High Court judge Mike Tembo has nullified the appointment of Brigadier General Charles Kalumo (retired) as Director General of the Department of Immigration and Citizenship Services (Dics).
But the Office of the Attorney General (AG) insists Kalumo must stay put as it seeks a review of the High Court’s order.
The court was moved by an immigration officer, Chikhulupiliro Zidana, who challenged the Immigration boss’s appointment, citing irregularities and unconstitutionality.
Zidana, a 30-year-old officer with over 10 years of experience, filed his application in 2022.
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He claimed that he had the necessary qualifications and experience to hold the position, having graduated with a Bachelor of Laws degree from the University of Malawi in 2022.
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Zidana also based his application on the ground that the decision to appoint Kalumo contravened section 3 of the Immigration Act, which confers the power to appoint the Chief Immigration Officer (Director General) on the Minister of Homeland Security and not on the president as had happened.
“Secondly, the impugned decision contravenes section 3 of the Immigration Act, which provides that the appointment of the Chief Immigration Officer (Director General) be made from the public service.
“Thirdly, the impugned decision contravenes section 29 of the Public Service Act, which provides for a mandatory retirement age of 60 for members of the public service, including those in the Department of Immigration and Citizenship Services,” Zidana argued in his submissions.
In his verdict, Tembo has ruled that the appointment indeed failed to comply with the Constitution and relevant laws.
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Specifically, the judge cited section 89(d) of the Constitution, which requires appointments to be made in accordance with the law.
“The defendant’s [President Lazarus Chakwera] decision of appointing Brigadier General Charles Kalumo (retired) as Director General of the Department of Immigration is non-consequential and of no effect, as it is illegal and unconstitutional,” the order reads.
The court has since ordered that Kalumo should cease holding his position.
It has also ordered the Minister of Homeland Security to consider filling the position of Dics Director General in accordance with the law.
Zidana’s lawyer Gracian Luzu said the ruling is a significant victory for his client and a piece of advice to government on the importance of upholding the rule of law and constitutional requirements in public appointments.
“The case sets a precedent for future challenges to irregular appointments and reinforces the principle of accountability in governance,” Luzu said.
The order by the High Court has come at a time calls continue to mount for Kalumo to resign or be fired for alleged incompetence and maltreatment of workers.
Some Dics officers had planned a hold strikes in all the department’s formations, including airports and border posts, to force Kalumo’s ouster.
However, the strikes failed to take off apparently due to threats by the Ministry of Homeland Security that the planned actions were illegal and that whoever engages in them would be arrested and jailed.
A representative of the officers who have been pushing for Kalumo’s exit, Charles Chisi, has said the officers are thrilled with the court’s decision.
“We are excited that the courts have finally come to our rescue at a time when we had lost hope. We believe that his departure will bring a new lease of life to the Immigration department, which was on its deathbed in terms of service delivery,” Chisi said in an interview yesterday.
Human Rights Defenders Coalition Chairperson Gift Trapence, whose organisation was also pushing for Kalumo’s dismissal, described the court’s decision as an embarrassment to the appointing authority.
“HRDC expects the government to respect the court’s decision and appoint a qualified and professional person to be at the helm of the Immigration department,” Trapence said.
Meanwhile, the Office of the AG says it has moved to challenge the court’s decision on the basis of what it calls “some irregularities”.
The office’s spokesperson Emmanuel Lawyer said AG Thabo Chakaka Nyirenda is seeking a review from the Supreme Court of Appeal.
“We want Justice Tembo’s ruling to be put on hold. Our application is based on a number of grounds including that the judge erred in law by nullifying the appointment of Kalumo without giving him the right to a prior hearing,” Lawyer said.
Earlier, Tembo rejected an oral application by Nyirenda that wanted the court to stay enforcement of the judgement pending appeal.
The judge, however, granted the AG leave to appeal the ruling.
For months now, Dics has been embroiled in controversy, with some quarters accusing Kalumo of failing to properly run the department.
Earlier this year, The Daily Times reported that passport printing at the department had been halted after machines got compromised.
Officials initially dismissed our reports before Chakwera told Parliament days later that “digital mercenaries” had hacked the passport issuance system and were demanding a ransom from government.
