Supreme Court finds ex-PM’s ACC block lawful

Former prime minister Saara Kuugongelwa-Amadhila acted in accordance with a section of the Public Service Act when she set aside the appointment of the head of investigations and prosecutions of the Anti-Corruption Commission in July 2020, the Supreme Court has found.

The finding was made in a judgement in which the Supreme Court on Friday dismissed an appeal filed by the prime minister, the Anti-Corruption Commission (ACC) and the government after a Windhoek High Court judge in April 2023 set aside Kuugongelwa-Amadhila’s decision to stop the appointment of ACC investigator Phelem Masule as the ACC’s chief of investigations and prosecutions.

The appeal was dismissed after the Supreme Court court found that Kuugongelwa-Amadhila did not act on the basis of the Public Service Act’s sections 5 and 18, as was argued on behalf of the appellants, but acted on the basis of the law’s Section 7.

Although the court found that the High Court erred when it set aside Kuugongelwa-Amadhila’s decision about the appointment of Masule, it dismissed the appeal after finding that the appellants undermined their case by deciding not to rely on the Public Service Act’s Section 7 in their appeal.

Chief justice Peter Shivute wrote the appeal judgement, with which appeal judge Elton Hoff and acting judge of appeal Theo Frank agreed.

Masule was informed in July 2020 that he had been appointed as the ACC’s head of investigations and prosecutions. In a letter at the end of July 2020, however, Kuugongelwa-Amadhila notified him that she had set aside his appointment.

That was after another candidate for the position, Ananias Iiyambo, had addressed a complaint to Kuugongelwa-Amadhila about the appointment of Masule.

It was found in the High Court’s judgement that the then prime minister acted in circumstances where she had no power to act, and that the complaint sent to her should have been dealt with by the Public Service Commission (PSC) instead.

The Public Service Act’s Section 5 states that the appointment of any person to the public service or the promotion of any staff member “shall be made by the prime minister on the recommendation of the [Public Service] Commission”.

In the act’s Section 7, it is stated that the prime minister may delegate any power entrusted to her under the act to any staff member in any office, ministry or agency in the government. It is also stated in the section that such a delegation of power does not remove the prime minister’s power that was delegated, and that he or she “may at any time vary or set aside any decision made thereunder”.

In their appeal to the Supreme Court, the prime minister, ACC and government at first stated that Kuugongelwa-Amadhila relied on the act’s Section 7 when she decided to set aside Masule’s appointment.

However, in subsequent written arguments on behalf of the appellants a different line of argument was pursued and the court was informed that they were relying on the act’s Section 5 and Section 18, saying the prime minister should approve the promotion of a public service staff member, Shivute noted.

The prime minister did not vary or reject the PSC’s recommendation regarding the appointment of Masule, but set aside the decision of the ACC’s executive director, who had the delegated power to appoint Masule, Shivute said.

The “prime minister acted strictly in accordance with Section 7; she was entitled to do so”, Shivute stated.

Had the appellants continued to rely on the act’s Section 7, their appeal might have succeeded, he added.

The prime minister, ACC and government were represented by legal counsel Eliaser Nekwaya and Eva Shifotoka, on instructions from the Office of the Government Attorney.

Tinashe Chibwana, instructed by K Kamwi Law Chambers, represented Masule.

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