NEWSLETTER OFFICE OF THE OMBUDSMAN

INSIDE THIS ISSUE

Supreme Court Sides with Ombudsman on “Tractorgate” Case .....Pg. 1 Ombudsman finds City and District Councils to have neglected and acted with Bias towards Children living and working in the streets ……………………………..….Pg. 2 Deceased Civil Servant Awarded 31 Million Kwacha in Gratuity Arrears …………………………….…..Pg. 3

Ombudsman Meets Thyolo and Rumphi District Executive Committee Members …………..……. Pg. 4

UNDP Hands Over a Car to the Office of the Ombudsman …………....Pg. 6

Chikwawa CSO’s Oriented on the Hospital Ombudsman Platform …………………………..…....Pg. 7 Hospital Ombudsman Trained ………...…….…..Pg. 7 Ombudsman Determines that it is Illegal for Unaccredited Private Universities to Offer Law Programmes …………...Pg. 8 Office of the Ombudsman Trains MDA on Public Complaints Handling...Pg. 8

SUPREME COURT SIDES WITH OMBUDSMAN

ON “TRACTORGATE” CASE

A landmark judgement delivered on 11th

February, 2019 ruled the infamous

“tractorgate” saga in favor of the

Ombudsman.

In October 2016, The Ombudsman released

her investigation findings on allegations of

maladministration and related irregularities

in the purchase and disposal of the farm

machinery under the $50,000,000.00 line of

credit from Export- Import Bank of India in

2010 .

The investigation was carried out in response

to two complaints lodged between April and

May 2016 over the manner in which the

Malawi Government sold some tractors and

other farm machinery to public officers and

other farmers. Her findings were released in

a report titled “The Present Toiling, The

Future Overburdened”.

The Attorney General, by way of Judicial review, challenged the report and its findings stating that

the Ombudsman had no jurisdiction and that some of the directives were unreasonable. The High

Court agreed with the Attorney General and ruled that the Ombudsman had no jurisdiction over the

matter. The Ombudsman appealed against the High Court’s decision to the Supreme Court.

On 11th February, 2019, the Supreme Justices of Appeal Twea, SC, JA, Kamanga, SC, JA, and Chikopa

SC, JA ruled in favour of the Ombudsman by stating that the Ombudsman has jurisdiction over the

matter and the directives made in the report were binding.

The Court gave the Malawi Government 60 days within which to comply with the directives of the

Ombudsman. This is a landmark judgement in that it clarifies the Jurisdiction of the Ombudsman and

also entrenches the roles of the office in as far as accountability of public resources is concerned.

January 2019—June 2019

In March 2018, the Ombudsman released an investigation

report where it was found that City and District Councils had

neglected and acted with bias in the manner over the manner

in which they execute their functions under the Constitution

and the Child Care, Protection and Justice Act in relation to

children living and working in the streets. The investigation was

conducted following a complaint from Eye of the Child, a local

Non-Governmental Organization.

In the report titled ‘Abandoned on the Streets’, the

Ombudsman found that DSWOs have acted with bias by ignoring activities to do with children

living and working in the streets in favour of other social welfare. Furthermore, DSWOs were

found to neglect their duty by being unavailable for court appearances and withdrawing of

children from the streets.

continued on page 3.

MESSAGE FROM THE OMBUDSMAN

OMBUDSMAN FINDS CITY AND

DISTRICT COUNCILS TO HAVE

NEGLECTED AND ACTED WITH BIAS

TOWARDS CHILDREN LIVING AND

WORKING IN THE STREETS

OMBUDSMAN INTERNATIONAL ENGANGEMENTS

13th to 15th march 2019- The

Honorable Ombudsman attended

an African Ombudsman Research

Centre (AORC) mediation training

for African ombudsman in Durban

south Africa.

3rd May 2019-The Honorable

Ombudsman attended the 16th

African Ombudsman and

Mediators Association (AOMA)

Executive Committee (EXCO)

Meeting in Nairobi, Kenya.

14th to 17th May, 2019 - The

Honorable Ombudsman attended

the Annual Board of Directors

Meeting for the International

Ombudsman Institute (IOI) in

Merinda, Mexico.

Welcome to the first newsletter issue for the

year 2019. I am excited to update you on the

work that has been done in the first half of

the year and hope that you will be inspired to

utilize our services and or support our work.

In this issue, we highlight some of the cases

we have concluded so far this year. As you go

through these cases, we hope that those of

you in similar situations or who know some-

one who is , you will be able to seek redress

from my office. This issue also highlights the

5th systemic investigation conducted by the

office. The investigation was on allegations of

neglect and bias by city and district councils in

handling issues affecting children living and

working on the streets .

As we continue to work towards a Malawi

free of maladministration, there is a dire need

to ensure that every member of the public is

aware of and is empowered to use the

Ombudsman services. As such, the office also

carried out sensitization activities, through

public rallies and mobile clinics .

We continued to strengthen the hospital

ombudsman platform through a series of

stakeholder trainings and awareness

activities . The platform aims at ensuring

health service users are able to receive instant

redress in cases of misconduct by health

worker or system failure.

On a final note, please allow me to take this

opportunity to assure you that the office of

the Ombudsman will continue to promote

transparency and accountability through its

fight against administrative ills in public

service delivery. We are fully committed to

ensuring that we remain relevant to the

needs of all Malawians and hence shall con-

tinue to intervene in issues that really matter

in everyday lives of Malawians. Thank you!

2

OMBUDSMAN MEETS THYOLO AND RUMPHI DISTRICT EXECUTIVE COMMITTEES

On 12 February, 2019 and 2nd

April, 2019 and The Ombudsman

and the directors held meetings in

Thyolo and Rumphi respectively

with the District Executive

Committees (DEC). The aim was to

present public service delivery

issues and complaints identified

through mobile clinic activities that

the office conducted in the district

in the year 2018.

The Ombudsman then made

recommendations to remedy the

complaints and improve public

service delivery in the districts The

heads of institutions were given

timelines to resolve the complaints

and make the necessary changes

as recommended. Office of the

Ombudsman was to then follow up

in order to make sure that the

recommendations are implement-

ed.

DECEASED CIVIL SERVANT AWARDED 31

MILLION KWACHA IN GRATUITY ARREARS

The Ministry of Education has awarded the beneficiaries of Benias B Joseph; Rose Joseph, Magret

Mnong’oneza, Alick Mnong’oneza and Harlord Mnong’oneza terminal benefits amounting to

MK31, 970, 959.73.

This came about after he was asked to retire earlier than he was supposed to due to a mix up of

his age, which was later resolved after the Office of the Ombudsman was engaged.

Benias B Joseph was a civil servant working under the Ministry of Education, Science and

Technology as a Primary Education Advisor (PEA) in Msalura Zone until he reached retirement

age.

Mr Josephs’ parents died when he was very young, as such he grew up with distant relatives of

his mother who were illiterate. He was made to believe his date of birth was 12th August 1949,

therefore he entered this wrong date as his date of birth when he joined the civil service in 1975.

In 1990, he was told by his Uncle that his real date of birth was 12th August 1954. Upon realizing

his real date of birth, he took the appropriate measures to make the civil service aware of the

changes. He therefore filled out forms and submitted them to the Ministry of Education to

update their records.

On 11th April 2014, Mr Joseph received a letter informing him that he was to mandatory retire

on 30th August 2014. The letter reflected his correct date of birth as 12th August 1954 as he

would have attained 60 years of age by that date.

It came as a shock when he realized that Ministry of Education did not recognise his updated

date of birth but rather, they maintained 12th August 1949.

He passed on 24th April 2015 without having his terminal benefits processed. In a letter dated

8th July, 2015, from Mr. Edwin Mnong’oneza, the son to the deceased brought the allegations of

unfair practices by the Ministry of Education to the attention of the Office of the Ombudsman

(OoO).

With the intervention of the OoO, Ministry of Education, Science and Technology, through the

Administrator General paid terminal benefits to the deceased’s beneficiaries on 22nd May 2018

amounting to MK31, 970, 959.73.

3

from page 2

The Ombudsman observed that “the City and District councils had substantially failed to live up

to their obligations under the Child Care Protection and Justice thereby making a mockery of

the law itself and increasing the vulnerability of children living and working in the streets”.

The ombudsman directed that city and all district Councils should lead other stakeholders in

withdrawing Children living and working in the streets within twelve months, submit to the

ombudsman a schedule and court appearance plan of all the cases pending in the courts

involving children who live and work in the streets and engage NGOs and other stakeholders in

drawing up a sustainable plan of withdrawing all children from the streets.

UNFAIRLY DISMISSED EMPLOYEE POCKETS MK 5,095,818.00

Office of the Ombudsman received a complaint from a former

private security officer-in-charge against the Office of the Vice

President (respondent) for unfair termination of employment.

The complainant was employed by the respondent on a five-year

contract running from 15th June, 2009 – 30th June, 2014 as a

private security officer-in-charge. On July 7th 2010 around 6:00

am, after serving for only one year and one month of his con-

tract, he received a phone call from the senior deputy secretary

in the Office of the Vice President telling him that his contract

was terminated. When he tried to inquire from the senior deputy

secretary of the reasons why his contract was terminated, he was

simply told that the senior deputy secretary has received

instructions that his employment be terminated. The letter of

termination was sent to him in October, 2010 and did not

disclose the reasons for his termination of employment.

The Complainant wanted Office of the Ombudsman to help him

get his remunerations and benefits for the period up to the end

of his contract, since there were no proper reasons given for the

termination of the contract.

The Office made several correspondences with the Office of the

Vice President regarding the matter and a tripartite meeting was

held. The Office of the Vice President admitted to have erred in

unfairly terminating the contract and they agreed to pay him his

salary arrears and the benefits both amounting K5, 969, 888.00

which have since been paid.

In a letter dated 07/06/2019, the Complainant informed the

Ombudsman that he was paid his dues and he is very grateful for

the Ombudsman’s timely assistance.

4

MDA’S SENSITISED

In its quest to contribute towards improved accountability and

responsiveness in the public service delivery the OoO

conducted sensitization workshops with duty bearers in

Kasungu, Salima, Dedza, Ntcheu and Dowa. The office

recognizes that in order to fully improve accountability and

responsiveness in public service delivery there is need to em-

power both the supply and demand side. The supply side ‘duty

bearers’ though implicitly regarded to be aware of the their

role but the truth is most of them need to be empowered and

refreshed on their responsibilities and the need of adherence

to public code and conduct. With decentralisation, there is

need intensify efforts on awareness to duty bearers on the

issue of accountability and responsibilities within their

jurisdiction.

The participants were equipped with information on good administrative practices, enhancing transparency and accountability culture

in public institutions, Ethics and Integrity and the role of Office of the Ombudsman in promoting transparency and accountability in the

provision of public services.

After these trainings, it is expected that public institutions will be responsive to Office of the Ombudsman during its investigations and

enhance compliance to Ombudsman’s determinations and recommendations.

Participants of the MDA Sensitization Meeting

in Ntcheu with OoO Facilitators

The Office of the Ombudsman has ordered Malawi Police Service

(MPS) to re-employ four women who were dismissed in the course

of a police training on the basis that they were married to police

officers.

The women lodged a complaint with the Ombudsman’s office

through a letter where they alleged that when they arrived at Police

Training School in Limbe, they went through all the necessary

recruitment processes and were let into their rooms.

While some trainees were dropped due to various reasons such as

insufficient education qualifications and old age, the four passed all

the tests, including medical examinations and background checks

after providing their finger prints and were deemed fit for training.

Additionally, the four were also provided with identity cards, and

were asked to open bank accounts. They also received official

communication alluding to the fact that they had been employed by

MPS on 22nd May, 2016.

The determination, states that MPS dismissed the women from

training school because they were old and married to police

officers.

“One day while still training, we were called for roll-call where one

of the officers said that they were going to remove women who

were married as they needed to go home and cook for their

husbands.”

However, in the determination, the Honourable Ombudsman

Martha Chizuma, directed that the dismissal of the women in 2016

was discriminatory and constituted unfair treatment.

“Things become worse when one considers the marital status

requirement. Whilst on the face of it, the requirement may seem to

apply equally across the genders, the fact of the matter is that it is

largely or only women who get affected by such requirements” she

said.

The women also alluded to having suffered physical abuse through-

out the duration of their training. “Although we were being beaten

up, we were told that it was part of the training. They claimed that

the physical abuse would keep us in line. Sometimes they would

beat us up while we were sleeping. On one such incident one of our

colleagues was hurt, she was directed to go to the hospital and say

she had sustained the injuries after taking a fall” read the

determination in part.

This happened in the evening and their colleagues contributed

some money for their transport back home, according to further

testimony. Ironically, the women allege that there were older and

married women who were left behind and have since finished their

training.One of the candidates who was released for similar reasons

was picked in last year’s group and has since graduated as a police

officer.

The Honourable Ombudsman therefore directed that the women

should be reinstated as there is no justification to discriminate

against people of the same age groups based on marital status.

There was no immediate indication from MPS on whether the

service will appeal against the determination.

5

MPS ORDERED TO RE-EMPLOY FOUR WOMEN

OMBUDSMAN’S

SERVICES ARE

FREE

UNDP HANDS OVER A CAR TO THE OFFICE OF THE

OMBUSDMAN.

On 15th February, 2019 the Office of the Ombudsman (OoO)

received a car from United Nations Development Programme

(UNDP) which was presented by Ms. Agnes Chimbiri, the overall

Program Manager for Governance related programs.

Speaking at the handover ceremony, Office of the Ombudsman's

Executive Secretary, Mr Ellos Lodzeni, expressed gratitude towards

the UNDP.

"We are very grateful for what UNDP has done for us. This vehicle

will ease some of the transportation challenges the office was

facing. This will also reduce maintenance cost on the other vehicles

since we are a very mobile organization and we are constantly on

the road. We hope other development partners will do the same as

UNDP has done today” said the Executive Secretary.

The OoO has been in partnership with the UNDP from 2012 in

human rights particularly focusing on maladministration through the

Human Rights Support Project.

6

LOCAL COMMUNITIES EMPOWERED TO DEMAND TRANSPAR-ENCY AND ACCOUNTABILITY IN PUBLIC SERVICE DELIVERY

In its continued effort to empower the public to demand accountability

and administrative justice in public service delivery, The Office of the

Ombudsman, through the Chilungamo Program, funded by the

European Union, held mobile clinics in Nkhotakota and Blantyre and

public rallies in Nkhatabay .

The mobile clinics held in Nkhotakota and Blantyre involved

sensitization meetings with Area Development Committees, public

rallies and setting up of temporary offices for complaints intake, instant

investigation and resolution of alleged maladministration.

Communities were sensitized about Office of the Ombudsman's role in

promoting Transparency and Accountability in the provision of public

services and provided with information on how to effectively demand

transparency and accountability from duty bearers.

The public rallies held in Nkhatatabay also involved awareness raising

on the roles and mandate of the Office of the Ombudsman and

empowerment of the citizenry to demand transparency and accounta-

bility from duty bearers.

The Executive Secretary of the Office of the

Ombudsman receiving a vehicle from UNDP

Public Rally in Blantyre

The Hospital Ombudsman platform was launched in June 2018 by the OoO and the MoH with the aim of improving health service delivery in public health facilities’.

Office of the Ombudsman held a sensitization

meeting with Civil Society Organisation's

(CSO's) in Chikwawa to enlighten the CSO's on

the Hospital Ombudsman Platform as one of

the complaint handling mechanism now

available in all public hospitals and even

CHAM hospitals.

CSO's play a vital role in raising awareness of

communities about different issues which

affect their day to day lives. It is envisaged

that after this meeting, the CSO's will help in

conducting awareness campaigns so that

people are aware of the existence of hospital

ombudsman and the types of complaints that

the Hospital Ombudsman can handle. The

meeting was conducted with financial assis-

tance from United Nation’s Development

Program (UNDP) through the Human Rights

Support Project.

The Office of the Ombudsman (OoO) in

collaboration with Ministry of Health and

Population (MoH)- Quality Management

Department, held trainings for the Hospital

Ombudsman (HO) in the South East zone

health facilities and Dedza Health Facilities.

The trainings aimed at equipping the Hospital

Ombudsman with complaints intake and

handling skills, what remedies to provide and

how, conflict management and mediation

skills and to enlighten them on what kind of

cases they can and cannot investigate, and

their roles and functions .

A Hospital Ombudsman is an individual

empowered to investigate, mediate and

provide remedies to complaints lodged by

service users ,their representatives and other

stakeholders in relation to a hospitals service.

The primary focus of the Hospital

Ombudsman is to receive and investigate

complaints from service users on the quality

of health service at the respective health

facility. This includes but not limited to delays,

rudeness, incorrect advice and failure to

adequately respond to emergencies. These

Hospital Ombudsman are available at all

public health facilities including CHAM health

facilities.

The Hospital Ombudsman platform was

launched in June 2018 by the OoO and the

MoH with the aim of improving health service

delivery in public health facilities. 7

CHIKWAWA CSO’S ORIENTED ON THE HOSPITAL OMBUDSMAN PLATFORM

HOSPITAL OMBUDSMAN TRAINED OFFICE OF THE OMBUDSMAN DONATES TO FLOOD VICTIMS As part of its Institutional Social

Responsibility, Office of the

Ombudsman donated items to

people affected by floods at

Bitilinyula camp in Nsanje. Items

donated included clothes, shoes,

and sanitary pads to people who

were affected by the floods.

The donations came from various

individuals within and outside the

office.

DID YOU KNOW?

The Office of the Ombudsman

was established in 1994 under

section 120 of the Republic of

Malawi

It begun its work in 1995

It ‘s vision is “ A Malawi Free of

Maladministration “

It’s mission is “ To safeguard

administrative justice and

promote efficient and effective

public service delivery and

good governance” .

STAFF UP-DATES

Promotions

Ms. Lomagazi Jere was promoted

from the post of Senior Legal

Officer to Principal Legal Officer.

Mr William Chalulu was

promoted from the post of

Research Officer to Principal

Documentation Officer.

Mr Paul Njola

was promoted

from the post of

Assistant

Investigations

Officer to

Investigations

Officer.

Ms Emily Banda was promoted

from the post of stenographer to

Personal Secretary

Mr C.ement Nkhata was

promoted from the post of

stenographer to Personal

Secretary

Mr Henry Kachisi was promoted

from Senior Clerical Officer to

Programmer.

Appointments

Ellen

Chandilanga

holds a

Bachelor’s

degree in

Law

(Honours) from the University of

Malawi Chancellor College. She is

a practicing lawyer and has

worked in a private law firm

before joining the Office of

Ombudsman in April 2019.

Continued on page 9

OMBUDSMAN DETERMINES THAT IT IS ILLEGAL FOR UNACCREDITED PRIVATE UNIVERSITIES TO OFFER LAW PROGRAMMES Following a complaint lodged by Students

from Blantyre International University (BIU)

and Share World concerning the

un-accreditation of the law programs by the

National Council of Higher Education (NCHE),

the Honorable Ombudsman Martha Chizuma

has directed two Universities to stop offering

the law program until all legal requirements

are met.

In a determination dated 25th January 2019,

the Ombudsman wrote that the law programs

which were offered by BlU and Share World

University were never accredited in the first

place. The Ombudsman further expounded

that this was not because the law prohibits

the universities from offering Law programs

but rather because the body which regulates

the Law curriculum and syllabus has not

accredited them.

"The Malawi Council for Legal Education

which is legally mandated to provide technical

guidance through regulation of curriculum

and syllabus before accreditation of the law

program has to date only done this for the

Law program at University of Malawi,

Chancellor College. This means that any Law

program which is being offered by any other

university in the country is being offered

illegally and will result to naught" read the

determination in part. She therefore asked all

privately owned universities to top offering

the program until if and when the law chang-

es because they are simply wasting students'

money.

Chizuma however pointed out that the

practice of letting foreign law students

practice Law in the country was unfair. "The

fact that the law can allow foreign trained

students with Law degrees which the council

has not had a chance to monitor the

curriculum and syllabus to practice and yet

those from Malawi are prohibited sounds

unnecessarily contemptuous for local

education to me. It is therefore very

comforting to note that the proposed

amendments to this law are taking care of

these concerns" she said.

8

OFFICE OF THE OMBUDSMAN TRAINS MDA

ON PUBLIC COMPLAINTS HANDLING

Office of the Ombudsman

conducted Capacity Building

Training on Public Complaints

Handling for Small and Medium

Enterprises Development

Institute (SMEDI) and the National

Audit Office (NAO). This followed

requests from the offices to train

their Client Complaint Handling

Committee.

The committees were trained on

Effective Complaint Handling,

Communication and Complaint

Handling, Ethics and Integrity,

Effective Awareness Strategy for

Complaint Handling Mechanism, Systematic Record Keeping for Complaints and the basics of

customer service specifically hinging on the Malawi Public Service Code of Ethics and Conduct.

Honorable Ombudsman with Trainers

from OoO and participants from SMEDI

Teachers are by default regarded as guardians

to children placed under their charge. This,

however, was not the case for Mr. A. Phiri

who deliberately took advantage of a girl child

under his care.

Mr Phiri who admitted to have slept with the

14 year old standard 8 girl, logged a complaint

to the Office of the Ombudsman because he

was certain that he was unfairly dismissed

from work as he was never called to

disciplinary hearing.

Phiri was employed as a teacher on

September 20, 1983. However, an allegation

was made against him in 2003 that he had

raped a school girl but he was later acquitted

and posted to another school.

He met his fate in February 2004 when he

went to get his salary since the pay point had

not been changed. Upon reaching the place,

he was shocked as he was handed a letter of

interdiction which resulted in him to be put

on half pay. He was later dismissed in

October the same year, after which he filed

his complaint to the Ombudsman because his

interdiction was prolonged.

“I was never called for a disciplinary hearing

and I suffered a lot because of this. I just want

my terminal benefits because I had worked

for 21 years by the time of the dismissal,” a

helpless 60year old Phiri said.

In his remarks, the District Educational

Manager said the complainant was never

called for a disciplinary hearing because his

case was still in court hence the more reason

they used a court report to dismiss him, as

they could no longer trust him with any girl

child. Moreover, they stopped paying him

because according to the District Educational

Manager, the moment Mr Phiri slept with the

girl, he committed a serious charge.

In her determination on the matter, the

Ombudsman Martha Chizuma said awarding

Mr A Phiri his terminal benefits would set a

terrible precedent in the education sector as

it can incite teachers who have clocked 20

years in public service to commit such

misconducts knowing that they will face no

serious reprisals.

However, she said that the Ministry of

Education Science and Technology should

have considered him for retirement rather

than dismissal and that they shouldn’t have

prolonged his interdiction.

“The complainant should be compensated for

such a malpractice and that he be reimbursed

all the moneys he was withheld during his

interdiction as it was prolonged. Also because,

he had already attained the 21 years

qualifying service when being dismissed, “she

said.

A lot of people are unfairly dismissed from

work in the public sector but they choose to

be quiet about it. No matter the offence,

report the matter to the Office of the

Ombudsman .

9

STAFF UP-DATES

From page 8

Appointments

Ms. Brenda

Kumwenda

Chitonde

was

appointed

as a

Research

Officer in March 2019. She has a

Bachelor of Library and

Information Science (BLIS) from

Mzuzu University. She worked with

Nkhoma College of Nursing as a

College Librarian for 3 years. Later

in 2015 joined DMI St. John the

baptist University.

Mr Mike Khembo was appointed

as an Accounts assistant

Ms Padita Kara was appointed as

a Documentation Assistant

Ms

Chimwemwe

Namasika was

appointed as

Assistant

Investigation

officer

Mr Peter Ndau was appointed as a

driver

Mr Justin Chipembere was ap-

pointed as a driver

CRY OF UNFAIRLY DISMISSED SCHOOL

TEACHER

OFFICE OF THE OMBUDSMAN

HEADQUARTERS

Private bag 348

Lilongwe

Tel : 01774899

St Martins house

SOUTHERN REGION OFFICE

Private Bag 171

Blantyre

Tel: 01334726

Kannabar House

EASTERN REGION OFFICE

Private Bag 150

Balaka

Tel:01552638/651

Mwawa house

CENTRAL REGION OFFICE

Private Bag B402

Lilongwe

Tel: 01751846

St Martins House

NORTHERN REGION OFFICE

Private Bag 12

Mzuzu

Tel : 01 312 420

Grace Building

Email: ombudsman@ombudsmanmalawi.org

Website: www.ombudsmanmalawi.org

Facebook : www.facebook.com/ombudsmanmw

Twitter: https://twitter.com/OfficeoftheOmb1