Kalumo’s decisions, entitlements intact—lawyers
Legal experts have said decisions Brigadier General Charles Kalumo (Retired) made as director general of the Department of Immigration and Citizenship Services are binding regardless of the nullification of his appointment.
The lawyers Weekend Nation spoke to yesterday following the High Court of Malawi’s decision, also said Kalumo is entitled to his privileges as stipulated in the conditions of service unless a court of law makes a fresh order.
The High Court in Blantyre nullified Kalumo’s appointment on Thursday due to what Judge Mike Tembo said was “an unlawful recruitment”.
The court’s verdict on a 2022 judicial review application by immigration officer Chikhulupiliro Zidana came on the day some concerned Immigration staff wanted to hold protests to push for Kalumo’s ouster for alleged maladministration.
In his ruling delivered virtually, the judge described Kalumo’s appointment as inconsequential and ineffectual as “it is illegal and unconstitutional”.
Following the court’s decision, tongues have been wagging regarding Kalumo’s entitlements and decisions he made at the department, including dismissals and transfers of some key personnel.
In an interview, Gracian Luzu, one of the lawyers representing Zidana explained that the court made a decision on a particular issue as such all other decisions Kalumo made remain intact.
“The court made no order on that. So, it means those decisions have not been invalidated,” he said.
In his opinion, private practice lawyer Davis Njobvu said the courts are usually taken to decide the matters that have been brought before them.
“So, in this particular case, the ruling of Justice Tembo was concerned with the legality of the appointment of the Immigration director general. That is what was brought before the court, and not anything else.”
Said Njobvu: “It is not the first time the courts have made those kinds of orders. If you go back in judiciary history, there will be a number of similar scenarios and, generally, it does not affect anything else like remuneration.”
Three other lawyers, who opted for anonymity due to their positions also agreed with Luzu and Njobvu, arguing that Judge Tembo’s ruling was based on a particular application.
“But, as a precautionary measure, government can start taking stock of itself on other decisions it made which are bordering on such issues which have been affected or have a bearing on the ruling.
“It does not mean if one principal secretary, for example, was also appointed from retirement and then this ruling has also nullified his appointment, unless there is another application or determination,” explained the legal expert.
President Lazarus Chakwera, in pursuant of the powers of his office under Section 89 of the Constitution and Section 6 of the Public Service Act, appointed Kalumo in August 2022.
But Zidana, through lawyers from Ritz Attorneys at Law, challenged the appointment arguing that the President did not follow the law at the time because Kalumo had passed mandatory retirement age.
The 32-year-old former president of law students at University of Malawi, who joined the Immigration Department in 2012, also argued that the appointee was not a member of the public service.
