The battle against the removal of Brigadier General Charles Kalumo (Retired) as Immigration chief has finally moved to the Supreme Court of Appeal with hearing set for next month.
This comes almost three months after the same court threw out an application by the embattled former director general to pend the nullification of his contract awaiting an appeal.
The High Court of Malawi nullified Kalumo’s appointment in June last year, arguing the former Malawi Defence Force (MDF) officer was unlawfully recruited by President Lazarus Chakwera.
The court’s verdict followed a judicial review application filed by an Immigration officer Chikhulupiliro Zidana, who queried the procedure of the appointment.
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The President appointed Kalumo in August 2022 in line with the powers of his office under Section 89 of the Constitution and Section Six of the Public Service Act.
In an interview this week, Zidana’s lawyer Gracian Luzu confirmed the Supreme Court of Appeal was set to hear an appeal of the matter following an application by Chakwera.
According to a notice of hearing of the Civil Appeal case number 04 of 2025 signed by the registrar of Malawi Supreme Court of Appeal dated March 28 2025, the appeal case will be heard on May 27 2025 in Blantyre.
In the matter, the President of the Republic of Malawi is the appellant while Zidana is the respondent (defendant). The President is being represented by the Attorney General (AG) Thabo Chakaka-Nyirenda.
“We are set for the hearing… Well, we take the appeal in this matter as an opportunity for development of our jurisprudence. The Supreme Court of Appeal will settle the law on public appointments, especially with regard to the appointment of the director general of the Department of Immigration and Citizenship Services,” stated Luzu.
He said since the State filed an application for appeal immediately after the nullification, nothing much had taken place save for a few procedural developments such as appearing before the registrar of the Supreme Court of Appeal to map the way forward on the matter.
“In the meantime, Brigadier Kalumo (Retired) is not acting as director general. The State President appointed an acting director general [Macloud Kalindang’oma]. Other than that, no other developments took place,” said Luzu.
But he said they were optimistic the court would uphold the judgement of the High Court which, among other points, was to the effect that the duty to appoint the director general rests on the minister responsible (Homeland Security) and not on the State President.
Further, the judge also stated the appointing authorities cannot, without legal justification, appoint to a public office persons who are above mandatory retirement age, and who retired several years ago.
The Attorney General was not available for comment but, in an earlier interview, he maintained that the High Court of Malawi judgement that nullified Kalumo’s appointment had several irregularities, as such, in the interest of justice, the Supreme Court would overturn the lower court’s decision.
High Court Judge Mike Tembo nullified Kalumo’s appointment on June 6 2024, arguing that he was unlawfully recruited.
Delivering his judgement, he described Kalumo’s appointment as inconsequential and ineffectual as “it is illegal and unconstitutional”.
Zidana, then a 30-year-old officer who joined the Immigration Department, in 2012, challenged Kalumo’s appointment, arguing that Chakwera did not follow the law at the time because the appointee had past the mandatory retirement age and that he was also not a member of the public service.
Reads in part the grounds for challenging the appointment: “The impugned decision contravenes Section 3 of the Immigration Act, which provides that the appointment of the chief Immigration officer [director general] be made from the public service.
“The impugned decision contravenes Section 29 of the Public Service Act under which the mandatory retirement age of 60 for members of the public service, including those in the Department of Immigration and Citizenship Services, is provided for.”
Therefore, the judge agreed with Zidana’s submission, arguing the court’s finding of unconstitutionality related to the defendant’s (the President) failure to make appointments as provided in the Constitution or Acts of Parliament as indicated in Section 89 (d) of the Constitution.
In January this year, the Malawi Supreme Court of Appeal dismissed an application by the Attorney General to stay the nullification of Kalumo’s contract awaiting an appeal.
Initially, Chakaka-Nyirenda applied for a stay of execution of the judgment in the High Court, but Tembo declined to grant the order, compelling him to file the application in the Supreme Court.
Deputy Chief Justice Lovemore Chikopa, who heard the application on July 11 2024 as a single Justice of Appeal, argued business at the Department of Immigration should not grind to a halt because of the absence of one person.
However, he observed that substantive matters relate to who can or should appoint the Immigration chief, who can be appointed and the procedure to be followed.
Chikopa further said he was in agreement with the High Court and that interests of justice weighed more towards not granting the stay.
The justice said if the appeal succeeds, Kalumo will go back to his position and resume his functions as by law provided as if nothing ever happened.
