Over the past seven years, former budget director Paul Mphwiyo has been answering Cashgate related charges.
He is still a civil servant but was struck off the payroll and government has not been giving him the due benefits.
Now the Industrial Relations Court has ordered it to pay him all his dues as accrued over the period he has been on suspension but government is contesting the order.
Mphwiyo was interdicted on November 5, 2014 following his arrest in relation to a K2.4 billion corruption case.
He was eventually struck off the payroll and has not been receiving due benefits although he remains a government employee, according to court documents.
Following an application by his lawyers, the court has ordered the government to calculate and pay him all his salary as accrued over the past seven years he has been on suspension.
“The Accountant General and the Secretary for Human Resource Management and Development forthwith calculate and pay all the Applicant’s withheld salary from 5th November, 2014 being the date of interdiction to date when the payment is actually made,” reads the Industrial Relations Court judgement dated 1st September 2021.
The court has further ordered that the withheld salary to be paid should take into account all the increments effected in the years that Mphwiyo was on interdiction without pay.
It has also lifted Mphwiyo’s interdiction without pay.
“The court has ordered Human Resources Management and Development should forthwith reinstate the applicant on government pay roll. The interdiction of the Applicant without pay is unlawful, illegal and amounts to unfair labour practice,” says the judgement.
It has further ordered that Mphwiyo should be paid compensation for the withheld benefits which will be assessed by the court.
According to papers filed by his lawyers, in the period he has been on suspension, he has lost benefits that he was entitled to, namely provision of a car with option to buy, fuel allowance of 250 litres per month and airtime allowance of K20,000 per month.
Spokesperson for the Department of Human Resources and Management spokesperson Kennie Mtonga confirmed receiving the judgment and said Ministry of Justice is handling it.
“I can confirm we have received the judgement but we cannot comment on it because Ministry of Justice is dealing with the matter,” Mtonga said.
Meanwhile, the Office of the Attorney General has obtained a stay order to put aside the default judgement.
“Accordingly, I hereby pray to this honourable court that an order be made setting aside the default judgment herein and that the Respondent be at liberty to file and serve defence,” reads part of Attorney General Thabo Chakaka Nyirenda’s sworn affidavit.
According to the order, which Malawi News has seen, hearing of the injunction is expected to take place on October 4.
The contention over interdiction without pay came to the fore early this year amid government’s crackdown over the suspected abuse of K6.2 billion.
Amid the arrests, President Lazarus Chakwera ordered Secretary to the Cabinet Zangazanga Chikhosi to interdict public officers involved in the abuse without pay.
But Chikosa Silungwe, who was Attorney General, had earlier advised the government against suspending people without pay.
He said interdicted government officials were entitled to full salaries.
In a memo dated February 4, 2020 and copied to the Accountant General, the former chief government legal advisor had said “regardless of the circumstances that led to the interdiction of the officers, interdiction without pay is illegal”.
He said his office had received communication from “various law firms representing public officers who are on interdiction without pay”.
On the current order in favour of Mphwiyo, Executive Director of Centre for Social Accountability and Transparency (Csat) Willy Kambwandira described the judgment as a bad lesson for government and a huge setback in the fight against plunder of public resources and corruption.
“This is a clear demonstration of negligence of duty on the side of government for failing to challenge the matter in court. It is high time that we placed personal accountability on individual public officers not institutions. There are people who failed to perform their duty on this matter. But all the same, court determinations must be respected,” Kambwandira said.
In 2014, government interdicted Mphwiyo following his arrest for being suspected to have played a part in the 2013 cashgate scandal at Capital Hill in which billions of kwacha were looted.
On September 13, 2013, Mphwiyo was shot three times by unknown thugs at his Area 43 residence in Lilongwe and was flown to South Africa for surgical treatment.
His shooting opened a wave of revelations of the plundering of taxpayer’s money at the seat of government, with some civil servants being caught with cash stashed in car boots and homes.
Mphwiyo is currently on bail facing theft and money laundering charges.