High Court Judge Mike Tembo has thrown out an application by former National Oil Company of Malawi Limited (NOCMA) Deputy Chief Executive Officer Hellen Buluma seeking to to apply for a judicial review of the Ombudsman’s decision to nullify her appointment.
In October last year, Ombudsman Grace Malera directed Nocma board to immediately nullify the contract of Buluma following findings that her recruitment was unlawful, irregular and unprocedural.
Malera further ordered that Buluma should not be paid emoluments, terminal benefits or other payments accrued to her during the time she rendered services as Deputy Chief Executive Officer (CEO)of NOCMA.
In the application, Buluma asserted that the Ombudsman’s decision targeted her and nullified her employment even though she was not responsible for her own recruitment.
She further argued that by section 5 of the Ombudsman Act, the Ombudsman is meant to inquire into injustices inflicted on citizens and not victimize the citizens and that the putative defendant acted vice versa in the present case.
The former NOCMA Acting CEO further asserted that the Ombudsman did not appreciate her powers and ventured into areas of private law and that her employment and entitlements are matters of employment law which is a matter of private law and cannot fall within the arena of section 5 of the Ombudsman Act.
In his ruling, delivered on Thursday, Justice Tembo said Buluma did not provided a legal basis to assail the well taken legal position of the Ombudsman Malera in her determination, which was supported by legal authority, to the effect that it is not possible to cure an illegal recruitment which was not made by the rightful authority as the Board of NOCMA had attempted to by ratifying her illegal appointment.
“That well taken position by the putative defendant cannot be assailed by the claimant’s contention on this application, namely, that the claimant was not responsible for her own recruitment. Further, the decision of the putative defendant is well grounded at law to avoid creating or perpetuating a situation where Ms. Buluma unduly benefits from an illegality given that Ms. Buluma does not have a legitimate expectation in respect of terminal benefits, since a person cannot be deemed to have a legitimate expectation over an illegality.
“In the foregoing circumstances, this Court finds that the present case is not fit for consideration at a full hearing. There are no serious issues fit for further investigation at a full hearing on judicial review. The application for permission to apply for judicial review is accordingly declined,” reads part of the ruling
Buluma began work as deputy CEO on August 26 2019 but her contract was signed on March 27 2020.
