High Court grants ACC investigator leave to occupy top position after Prime Minister’s objection

Hertta-Maria Amutenja

High Court Judge Eileen Rakow, has granted Anti-Corruption Commission (ACC) investigator Phelem Maseka Masule leave to execute a judgment delivered on 25 April 2023.

This allows Masule to take up the position of Chief of Investigation and Prosecution with the ACC while awaiting an appeal by Prime Minister Saara Kuugongelwa-Amadhila and the ACC.

The case revolves around the vacancy for the Chief: Investigations and Prosecutions Grade 3 position at the ACC, advertised in local newspapers in November 2019. The dispute arose when the initial recommendation of the interview panel, favouring Masule as the second-highest scorer, was overridden by the then ACC Executive Director, Hannu Shipena.

According to court documents, Shipena recommended another candidate only identified as Iiyambo, who scored the highest during the interview, but this decision was later challenged by the Public Service Commission.

The Public Service Commission concluded that Iiyambo’s application was incomplete, recommending Masule for the position. Despite this, Prime Minister Sara Kuugongelwa-Amadhila intervened by objecting to the appointment of Masule, a decision rejected by the Public Service Commission, citing procedural irregularities.

In court documents, ACC Director General Paulus Noa admitted awareness of irregularities in the recruitment process. Where some applicants, including Iyambo, who initially scored the highest during interviews, submitted incomplete or incorrect documents. However, it was allegedly “agreed” that these issues could be rectified during the vetting process for shortlisted candidates.

In response, Masule approached the High Court seeking leave to execute the judgment that favored his appointment. Judge Rakow, in her ruling, acknowledged Masule’s qualifications and the vacancy that has remained unfilled since November 2019.

Additionally, she considered Masule’s imminent retirement, noting that if relief is granted, he would effectively work for only one month in the desired position, reducing potential harm to the respondent.

The judge emphasised the lack of evidence provided by the respondent regarding the irreparable harm they might suffer if relief is granted. On the other hand, she highlighted Masule’s potential irreparable harm if denied the opportunity to achieve the top position recommended for him.

“The court further took into account that the applicant will reach the age of 60 at the end of March 2024 and if relief is granted will effectively only work for one month in the position, reducing the possible harm that the respondent might suffer significantly. This harm is, however, not irreparable as the respondent will still have a claim against the pension money and property of the applicant, should their appeal be successful,” Rakow stated in her ruling.

The order issued includes the judgment dated 25 April 2023 being carried into execution pending the appeal lodged with the Supreme Court.

Moreover, last year, the court overturned Kuugongelwa-Amadhila’s decision to reverse Masule’s promotion to the position of Chief of Investigations and Prosecutions in 2020. Rakow, in her ruling, set aside the Prime Minister’s August 2020 decision, citing irregularities within the recruitment process. The judge further ordered the commission to restart the process of recruiting a new Chief of Investigations and Prosecutions.

“The first respondent acted in circumstances where she had no power to act… the Prime Minister should have looked into the decision and advised the President, as he is the next role player who can decide to either confirm or set aside the recommendation of the public service,” stated Judge Rakow.

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