The State, on the application of Chikulupiliro Zidana, has been granted a judicial review which was applied for challenging President Lazarus Chakwera’s appoint of Brigadier General Kalumo (retired) as Director General for Immigration & Citizenship Services.
However, with regard to the application by Zidana as claimant for stay of the decision, High Court Judge Mike Tembo exercised his discretion not to grant it “considering all the circumstances of this case and for the sake of good administration in that it is necessary that there is an officer in place until such time as the impugned decision is tested and the issues raised by the claimant are determined”.
Made in chambers on February 17, 2023 the Justice Tembo said in his application for the judicial review, Zidana contended that President Chakwera’s decision to appoint Brigadier General Kalumo (retired) was illegal and irrational since the Director General was not in the public service at the time of his appointment.
He cited Section 3 of the Immigration Act that requires that appointment of a Director General or Chief Immigration Officer be from members serving in the public service — to which the putative (assumed) defendant on behalf of the President did not contest.
“The case of the claimant [Zidana] is that he has experience since 2012, as an immigration officer at the Department of Immigration & Citizenship Services,” said the Judge. “He seeks review of the decision of the putative defendant because the decision is illegal and irrational in that it contravenes a number of statutes or laws.
“He indicated the decision herein contravenes section 3 of the Immigration Act in that the Director General ought to be appointed by the Minister of Homeland Security and not the President of the Republic.
“In opposition to this, the defendant indicated that the President of the Republic has power under section 6 of the Public Service Act to appoint any person in public service to a post above the rank of under-secretary in which band the Director General’s post is. And that therefore the President was the appointing authority and not the Minster of Homeland Security.
“The putative defendant’s view is also that the claimant has no sufficient interest given that he is at Grade I/PO level and does not have the relevant experience for the post of Director General of Immigration & Citizenship Services contrary to the claimant’s assertions.
“The claimant then also alleged that the putative defendant’s decision is illegal and irrational for contravening section 29 of the Public Service Act which prescribes that anyone above the age of 60 years can no longer serve in public service.
“He asserted that the Director General was aged over the prescribed retirement age at the time of his appointment. There was no response from the putative defendant on this aspect.
“The claimant essentially seeks to challenge the appointment as illegal and irrational since there are serving members in public service eligible for the appointment herein rather than the incumbent Director General who is above the retirement age and was appointed from outside the public service.
“The putative defendant contended that in fact the impugned [challenged] decision itself cannot be challenged using the judicial review process but the decision making process only. And that, the claimant could therefore not challenge the decision herein in the manner he seeks to.
“The putative defendant also contended that the claimant is raising issues of discrimination at the workplace and that he should have commenced proceedings in the Industrial Relations Court and not before this Court.
“This Court observes that it appears that the claimant has standing before this Court given his years of experience in the Department spanning over a decade. He also now holds a Bachelor of Laws (Honours) Degree.”
The Judge further said the issues raised by Zidana, “alleging that the impugned decision herein whereby public law powers under statute were exercised allegedly illegally and irrationally, bring the matter herein squarely under the purview of judicial review”.
“There are countless authorities to the effect that a decision will be subject to judicial review if it is alleged to constitute an irrational exercise of public power, in this case power under statute.
“In the final analysis, this Court finds that the present application has merit in that the issues raised are fit to proceed to a full hearing and this Court grants the claimant permission to apply for judicial review.
“The defendant shall therefore file a defence within the time stipulated by the rules of civil procedure once the application herein is served.
Brigadier General Kalumo (retired) was appointed through a public notice from the Office of the President and Cabinet on 5th August, 2022 — made in pursuant to the powers of his office provided for in section 89 of the Constitution and section 6 of the Public Service Act.