgement application. The Industrial Relations Court (IRC) granted the default judgement on 3rd September 2021, ordering Government to pay Mphwiyo his withheld remunerations and other benefits.

Meanwhile, the office of the Attorney General has now been furnished with the instructions and information that it requested from the relevant ministries and departments. The AG has since submitted that he believes the government has defence on merits against the Applicant’s claim.

The Attorney General submits that the default judgement that awarded Mphwiyo his claim is irregular on the basis that Mphwiyo made the application without complying with the said section 4 of Civil Procedure (Suits by or Against the Government and Public Officers) Act which demands a mandatory notice period of three months before commencing such an action that resulted into this default judgement against the Government.

The Attorney General further submits that Mphwiyo’s claim has no merit since his interdiction was in line with the Malawi Public Service Commission Regulations (MPSCRs) that empowers government to interdict without pay civil servants who have been charged with criminal offences before competent Courts of law as the case was with Mphwiyo. MPSCRs constitutes conditions of service of the employment of civil servant in Malawi Government.

On 8th September 2021, on application by the Attorney General, the Court granted a Stay Order against the execution of the default judgement that was obtained by Mphwiyo. The Stay Order which was prayed for by the Attorney General Nyirenda as he applied for a hearing to set aside the default judgement reads as follows. See the Stay Order Here.


Author: LordDenning QB

Editor: Innocent Marshal


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