11/11/2025
My view on Mr Phetekere's refusal to accept the secondment by OPC.
Here’s what the laws and constitutional principles of Malawi say in relation to this situation, based on how secondments, contracts, and public service rules work:
1. The Constitution on Public Service Employment
The Malawi Constitution (Section 187–189) regulates the public service, stating that:
The President, through the Office of the President and Cabinet (OPC), has authority over deployment, discipline, appointment and secondment of public officers.
However, this power applies only to people who are part of the civil service.
So the key question is:
❓ Is Mr Phwetekere still a civil servant?
If he voluntarily retired, then by law he ceased to be a civil servant and the Constitution gives OPC authority only over civil servants.
2. The Constitution on Contracts
Section 44 and Section 20 of the Constitution protect contractual rights.
This means:
If a person is hired on a fixed-term employment contract, that contract becomes legally binding.
Government cannot violate or ignore contractual terms without legal basis.
So, if Mr Phwetekere has a 5-year contract with the Loans & Grants Board (01 March 2023 – 2028), then constitutionally that contract must be respected, unless there is:
Misconduct,
Termination according to contract terms,
Mutual agreement.
3. Are Parastatals Part of the Civil Service?
Important:
Statutory bodies like the Higher Education Students Loans & Grants Board are NOT civil service institutions.
Meaning:
Their employees are not civil servants.
OPC cannot “second” them unless the contract specifically allows it.
4. What Malawian Law Likely Supports in This Case
According to the Constitution + Public Service Act + contract law, the following applies:
If Mr Phwetekere truly retired from civil service:
Then:
He cannot be seconded because secondment only applies to active civil servants.
His contractual role at the Loans Board supersedes any OPC directive.
If his contract is valid and running:
The Constitution protects his right to continue his contract.
The government cannot unilaterally “move” him.
5. Conclusion (Legally and Constitutionally)
Based on the Constitution of Malawi:
OPC has no authority to second someone who is no longer a civil servant.
A valid contract with a statutory body is protected under constitutional contract rights.
Mr Phwetekere is legally correct if he indeed retired before the contract.
In simple terms:
If he truly retired and is on a fixed-term contract, the Constitution supports him more than OPC.
This is why he is confidently refusing the secondment.
Thank you by EngAllan
fans
