‘The law cannot be adhered to in part’ - Malawian court on dispute over police officer sacked for nude photos

25 June 2021 · Carmel Rickard

Could the law countenance a dismissal on the grounds that a recruit had nude photos taken of herself while she was at police training college? That is the unusual question posed to the high court in Malawi, when the woman concerned challenged her dismissal. Was it even illegal – under any Malawian law – for a police officer or recruit to have taken nude pictures of herself for private use? Read on to see how the court resolved the problem.

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Esther Chiunjiza, whose activities while at police training school came under scrutiny by the high court, started her training in 2016. During the period of training, she had nude photographs taken of herself by a colleague at the school. In November of that year she was deployed as a constable, and by February 2017 the photographs were being circulated on social media.

She was charged with ‘conduct to the prejudice of good order and discipline’ and dismissed on the grounds ‘that she is unlikely to become efficient’.

One of the interesting features of the case is that the dismissal decision was taken in 2017, but she only appealed the judgment in 2020. Since the Police Act allows a high court appeal against a dismissal decision within 30 days, how was Chiunjiza able to persuade the judge to hear her case?

Consent

It turned out that, in the intervening years, Chiunjiza had been ‘negotiating her reinstatement through [the] Malawi Human Rights Commission’, but that this had proved unsuccessful. For this reason, the high court agreed to hear her appeal against dismissal despite the long delay.

The judge who heard the matter, Ruth Chinangwa, said she had to decide whether Chiunjiza was discharged for justifiable reasons, and whether she received ‘procedurally fair administrative action’.

There was no question that the photographs were indeed of Chiunjiza and that they had been taken with her consent. She disputed however that she had circulated them, and said this had been done by a friend.

Discipline

Did that action amount to ‘conduct to the prejudice of good order and discipline’? Did the nude photographs ‘have a direct effect on good order and discipline in the police’, asked the judge.

‘It is this court’s view that men and women in uniform have a call to a higher standard of conduct in the public domain. It is this court’s view that though [Chiunjiza] did not distribute her nude pictures, she availed herself voluntarily to have her nude picture taken.

‘By involving a fellow officer to take a picture of her naked the matter was no longer [Chiunjiza’s] private matter and thus the right to privacy cannot be argued as she voluntarily brought herself into the public domain.

Moral standard

‘Now posing naked in public for one employed in the police service is conduct prejudicing good order and discipline in the police service. Men and women in uniform are called to higher moral standard in the public domain and posing naked in public is unacceptable.’

But procedural fairness, it turned out, was a far more complex question. First, she was called to a disciplinary panel which recommended that she be discharged ‘for being unlikely to become efficient’. This was confirmed by the regional disciplinary committee.

That decision, however, was set aside by the national disciplinary committee which held that she could not be disciplined under the Police Act for ‘acts done before she became a member of the Malawi Police Force’ – if you remember, the photographs were taken while she was a trainee and before she was appointed as a police officer.

Urgency

What was to be done? A senior officer directed the national disciplinary committee to ‘reconvene with utmost urgency’ to rectify the error of law: she was charged again, this time under a different section and her dismissal was recommended, a recommendation confirmed by the Police Service Commission.

According to Judge Chinangwa, that meant the hearing process was ‘clearly flawed’ at four points: there had been inadequate notice; internal interference with a disciplinary hearing process; a disciplinary panel heard the same matter twice resulting in two difference decisions, and a higher disciplinary panel made a decision about the outcome of ‘a lower disciplinary panel was which functus officio.’

Elaborating, the judge said Chiunjiza was given a mere 24 hours’ notice while notice of hearing should have been seven days. Then, the deputy inspector general interfered with the decision of the national disciplinary committee (NDC) when his office gave him no authority to do so. Thanks to that interference, the earlier decision was changed. That was not the correct approach, said the judge. The matter should simply have been sent to the police service commission.

Natural justice

It was also wrong for the NDC to hear the same matter twice. ‘It is against the rules of natural justice for a disciplinary panel to hear the same matter twice.’

Then comes the crunch line: ‘It is paramount that rules of natural justice must be adhered to in full. In this matter the reason for [Chiunjiza’s] discharge was valid, but the hearing process was flawed. The law cannot be adhered to in part.’

For this reason, Chiunjiza’s appeal succeeded. It is not clear from the decision whether the police are now obliged to reinstate her or whether there will be another way of dealing with the outcome.

Carmel Rickard

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