ACC investigator gets one month in top post

A senior Anti-Corruption Commission (ACC) investigator whose appointment as the ACC’s chief of investigations and prosecutions was blocked by prime minister Saara Kuugongelwa-Amadhila, nearly four years ago. will be able to hold the position that was denied to him for only a month before his retirement.

This is after judge Eileen Rakow ruled in the Windhoek High Court on Friday that ACC investigator Phelem Masule should be allowed to take up the post he was appointed to in July 2020, before Kuugongelwa-Amadhila set aside his appointment.

Rakow ordered that a judgement delivered by her in April last year – in which she set aside the prime minister’s decision to cancel Masule’s appointment – should be executed while an appeal against that judgement is pending.

Rakow noted in her ruling on Friday that in terms of the High Court’s rules the operation of a court order is suspended when an appeal to the Supreme Court has been noted against the judgement in which that order was made. However, the High Court can direct that the order should be executed while an appeal is pending, if it is asked to do so.

She also noted that in her judgement in April last year she took into account that Masule was qualified for the position which he applied for and that his appointment was recommended by an interview panel and the Public Service Commission.

She added that she took into account that Masule will reach the age of 60 in March and will effectively hold the post as the ACC’s chief of investigations and prosecutions, which has been vacant since November 2019, for only one month before retiring.
Rakow also said in her opinion the prime minister has slim prospects of successfully appealing to the Supreme Court against her previous judgement.

Kuugongelwa-Amadhila set aside the Public Service Commission’s recommendation to appoint Masule as the ACC’s chief of investigations and prosecutions at the end of July 2020, after her office received a complaint about alleged irregularities in the recruitment process.

Masule thereafter challenged the prime minister’s decision in the High Court. In the judgement that she delivered in April last year, Rakow found that in terms of the Public Service Act only the president may vary or reject a recommendation made by the Public Service Commission. She repeated in her ruling on Friday that it was clear Kuugongelwa-Amadhila acted in circumstances in which she had no power to act.

A complaint about the recruitment process should have been determined by the Public Service Commission, “as they are the impartial, independent body created to deal with complaints”, Rakow said.

“They had to arrive at a just and fair decision regarding promotions in the public service. At most, the prime minister should have looked into the decision and advised the president as he is the next role player that can decide to either confirm or set aside a recommendation of the Public Service Commission,” she stated.