Thursday, 7 August 2014


By: Sunduzwayo Madise

When a judge delivers a judgement, he gives reasons for his decision and then says other things by the way (mang’ombe). In Legalese the reason or the rationale for the decision is called ratio decidendi (commonly referred to as ratio). It is a Latin word, nothing much to it. It is possible to have more than one reason for the decision (and this can sometimes be confusing as to which reason exactly is ‘the dominant reason’). It is also possible sometimes to read a whole judgement and fail to pinpoint a ratio or the exact ratio for the decision. Simply put, where you have a judgement without a ratio, it reflects on the judge making the decision. The Judge will also say other things by the way, in the same way that when telling a story you usually do not go straight to the point, you lay out the foundation, bring out permutations etc. These things said by the way are called obiter dicta (or just obiter). Now when we say a particular case is an authority for a certain proposition of law, what we mean is that it is the ratio in that case that is the authority, not the whole case or what is contained in the judgement or how it affected the parties in that case.

In Jessie Kabwila v Electoral Commission,[1] Justice Mwaungulu held that the Electoral Commission had erred to reject Dr Kabwila’s candidature because there was evidence that she was on leave of absence. The Judge’s reasoning (the ratio) was that “there was no need, even though she was in public office, for her to resign because, at the time of submission of her papers, she was not holding or acting in the public office, her contract, based on the conditions of service of the contract, being terminated by the kind of leave of absence allowed by her employer.”[2] In other words the principle in Kabwila (what the case stands for) is that a person who is on leave of absence cannot be disqualified from standing for elected office as a member of parliament because she is not deemed as holding or acting in a public office.
But then the Judge went on to say other things which were not the basis for his reasoning to decide the case. For example the Judge went on to say that “academic staff in public universities is in civil service and in public office.”[3] In other words the Judge was saying in his view, lecturers in public universities are civil servants as well as public servants. Now I have already expressed my reservation against this view and strongly feel that the Court erred here – see ‘Case note: [Dr] Jessie Kabwila v Electoral Commission’.[4]  Let me just illustrate how this view leads to an untenable conclusion. The Judge argues that academic staff are civil servants. But what about non-academic staff? What about the principals of the colleges? What about the vice chancellor and his deputies? Trying to isolate staff in this manner leads to an absurdity and just shows that the initial view is erroneous. However this article is not to reopen this debate, in my view the debate is one for another day. What is important however to recall in all this is that the issue about Dr Kabwila or academic staff[sic] being civil servants was not the one which decided the outcome of the case. All this was obiter. What decided the case, at the fear of being repetitive, was the fact that a person who is on leave of absence is not deemed an employee so as to debar that person from contesting the elections. It is likely that in future other judges may extend this ratio to apply outside electoral matters. The Judge also made an interesting observation, extending his obiter and said “[m]oreover, as a Civil Servant whose functions are not directly concerned with the formulation and administration of the policies of government, she is exempted from resigning in order to participate directly in political activities.”[5]
In other words the Judge is saying
  1. Dr Kabwila is a civil servant and a public servant. However even though she is a civil servant she does not have to resign to contest in a parliamentary seat because she is exempt because of the nature of her duties (does not directly deal with formulation and administration of policies of government).
  2. However, notwithstanding the above view, Dr Kabwila at the time of lodging her nomination papers was on leave of absence. Since she was on leave of absence, she was no longer an employee of the University and therefore not holding public office.
  3. Therefore Dr Kabwila was wrongly disquieted because she was on leave of absence.
It is therefore clear that if the question before the court was of a person who was not on leave of absence, then the issue of being a civil or public servant or not would have been the main issue for the court to decide. However in this case it was not. The main issue was whether a person (working for a public institution) who proceeds on leave of absence qualifies to stand as an MP. And the answer to that was in the affirmative.
So I hope it is now clear what the case of Kabwila in law stands for and what it does not. Just for clarity, Kabwila is not authority for the proposition that public officers are civil servants.

Recently Government announced that 3 members of the Malawi Broadcasting Corporation (MBC) were to be transferred to Government ministries in various capacities.[6] Now MBC is a statutory body (parastatal) created under a statutory instrument (Communications Act which repealed the MBC Act and reconstituted MBC as a statutory body in Part IX). There has been debate around these transfers with others saying it is justified because some of them did not deserve to have been promoted at MBC in the first place. I take no sides on this debate and I only write as a person who has extensive experience in labour and industrial relations. However it would be naïve for me to pretend to be blind to the fact that MBC staff have been used as political pawns or balls in a game of political ping-pong. One would hope that others not only at MBC but in the public service would have learnt from all this. Sadly no, it will not be. What ‘government’ seems to forget however, is that it is not the Attorney General who gets sued when MBC staff are ‘fired’ but MBC itself. And the recent pay-off to Bright Malopa is still fresh in the mind.[7] Now granted, some of the staff at MBC are willing victims. Others actually thrive on politics. How sad, especially when it involves a public mouthpiece. However even in the midst of all this mist, there is still need to ensure that labour rights are respected. Arguing that person such-such should not have been appointed or promoted in the first place does not nullify his labour rights should you decide to terminate his services or treat him unfairly.  However the debate about freeing the public broadcaster and making it truly independent has been made and it behoves on the powers that be to walk the talk they made. Once again this view is in no way a reflection or otherwise on the 3 employees concerned. My interest in their case if purely from an employment law and industrial relations perspective.

One thing bothers me about MBC though. How are people recruited in this organisation? It seems people do not apply for jobs but just get appointed, and usually by government? How is this possible? Let us recall how a statutory body like MBC is structured. Junior and some senior staff are recruited by Management. The management itself is recruited by the Board. The Board is appointed by the President as head of government. Therefore any control that government wishes to exert on MBC must be through the Board. It is the Board that makes decisions in its meetings. Any decision therefore to recruit anyone not made by the board or management is ultra vires and void ab initio. It is outside the powers of anyone outside MBC to appoint or fire an employee of MBC. That decision at law is treated as if it was never made in the first place, void ab initio. If MBC however ‘embraces’ this unlawful decision, the result are the many lawsuits that we have seen at MBC. What a sad state of affairs.

In the first place employees of MBC are not civil servants. Oh yes someone may wish to extend the Mwaungulu obiter in Kabwila to argue that if the Judge said lecturers of public universities are civil servants, then the same applies to broadcasters from the public broadcaster. That is what I term Misreading Kabwila. MBC employees may be public servants but they are not civil servants. They are recruited under terms of employment of MBC, a statutory body which has a Board of Directors. It is of no consequence that MBC is a statutory body set up by government. I am sure that there is a reason why a person applies to work at MBC and not at Ministry of Information or indeed any other organisation and vice versa.

Section 31 of the Constitution provides for the right to fair labour practices. In Kalinda v Limbe Leaf Tobacco Company Limited[8] the Court emphasised that Section 31 of the Constitution is a fundamental law, a general law. The Labour Relations Act 1996 and the Employment Act 2000 are therefore pieces of legislations that may be said to operationalise the right to fair labour practices provided in section 31 of the Constitution.

Under the Employment Act 2000, every employer is required to give to each employee a written statement of particulars of employment.[9] We call this a contract of employment. This means every employee enters into a specific contract of employment with his employer. This includes such important details as remuneration, allowances, hours of work, leave days, benefits etc.[10] It also means that the contract cannot just be terminated willy-nilly. Sections 28, 29, 57 and 58 of the Employment Act provide for terminations that are lawful otherwise the termination is deemed unlawful.

However the law does envisage that there may be instances where instead of terminating the contract, the contract can just be transferred. Section 32(1) provides that “no contract of employment shall be transferred from one employer to another without the consent of the employee.” Therefore consent of the employee is paramount in a transfer of a contract of employment. The only time when the employee’s consent does not have to be obtained is when there has been what is technically referred to as a merger and acquisition or a transfer of a business[11] or during insolvency or winding-up.[12]

So let us come back to the case of the 3 MBC employees who have been transferred to Government Ministries and Departments. Looking at the law, unless these employees were consulted prior to their transfers and they did consent to the transfer, such transfer offends the law and amounts to unfair labour practices. In fact what it means is that MBC as the employer has unilaterally terminated the contract of employment. And unless MBC can satisfy section 28, 29 and 57 of the Employment Act, the termination is bound to be held to be unfair under section 58. The said employees can also claim that they have been constructively dismissed.[13] This demonstrates a worrying a mentality by ‘government’ of treating all public employees as if they are civil servants; misreading Kabwila. But then who is this ‘government’? No one should lie to us that government is one big machine that makes these decisions. No these decisions are made by flesh and blood, people like you and me. There are certain people who clothe themselves as government who make these decisions. But unveil the cloth and you unmask the decision makers. These are the ones I am worried about. And it would seem that either these people have been there for the past 20 years or have passed on their tradecraft to their successors. One may be inclined to blame politicians in all this, but the reality is that usually the politician may just express a view which the willing civil servant grabs with both hands and executes as a command with the utmost zeal! The Vice President and his team tasked in reforming the civil service have a lot of work to turn around this mentality. I assert that the true puppeteers are not even the politicians.

The first thing of course is that the employees should have been consulted and their consent sought. It is noteworthy to state that refusal to transfer cannot be a ground for dismissal. Such a dismissal would be unfair. From the articles that came out in the papers, this seems not to have occurred. The impression given is one of a government directive. It is a directive but is it legal? Is it valid under the law? Can it stand judicial scrutiny? Is the government not under section 5 of the Constitution supposed to ensure all its acts are valid and in consonant with the law? What happened to rule of the law? Should there be selective application of the rule of law doctrine?

The other more open option is what is termed as secondment. This happens all the time, employees from parastatals and the private sector go on secondment usually to head government departments or ministries. During the pre-1994 Constitution era, it was also common to have civil servants being seconded to head troubled parastatals.

However what has happened at MBC is just a reminder. These things have been happening for a long time. We have heard of cases where CEOs of parastatals are rotated. Clearly this cannot be right unless the person concerned consents to this ‘rotation’. In other words it cannot be at the whim of politicians or those calling the shots at statutory corporations or in government. If a person X applies to be CEO of organisation Y, there may be reasons why he did not apply for organisation T.

Do we all remember how one Justice Mwaungulu was transferred to become a lecturer of the University of Malawi? Luckily the transferring authority met their match in this case and the transfer died its natural death! But it should not have been made in the first place! We seem never to learn our lessons as a country. Einstein said the definition of madness is doing the same thing over and over again but expecting different results? Well are we not all collectively mad then?

The title of this piece deliberately starts with the phrase Misreading Kabwila. Of course I do not for one second attribute the action of government (now or in the past 20 years) to misreading the decision in Kabwila, after all this decision was made just a couple of months ago. I use the phrase as a metaphor to emphasise a point and underscore my objection to playing around with people’s livelihoods in order to satisfy the itches and inclinings of political masters.

By why has this been tolerated or tacitly consented to by all of us and for so long? It is because of the patrimonial politics that still rules Malaŵi. People especially in top jobs want to please the powers that be to safeguard their jobs and achieve security of tenure. So people will work for organisations they did not want just to put food on the table. This is because the formal employment base in Malaŵi is still very small and dominated by the public sector.

But should we sacrifice our labour law rights on the altar of political expedience? Despite having a wonderful Constitution, we as our country are known more for disobeying it. Despite having one of the best employment law regimes, we are better known for tramping down employees’ rights. When will the employees cherish their contracts of employment and be assured of genuine security of tenure, especially in the public service.

[1] Electoral Case No. 2 of 2014, HC, Principal Registry.
[2] Page 1.
[3] Page 22
[5] Page 1
[8] Civil Cause No. 542 OF 95, HC, Principal Registry
[9] Section 27, Employment Act 2000 (as amended in 2010).
[10] Section 27(3).
[11] Section 32(2).
[12] Section 34(1)
[13] Section 60.

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