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Friday, June 14, 2024

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    Legal experts in the country continue to weigh in on revelations that former Reserve Bank of Malawi Governor Dalitso Kabambe has been earning a salary from government for three years despite not reporting for work.

    The Presidential aspirant from the Democratic Progressive Party (DPP) has been faulted for crookedness in a labour issue that taints his ambitions ahead of the party’s elective convention and the national polls in 2025.

    Below is a legal opinion from the Queens Bench, an authoritative legal think tank that has become a trusted source for Malawians via a number of correct assertions and learned predictions on subject matters.

    The Queens Bench notes that one of the DPP presidential candidacy aspirants, Dr. Dalitso Kabambe (DK), is contemplating (or is he in the process already?) of suing Government for what he alleges to be unfair labor practice. He is of the view that he was “unceremoniously relieved of his role as Reserve Bank (RBM) Governor” whatever that means. The Queens Bench seeks to address this and highlight the lack of integrity therein, rendering him unfit for the political aspirations in view of the particular office that he seeks to bid for.

    To begin with, DK was initially working as a PS in the Ministry of Foreign Affairs and International Cooperation (as it was then called). Around April 2017 (during the DPP rule) he was seconded to RBM to work as its Governor. He signed a 5-year contract and took office on 21st April 2017. Please, take note of these dates because they are very important to the main issue in his purported claim.

    DK is contending ‘unfair dismissal and unfair labour practices’. He is making a general reference to RBM Act 2018 saying the alleged ‘unfair dismissal and unfair labour practices’ are against this Act. He is claiming about K2.4 billion as a result. We now need to look at that Act, starting with a little discussion on section 12(1-3) . The provision is coached in the following terms:

    (1) The Governor and the Deputy Governor shall each be and appointed by the President, by instrument in writing, for a term of five years.

    (2) Upon the expiration of the term for which they are appointed both the Governor and the Deputy Governor shall be eligible for reappointment.

    (3) The Governor and Deputy Governor shall be . . . appointed on such terms and conditions . . . which terms and conditions shall not be altered to the disadvantage of the Governor or Deputy Governor during the term for which they are appointed.

    That is the relevant law contained in the Act which he is positioned to rely in asserting his claims. Just in case the reading of the law cited above does not offer immediately clear meaning, allow me to offer an interpretation of the same as I hereby do:

    What section 12(1) imports is that once an individual has been appointed Governor, he/she is ordinarily entitled to hold that office for a period of 5 years. And section 12(2), states that upon expiration of the 5-year term, that person SHALL be ELIGIBLE for reappointment. This simply means that whoever was holding that position prior is STILL QUALIFIED for another appointment and not that he is AUTOMATICALLY reappointed.

    For avoidance of doubt, the said section 12(2) does not import the automatic reappointment of a Governor and the Deputy Governor. Per section 12(1) One can only be appointed by the President and for a period of 5 years. And according to section 12(3), the terms of service applicable at the time of appointment shall remain the same for the remainder of the Governor’s tenure, or the very least, cannot be altered to his/her disadvantage.

    And Kabambe’s claim bungles up all issues under this provision. First, it has to be understood that the DPP administration then appears to have negotiated a mafia deal with DK (in my view). He was getting an unusually and unjustified huge amount of money for such a government institution.

    In line with section 12(1) of the RBM Act, his 5-year contract ran up until 2022, upon which he would still have been eligible for reappointment by the president, and NOT automatic reappointment by virtual of completing his first 5-year term. This is to say if there was any talk about unfair dismissal or contract renegotiations, the same should have been confined to the executed contract running up to 2022.

    It is a fact that RBM had not yet entered into a contract of employment with Kabambe for the 2022-2028 period for him to make any claims stretched to that period. I am made to estimate that his claim is undoubtedly inspired by his belief that his mafia synergies will have it. A totally misguided calculation if you ask me.

    Perhaps before Kabambe even celebrates that he is entitled to a claim running up to 2022, here is the bad news for him: The fact remains that Kabambe’s appointment was, but a secondment from civil service. Now, the Malawi Public Service Administration Circular No 15 Ref No PD/4/1/7E/VI/8 provides that the maximum period for secondment of any civil servant should be 36 months (and that translates into 3 years). As long as he was seconded to the Reserve Bank from the Civil Service and his employment remained as such, the 5-year contract may be said to have been signed irregularly hence void from the word go.

    Since following his secondment to the Reserve Bank as a Governor Kabambe did not resign as civil servant, it works to reinforce the fact that he remained a civil servant under and/or governed by normal terms of secondment. And guess what?

    Under the conditions of employment governing the civil service, the government reserves the right to recall anyone from secondment at any time before the expiry of six months. That is to say if Kabambe’s secondment took another fresh 36 months from 2020 when his period expired, assuming that was regular to begin with, then the government remain entitled to recall him any time as it eventually did immediately when administration guard changed from DPP to MCP (call it Tonse if you like). Yes, he was recalled only that he refused to go back to the civil service – and that looks like his own funeral.

    Now, Kabambe claims that he was “unfairly dismissed” and wants compensation for the same. On the facts of the case, he was not dismissed from employment. De-secondment, which he denied to comply with, is not dismissal. And that is why Government was still obliged to continue paying him salary as it did.

    Since Kabambe was only seconded, he was governed by Malawi Public Service Regulations and that the Reserve Bank Act of Malawi did not apply on his de-secondment. The terms and conditions of contract termination cannot, therefore, be derived from the Act which is not applying to his de-secondment.

    So, what is the issue here?

    By suing for employment benefits under the “2022- 2028 contract”, a contract he was never offered, never agreed to and never performed any sort of obligation under it, Kabambe is claiming money he was never entitled to in the first place. And that doesn’t look like an appropriate behaviour of someone seeking the public office of the presidency which calls for highest levels of integrity.

    This extra mile is his claim for a further K 1, 814, 581, 389.20 under the “2022-2028 employment contract”, a contract that was never agreed with him and has not yet performed any obligation under it. With this act, he is officially on a mission to take something that does not in any way belong to him.

    On the premise, the Queens Bench, therefore holds the strong opinion that this man does not deserve any place near public office again. Let us not even begin to discuss the office of the president together with his name therefore. Thank you.

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