Government offices have failed to explain why holders of the offices of the Ombudsman and Law Commissioner receive monthly pay and other benefits from the Malawi Human Rights Commission where they serve as permanent commissioners.
Being part time commissioners, the Ombudsman and the Law Commissioner, apart from receiving salaries and other benefits from these respective offices, also draw monthly pay and benefits from the MHRC.
Some officials who did not want to be named blamed the law for what is seen as double dipping into the public coffers by the two offices since the establishment of MHRC.
The Human Rights Commission Act No 27 of 1998 provides that the Ombudsman and the Law Commissioner are permanent members of the MHRC and are also responsible for facilitating the nomination of appointed members of the commission.
Part 1, Article 7 of the Act which prescribes remuneration for commissioners says, “Members of the commission shall be paid such honorarium for membership and such allowances when discharging their duties as the commission shall reasonably determine, subject to the approval of the Public Appointments Committee of Parliament.”
An honorarium is defined as a payment made without the givers recognising themselves as having any liability or legal obligation. It is ex-gratia payment made to a person for their services in a volunteer capacity or for services for which fees are not traditionally required.
According to Conditions of Service for the MHRC as adopted in 2007 signed by then Public Appointments Committee of Parliament chairperson Joseph Njobvuyalema, part time commissioner pay and other benefits were pegged at about K650 000 a month.
Reads the Conditions of Service in part: “The Committee also agreed on the following salary and benefit packages for the part time chairperson and the part-time commissioners…”
As part time commissioners, the Ombudsman and the Law Commissioner receive on a monthly basis, basic pay K72 000, housing allowance K42 000, mobile phone allowance K14 000, insurance K2 750, sitting allowance K5 000, entertainment allowance K12 000, 600 litres of fuel, electricity allowance K5 000, fixed phone allowance K5 000 and water allowance K3 000.
Two sources close to the commission corroborated that the issue of the two offices being permanent part time commissioners has been controversial and a source of hot debate within the commission.
The sources said apart from drawing two salaries from the same Account Number One, the presence of the Ombudsman and the Law Commissioner as permanent commissioners compromises the independence of the commission.
Said one source: “Since the establishment of the commission, the occupants of the two offices have been receiving monthly pay. In essence, they get two salaries from the same government account.”
“[Another] issue has been that the two offices are the ones that facilitate the nomination of commissioners while at the same time, they sit in the commission as commissioners. This compromises independence because these two officers are very instrumental for a commissioner to be retained at the expiry of their term.”
He said like is the case in other boards, officials from line institutions attend meetings as ex-officio which he said could have been the status of the Ombudsman and the Law Commissioner.
The term “ex-officio” is a common Latin phrase which when literally translated means “from the office.” It should not be used to describe a type of membership in an organisation but rather an obligation or privilege a person has, by virtue of their position, to serve on a board or committee.
“The Act stipulates procedures of removing a commissioner while the Ombudsman and the Law Commissioner ceases to be members of the MHRC once they leave office. So why should they be treated as commissioners?” he said.
Another source said the commission has recommendations from international human rights bodies that pointed at the current status of the two officers in the MHRC as an anomaly.
“The challenge is the Human Rights Commission Act and unless the law is amended, this issue cannot be resolved. There is a need for law reform and the institution to initiate the reform is the same Law Commission. It is a big challenge,” said the commissioner.
Both the Ombudsman Tujilane Chizumila and Law Commissioner Getrude Hiwa on Monday declined to comment on the issue saying it falls under the jurisdiction of the MHRC executive secretary Grace Malera.
Malera explained the two officials receive an honorarium and allowances in line with Section 131 (1) of the Constitution.
“These two officials are, by virtue of holding the offices of Ombudsman and Law Commissioner respectively, commissioners of the Human Right Commission. In this regard, they are entitled to receive such honorarium for membership and such allowances when discharging their duties…as stipulated in Section 7 of the Human Rights Commission Act.
“You will note from this provision and the whole Act that it does not make any distinction as to which of the commissioners is entitled or is not entitled to receive the honoraria and allowances.”
Malera said the law does not refer to the two as ex-officio members of the commission.
“[Government], through the Ministry of Justice and Constitutional Affairs, is currently in the process of reviewing the Human Rights Commission Act. The issue of the membership of the two office holders in the Human Rights Commission is one of the issues under consideration,” she said.
But the Departmnent of Human Resource Management and Development (DHRMD), which is responsible for all the civil servants and public officers on government payroll, said it has made an effort to rectify the “anomaly” of “double salaries”.
“In a memorandum dated 24th January 2014, this department has made recommendations to the Chief Secretary [to the Office of President and Cabinet] on the issue of the double “salaries” (that apply to the ombudsman and the law commissioner) in an effort to rectify this anomaly,” said the department’s spokesperson Rudo Kayira.
OPC public relations officer Arthur Chipenda on Wednesday said the issue could ably be responded to by the commission.
Said Chipenda: “But OPC will critically look into the matter just because as you have rightly stated, it is wrong for a public servant to be getting two salaries from the same consolidated fund.”
Legal expert, law lecturer at Chancellor College Edge Kanyongolo said commissioners have the legal authority to set honoraria and allowances but need Parliament approval through the Public Appointments Committee.
Observed Kanyongolo: “However, the Act does not empower them to set or receive “salaries” or other type of benefits. In any case, no person may receive two salaries from the public purse.”
Asked if there is a legal anomaly, Kanyongolo said: “The law is quite clear and does not create an anomaly. The issue, rather, is whether the law is violated, as would be the case if commissioners set and received salaries or other benefits, as opposed to honoraria and allowances.”
Kanyongolo differed with those suggesting the presence of the Ombudsman and Law Commissioners in the commission compromises its independence arguing that the past performance of the MHRC does not confirm that the other commissioners consider themselves to be subservient.
Malawi Law Society secretary Felicia Kilembe said there is no anomaly in the two commissioners getting benefits that they are legally entitled to.
“Although in the conditions of service it has been described as a salary or pay, that of course could just be a matter of semantics as honorarium can be interchangeable with the word salary depending on the circumstances,” said Kilembe.
She added that while the presence of the two officials on the commission is not problematic, their power over the composition of the commission is a problem.
“These two representatives decide which organisations should submit names of people to be considered for appointment on the commission and it is them again that jointly refer the names to the President for appointment.
“There is therefore a risk that this could compromise the independence of the commission. There is need to review the Act and remove these powers from the ombudsman and the law commissioner,” said Kilembe.