Supreme Court backs Kachaje
Malawi Energy Regulatory Authority (Mera) chief executive officer Henry Kachaje can now breathe a sigh of relief following court dismissal of the Office of the Ombudsman bid to vacate an order validating his employment status.
The Office of Ombudsman appealed against the injunction Mera obtained stopping the release of findings of an investigation into the recruitment of Kachaje.
A leaked copy of the findings nullified Kachaje’s appointment as Mera CEO on the basis that procedures were flouted.
But in its ruling yesterday, a nine-judge panel of the Malawi Supreme Court of Appeal sitting in Lilongwe said it agreed with arguments a d v a n c ed by Mer a that the Office of the Ombudsman application was premature as the High Court of Malawi was yet to hear the full matter following the injunction.
The previous Mera board was granted permission for judicial review on November 10 2021.
Reading the judgement on behalf of the panel, Justice of Appeal Rowland Mbvundula said: “We expect the High Court to deal with this matter expeditiously. The full ruling of this court will be available soon.”
In his submission before the court, lawyer representing Mera, Wapona Kita argued that the appeal was premature because it was based on a decision by the lower court dismissing an application to discharge leave for judicial review.
He also submitted that the appeal was made outside the prescribed 14 days without the permission of the court.
Said Kita: “The law to this day is that you only appeal if the court below has dealt with the whole case.”
Earlier, the High Court also dismissed an application by the Office of the Ombudsman to remove the injunction in December 2021.
In an interview after the ruling, Ombudsman Grace Malera said: “We have noted the court’s ruling and we shall proceed accordingly.”
Registrar of the Supreme Court of Appeal and High Court of Malawi Kondwani Banda was yet to respond to our inquiries on whether there are any specific timelines set to hear the judicial review and why it has been delayed since November 2021.
The Office of the Ombudsman was served with the injunction 10 minutes after Malera and her team started presenting findings of the investigative report titled ‘Curbing Impunity’ at a press briefing in Lilongwe.
In its earlier application, the Office of the Ombudsman argued that the permission for judicial review granted to Mera was irregular and against dictates of the Constitution and also disputed the energy regulatory body’s assertion that the public protector lacks jurisdiction over the matter and that it is against the interests of justice.
But in its submissions to the court, 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 economist Kachaje.
The Ombudsman’s investigation into the matter was ignited 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.
