Secretary to the President and Cabinet (SPC) Colleen Zamba says she cannot act on civil servants who are directly engaging in active politics because Parliament is yet to set prescriptions for her office to act.
Her comments come against the background of calls from legal and governance pundits for her office to crack the whip on public and civil servants that have openly been participating in political party primaries ahead of the September 16 General Election.
Zamba said Parliament, as per Section 193 (2), is supposed to prescribe a category of civil servants who, by reason of their seniority, shall not be able to directly participate in political activities.
She said: “In the absence of a prescription by the National Assembly, I do not have the powers to enforce the provisions of Section 193 of the Constitution.
“Once the National Assembly makes the prescription it has been empowered to make since 1994 when the provision came into being, I will easily enforce the restrictions imposed on certain civil servants in accordance with the prescription.”
Zamba further said not all officers report to her office, but their supervisors, as such, she can only act in cases where such supervisors have reported that participation of an officer in political or other activity has interfered with the performance of their duties.
Section 193 (2) of the Constitution stipulates that “the National Assembly may prescribe a category of civil servants, who by reason of their seniority shall not be able to directly participate in political activities”.
But in an interview yesterday, Legal Affairs Committee of Parliament chairperson Albert Mbawala said Section 51 of the Constitution bars people holding public office from standing as members of Parliament.
He said: “Civil servants are holders of public office. Civil servants have also a code of conduct that bars them from active politics unless they resign. They have enough weaponry now to regulate that.
“I suppose she is talking of subsidiary legislation and the power to develop those is in the hands of the Executive. Parliament just checks if it is a good law then approves or proposes amendments.”
Catholic University of Malawi dean of law James Kaphale argued that the sentiments by the SPC are unfortunate, saying she just wants to use the law as a scapegoat.
He said: “We have in the past seen civil servants being dismissed for involving themselves in active politics. However, there has been selective justice on this issue as only those participating in the opposition partisan politics are mostly targeted.
“There are clear legal frameworks and mechanisms in place to tame this and one of them is in the Civil Service Regulations which outlaw public servants to participate in politics.”
On his part, National Advocacy Platform chairperson Benedicto Kondowe said Zamba’s stance is legally and administratively weak.
He said: “The SPC has both the legal mandate and administrative authority to act against officers whose political conduct undermines public trust, and inaction [based] on the excuse of legislative gaps is a dereliction of duty.
“Political neutrality is a core principle of the civil service. Senior officers contesting in party primaries while still in office is a blatant violation of these principles, and action can—and must—be taken.”
While stressing the need for Parliament to fulfill its constitutional obligation under Section 193(3), Kondowe, a private practice lawyer, said this legislative vacuum should not be used as an excuse for inaction.
Meanwhile, Malawi Local Government Association executive director Hadrod Mkandawire has urged officers in the local government service, who have been participating or plan to participate in partisan political activities, to resign.
“We call upon the officers in the local government service who have been participating in partisan political activities, and or intend to do so, to immediately resign from the local government service,” he said in a statement.
Regulation 1:201 (24) of the Malawi Public Service Regulation says a civil servant, who engages in any activity, political or otherwise, which interferes with the due performance of his duties is guilty of misconduct.
