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PM takes ACC case to Supreme Court

Prime minister Saara Kuugongelwa-Amadhila is approaching the Supreme Court to challenge a High Court judgement in which her decision to block the appointment of Phelem Masule as the Anti-Corruption Commission’s chief of investigations and prosecutions in July 2020 was set aside.

Kuugongelwa-Amadhila has alerted the High Court that she will be appealing against judge Eileen Rakow’s judgement, which was handed down on 25 April this year.

The stand-off between Masule and Kuugongelwa-Amadhila started in 2020.

The ACC investigator sued the prime minister after she reportedly removed him from his new position – barely three days after being promoted.

In new court papers seen by The Namibian, Kuugongelwa-Amadhila says the grounds of her appeal are that the High Court erred in law and on the facts in granting Masule’s application and ordering her to pay his legal costs.

Kuugongelwa-Amadhila says the court misdirected itself when it found that the prime minister did not have the power to set aside the decision to promote Masule to the position of chief of investigations and prosecution at the ACC.

Kuugongelwa-Amadhila also argues that a provision of the Public Service Act expressly gives her the power to appoint, promote, transfer or discharge any staff member within the public service.

In her judgement, Rakow found that the prime minister’s role in the process of appointment of a public service staff member must be to put into effect the decision of the Public Service Commission, and nothing else.

However, the prime minister has argued that the Public Service Commission’s role is limited to making recommendations to her on matters of promotion.

Saara Kuugongelwa-Amadhila

“The court erred in law by finding that the prime minister acted ultra vires the act by setting aside the promotion of Mr Masule […] because in terms of section 7(2) the prime minister is vested with the power to set aside anything done under the power delegated by her to, and so exercised by the executive director of the ACC,” she says in her appeal notice.

Kuugongelwa-Amadhila further says there must firstly be consultation between the Public Service Commission and the president, who has the power to accept or reject any decision made.

Another round of consultations should be held between the Public Service Commission and her office, and the commission’s recommendations may also be rejected or accepted, she says.

Kuugongelwa-Amadhila has insisted there was nothing sinister about her decision to get rid of Masule.

In an affidavit filed at the High Court, she said Masule’s promotion was premature and argued his court application lacked substance.

The prime minister is on record saying she only got to know of Masule’s promotion long after it was implemented.

She said she acted on a written complaint about irregularities in the recruitment process from a certain Ananias Iyambo before she sought a legal opinion, and unsuccessfully directed the Public Service Commission to reconsider its recommendation of Masule.

“I deny that there was anything obviously flawed in what I have done so far. I acted with the assistance of technical and legal advice.

“I accept that this court may find that I acted incorrectly, however, from the applicant’s own papers it is clear that the issues are complex,” she said.