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    PARLIAMENT’S STAND ON ACB INDEPENDENCE LEGALLY WRONG – EXPERTS

    Legal experts in the country have faulted the intention by the Legal Affairs Committee of Parliament to limit the powers the Director of Public Prosecution from giving consent of prosecution to the Anti Corruption Bureau.

    The Committee is seeking to amend section 42 of the Corrupt Practices Act (CPA). Section 42(1) of the CPA that requires the Director of the Anti-Corruption Bureau (ACB) to seek consent from the Director of Public Prosecutions (DPP) before commencing prosecution of cases.

    This decision follows meetings the committee has had with both the DPP Steve Kayuni, and ACB director Martha Chizuma to understand what forced the former to deny ACB consent to prosecute Ashok Nair who the bureau arrested in connection to Zuneith Sattar’s case.

    Kadzipatike: The intended legal amendment alone has no legal basis

    When he appeared before Parliament last month, Kayuni informed the committee of the reasons that forced him to deny consent to ACB. Some of the reasons were that the bureau rushed to seek consent without doing proper investigations.

    Mzuzu based lawyer, George Kadzipatike, says the intention of the Legal Affairs Committee has no legal basis as it contradicts other legal statutes like Section 99 of the Constitution.

    “Under section 99 of the Constitution, the DPP has sweeping powers across every criminal case instituted against any person by any person or authority in Malawi. The meaning of section 99 of the Constitution is that there is no other institution or person who can control criminal cases in Malawi with the same force as the DPP,” writes Kadzipatike.

    He argues that amending Section 42 of the CPA will cause confusion and defeat the provisions of Section 99 of the Constitution which currently puts the DPP above any person or institution in the management of criminal cases across the country.

    “Amending the section will cause the ACB to be somewhat at par with the DPP as the ACB will be as independent as the DPP in the conduct of criminal cases. Such amendment will create equality between the DPP whose office is created by the Constitution and the ACB which is created by an Act of Parliament inferior to the Constitution.”

    Kamudoni Nyasulu: The decision is populist

    Kadzipatike further contends that if Parliament wants to amend the Corrupt Practices Act then it must first address the other legal precepts that are constitutionally superior.

    “That amendment will not bar the DPP from exercising his vast powers granted to him by the supreme law of the land. As such, the DPP will still be at liberty to stop criminal cases filed by the ACB or any other authority, in the DPP’s exercise of his constitutional powers under section 99 of the Constitution. Parliament will also be contravening section 99 of the Constitution if it allows some authority like the ACB to be independent from the DPP in the enforcement of criminal law in Malawi,” says Kadzipatike.

    Other prominent lawyers in the country have also questioned the rationale behind amending a law to address or suit personalities as is the case now where Chizuma seems to personalize the denial of consent as victimization.

    Seasoned practicing lawyers and scholars such as Kamudoni Nyasulu, Garton Kamchedzera, former Attorney General Charles Mahngo and John Gift Mwakhwawa granting independence of prosecutorial powers to the ACB may be abused by people holding the office if they have axes to grind with other people.

    Kamchedzera: Has joined his fellows in discrediting the intended amendment

    Chizuma’s recent conduct is a worry in view of these impending amendments as she has shown lack of capacity and professionalism in handling the bureau affairs.

    Since she assumed office last year April she has chosen to operate in isolation disregarding administrative and legal advice from both the DPP and Attorney General’s office. She has, however, found solace in social media influencers and personal friends with whom she shares sensitive information around ongoing investigations.

    Many Malawians also feel the stand taken by the Legal Affairs Committee is only populist in nature but lacks legal backing. They propose that what the committee needs to do is enhance coordination between the ACB and DPP so that they achieve more in the fight against corruption.

     

     

     

     

     

     

     

     

     

     

     

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