The High Court sitting in Blantyre yesterday dismissed an application for a judicial review that National Oil Company of Malawi (Nocma) former deputy chief executive officer (DCEO) Helen Buluma made against the Ombudsman’s decision to nullify her employment.
In her September 30 2022 determination, Ombudsman Grace Malera said Buluma’s employment contract with Nocma was as though it was never there in the first place.
Malera said the deal was founded on irregular, unprocedural and unlawful recruitment and appointment processes.
She then ordered the board of Nocma to forfeit payment of any terminal benefits including gratuity for Buluma’s role of DCEO as well as acting CEO to avoid creating a situation where she would benefit from an illegality.
But Buluma applied for the judicial review on the basis that she was not responsible for her own recruitment and accused Malera of victimising a citizen contrary to the mandate of her office, which is there to protect citizens.
She also argued that her employment was an issue within the context of private law, such that it could not fall within the arena of the Ombudsman Act.
But in his ruling on the application, High Court Judge Mike Tembo concluded that Buluma had not provided any legal basis for attacking the “well-taken position” of the Ombudsman in line with her mandate provided for in the Constitution and the Ombudsman Act.
Tembo stated that such position was backed by the Supreme Court of Appeal in a related case where the highest court posited that there are no institutions or decisions that are beyond the reach of the Ombudsman.
“…that includes the employment decision at Nocma herein, so long as there are elements of maladministration amenable to investigation by the putative defendant and no reasonably available remedy in a court of law or by way of appeal thereto.
“In the foregoing circumstances, this court finds that the present case is not fit for consideration at a full hearing. There are no serious issues fit for further investigation at a full hearing on judicial review,” the judge says in his verdict.
By the time we went to press, we had not managed to get a comment from Buluma on the next course of action, if any.
She assumed the position of Nocma DCEO after being appointed by the then-president Peter Mutharika instead of the Nocma Board, according to one of the reasons for the Ombudsman’s inquiry.
Tembo’s ruling states that the Ombudsman got a complaint from a number of persons and, “upon a thorough analysis of the relevant framework for the appointment to the position”, found that it was void.
The Nocma board that was appointed by President Lazarus Chakwera initially ignored the Ombudsman’s recommendation that Buluma’s appointment should be nullified.
For that, the board came under fire from stakeholders such as the Malawi Law Society (MLS), which wondered why the board, which is chaired by the Secretary to the President and Cabinet (SPC), could ignore “legitimate recommendations” of a constitutional body.
In a statement after SPC Colleen Zamba had written Ombudsman Grace Malera that the Nocma board, which she chairs, had decided to retain Zamba, MLS said the decision smacked of significant levels of impunity.
In a dramatic turn of events, Zamba later communicated that the board had fired Buluma after carefully considering the Ombudsman’s recommendations and seeking legal advice on the same.
On the other hand, Buluma indicated that she had already resigned from her position and that she was not aware of the termination of her employment that time.