Court drags on MERA CEO case
Fourteen months after giving direction, the High Court of Malawi is yet to move the case on the recruitment of Malawi Energy Regulatory Authority (Mera) chief executive officer Henry Kachaje.
The stagnation of the case comes on the back of the Malawi Supreme Court of Appeal on May 2 2023 directing the High Court to deal with the substantive matters in an expedited manner.
In a written response on Friday, Ombudsman Grace Malera, whose office investigated the recruitment of Kachaje following complaints, said her office was still waiting for the High Court to set the date.
“The current status is that the High Court has yet to set a date for the substantive matter before it to be heard,” she said.
Supreme Court and High Court registrar Kondwani Banda was yet to respond to our inquiry on why the courts have delayed in setting a date to hear the substantive matters as directed by the Malawi Supreme Court of Appeal.
Our attempts to engage Mera’s lawyer Wapona Kita also proved as he was out of reach at the weekend.
A nine-judge panel of the Supreme Court sitting in Lilongwe directed the High Court to expedite the matter in a ruling which dismissed the Ombudsman’s bid to vacate an order that restrained the office from carrying out an inquiry into the legality and procedural correctness in the recruitment of Kachaje.
The order, which was granted to Mera’s first board of directors under the Tonse Alliance administration, further prohibited the Ombudsman from pronouncing any decision of the subject matter until a determination of the matter by the court or a further order of the court.
The Supreme Court ruling followed the Ombudsman’s appeal against a decision of the High Court to dismiss its earlier bid to discharge the order for permission that was granted to Mera to commence judicial review proceedings as well as to discharge the injunction.
Court documents show that in its application made on November 22 2021, the Office of the Ombudsman argued that according to Section 123 (2) of the Constitution, the judicial review sought by Mera was premature and not supported by law.
The argument was against the background that Office of the Ombudsman had not yet released its determination on the hiring saga; hence, Mera could not seek a review at that stage.
But in its submissions to the court, as detailed in court documents, Mera argued that permission to commence judicial review proceedings was properly granted in that the Ombudsman did not have jurisdiction to inquire into the legality or procedural correctness of Kachaje.
The parastatal in its submissions also argued that there was an available remedy through the judicial system to challenge such an appointment if it was done illegally.
Mera also argued that Malera herself was conflicted in the matter as she had also applied for the position, but was not shortlisted.
The Ombudsman was served with the injunction 10 minutes after Malera and officials from her office started presenting findings of an investigative report on Kachaje’s recruitment titled ‘Curbing Impunity’ at a media briefing in Lilongwe on November 10 2021.
The Ombudsman’s investigation into Kachaje’s recruitment was triggered by three separate complaints from Richard Chapweteka, one of the applicants for the post of Mera CEO, who had also been interviewed, the Forum for National Development and Public Appointments Committee of Parliament.
Section 123 of the Constitution gives the Ombudsman powers to investigate any case where it is alleged that a person has suffered an injustice and 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.
