New AG says no pay for interdicted staff

 Attorney General (AG) Thabo Chakaka Nyirenda says it does not make sense to continue paying officers suspended for alleged abuse of public funds because they are not working.

Speaking yesterday in Lilongwe during the newly introduced weekly press briefing at the Central Office of Information (COI) where government officials will be taking turns to give updates to the media every week, he said public servants are paid for working and not just filling positions. He said it is for this reason that those interdicted on criminal charges relating to theft of public funds do not deserve pay.

Nyirenda’s position sharply contradicts that of his immediate predecessor Chikosa Silungwe who described interdiction without pay as illegal.

In the letter dated February 4 2021, Silungwe said public officers should not be denied their pay regardless of the circumstances that led to their interdiction, stressing that doing so is illegal.

Regulation 40(1)(a) of the Malawi Public Service Regulations states that where an employee in the government is interdicted on grounds of misappropriation of public funds, their pay be withheld.

Yesterday, Nyirenda said the regulations were designed to avoid a case where someone is getting paid for rendering no service.

He said: “This does not mean we are presuming that these suspects are guilty and this is why they are not fired, but just on interdiction and the law deliberately provides that once they are exonerated ,they are put back on payroll.

“We need to change our mindsets and indeed the law must be able to solve socio-economic problems and not creating them.

“Think of someone who gets K100 000 a month and spends K30 000 on transport and food as they go to work and then someone gets the whole amount without working for it? It is really absurd and it is this attitude that makes us poor. This does not happen elsewhere.”

In April this year, President Lazarus Chakwera drew public wrath after directing the Secretary to President and Cabinet (SPC) to interdict without pay all public officials suspected of misappropriating Covid-19 funds.

Malawi Law Society (MLS) issued a statement warning the President that his order had the potential to expose the public purse to future indefensible claims under existing labour laws.

In an interview yesterday, MLS president Patrick Mpaka said the society’s position has not changed on interdiction without pay, arguing that this question was well sorted by the High Court of Malawi.

He was referring to civil cause number 254 of 2016 between Dr Gift Sten Chinomba (petitioner) and the AG (defendant) on Chinomba’s interdiction from public office on no pay as part of a disciplinary process.

In his ruling on the matter, High Court Judge Mike Tembo said it was wrong to withhold pay of officers on interdiction.

The judge stated that although Chinomba was interdicted for suspected misappropriation of public funds, interdiction on no pay is in contravention of the statutory provisions on discipline as contained in Section 56(3) and (4) of the Employment Act.

In an earlier interview, labour law expert Mauya Msuku also argued against no pay for interdicted officers, saying monetary punishments by employers are prohibited.

He said: “An interdiction is based on an allegation and it is wrong to punish someone before they are proven guilty. When you suspend someone, withholding their money is punishment and the law does not allow monetary punishments.”

In a telephone interview yesterday, University of Malawi law professor Garton Kamchezera said the AG’s position on this matter was within his mandate where he has to advise government accordingly.

He said that there is nothing wrong in having the AG holding a different opinion from the earlier position of his office or against many others who are looking at the issue differently, saying this approach reflects some new thinking.

Kamchedzera said: “There are some lawyers who look at the law as a source of problem. There are also lawyers who look at the law as a source of administration of how things should be and others look at the law as a source of solution and I think the AG is in the last category.

“He may have read the Constitution and the policy direction of the new government and where he feels that the law is wrong or the understanding of the law is wrong, it is within his ambit to make an interpretation that solves a problem and not creating problems.”

Last month, the Industrial Relations Court (IRC) set aside a default judgement in favour of former Ministry of Finance budget director Paul Mphwiyo who is claiming payment of his salaries since 2014 when he was interdicted and removed from payroll.

Put to him about the various positions faulting his decision, Nyirenda, in an interview, said he was aware of all legal opinions as well as the High Court judgement, but insisted that it is absurd to have someone paid without working.

He said: “The same Employment Act allows an employee who is sick for some time to be removed from the payroll because they are not working. Here is someone who has done no wrong, but is removed from payroll and then we maintain someone who has stolen public funds who is also not working, does this really make sense