Ref. No. MICA/AG/135 20 August, 2020 FROM: THE ATTORNEY GENERAL, MINISTRY OF JUSTICE AND. CONSTITUTIONAL AFFAIRS, PRIVATE BAG 333, LILONGWE 3 TO: THE RIGHT HONOURABLE THE VICE PRESIDENT MINISTER RESPONSIBLE FOR PUBLIC SECTOR REFORM. SECRETARY TO THE PRESIDENT AND CABINET. ALL PRINCIPAL SECRETARIES AND HEADS OF PUBLIC INSTITUTIONS Geto: ‘The Honourable Minister of Justice and Constitutional Affairs. Solicitor General and Secretary for Justice. DECISION MAKING IN THE PUBLIC SERVICE AND LEGAL ADVICE FROM THE OFFICE OF THE ATTORNEY GENERAL |-DECISION MAKING 1. Further to the Principal Secretaries Handbook and the Attorney General's Memorandum. 2, Section 12 of the Constitution states that the exercise of the legal and political authority of the State derives from the people of Malawi. 3. In the context of the public service, section 43 of the Constitution is important. The provision states: “Every person shall have the right to~ (8) lawful and procedurally fair administrative action, which is justifiable in relation to reasons given ‘where his or her rights, freedoms, legitimate expectations or interests are affected or threatened; and (6) be furnished with reasons, in writing, for administrative action where his or her rights, freedoms, legitimate expectations or interests are affected.’ 4. Further to para. 3, the import of section 43 of the Constitution is that any administrative action must a) be procedurally fair; b) be lawful; ¢) be in writing; and 4) protect legitimate expectation,5, Lawful administrative action entails that a) those that are likely to be affected by a decision must be given an opportunity to be heard; and b) a decision maker must appear to be impartial and unbiased in making the decision. 6. Hence, before a public officer exercises the legal and political authority of the State, two questions must be asked at all times: First, what does the Constitution state ‘on this matter? Second, is there a law on the matter? 7. The processes of recruitment; selection; placement or posting; transfer and secondment; and promotion and discipline in the public service are carried out in accordance with the legal framework applicable to the public service, namely, the Constitution; the Public Service Act; the Malawi Public Service Regulations (the ‘MPSR’); the Employment Act; and the Labour Relations Act. 8. Secondment is provided for under Regulations 1:175 and 1:176 of the MPSR, 9, Any purported secondment outside this legal framework is illegal. 40. Secondment is a temporary movement of an employee, with his or consent, from one Ministry, Department or Agency to another Ministry, Department or Agency to perform the function of a position that already exists or to take on a special project. ‘The employee maintains his or her substantive position in the ‘sending’ Ministry, Department or Agency, and is pald by the ‘sending’ Ministry, Department or ‘Agency. More critically, the secondment must be at the request of the ‘receiving’ Ministry, Department or Agency. 41. The Secretary to the President and Cabinet is involved in the secondment of Principal Secretaries or Heads of Public Institutions only. In all other cases, he cannot, and must not, be involved. Any involvement is tantamount to procedural impropriety and illegal. in all other cases, the Principal Secretaries are in charge of the process outlined at para. 10 12.In relation to deployment, a practice has emerged in recent years where a public officer is informed that he or she has been pasted to the Office of the President and Cabinet where they shall be assigned new responsibilities. Such officers report for work and do nothing. 43. Deployment must comply with the Constitution and sections 3, 7 and 10 of the Public Service Act. 14.lllegal deployment is costly, Lately, the State has been ordered to pay over MWE&700 million and MWK500 million because of illegal deployment of public officers. Fair labour practice is a paramount principle under Malawi's labour law. The courts in Malawi have relentlessly upheld this principle. 45.The appointment and dissolution of the boards of directors of statutory corporations, public trusts and state owned enterprises must meticulously adhereto the provisions of the Act of Parliament relating to each statutory corporation or state owned enterprise or the trust deed relating to the public trust. 16.A statutory corporation, public trust or state owned enterprise does not have a board once one is lawfully dissolved. A practice has emerged in recent years where ex officio members of boards meet and transact business in the name of the board; including making resolutions as a board when a board has been lawfully dissolved. This practice is illegal. An ex officio member is a member of a board that has been lawfully constituted. No person continues to be a member of a board when that board is lawfully dissolved. 17.The appointment and removal of the Chief Executive Officers of statutory corporations, public trusts and state owned enterprises are governed by the Act of Parliament or trust deed establishing the particular entity. The relevant board must publicly advertise the position or positions; suitable candidates must be short listed; interviewed and, finally, the successful candidate or candidates must be appointed by the board 18.A practice has emerged in recent years where the Comptroller of Statutory Corporations publishes a public advertisement for positions in statutory corporations, public trusts or state owned enterprises. in other cases, the Secretary to the President and Cabinet or the Comptroller of Statutory Corporations makes an announcement of an appointment of a chief executive officer or a member of senior management in a press release. This practice is illegal. 19.As at 17 August, 2020, and for the financial years 2018/2019 and 2019/2020, the total judgment debt against the State stands at approximately MWK29 billfon. These are the major factors leading to the debt: a) Default judgments; b) Breach of contract; ©) Badly drafted contracts; and d) Procedural impropriety. 20.The Attorney General must be involved in the negotiation and execution of contracts that Government, through Ministries, Department or Agencies, enters into. N=LEGAL ADVICE 21. The Attorney General is the principal legal adviser to Government. 22.A request for legal advice, and the legal advice given, must be in writing, 23.A request for legal advice must be sent through the Principal Secretary or Head of the relevant Public Institution and must be addressed to the Attorney General or the Solicitor General. 24, Every request for legal advice must fully disclose all relevant information, including adverse information.25.Alll officers in the Attorney General's Chambers are under instructions to decline provision of legal advice orally or to provide legal advice to anyone who casually drops in at the Chambers. 26.All legal advice from the Attorney General's Chambers to @ Ministry, Department or Agency is confidential lowe, NEY GENERAL