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    RELATING TO THE DISCONTINUANCE OF BAKILI MULUZI CASE – QUEEN’S BENCH OPINES

    “In the aftermath of the decision by the State to discontinue the corruption case and drop all charges against former President Bakili Muluzi, a host of legal minds have weighed in on the decision from varying angles. Below is what renowned legal and governance think tank, Queen’s Bench, has said.”

    Uninformed opinion and incorrectly-influenced perceptions have started making rounds relating to the discontinuance of the case involving charges levelled against the former President, Dr. Bakili Muluzi.

    While others are suggesting that the State President has no authority to discontinue or order a discontinuance of any criminal case in court, others are claiming that the President has discontinued the case owing to a good political relationship and tolerance that President Chakwera and President Muluzi are apparently enjoying between themselves. It is the latter school of thought that has caused this post.

    The issue is about misinformed perception which is accommodating ill-conceived opinion which this post purports to address.

    To begin with, those asserting that the President has no legal authority to discontinue or cause discontinuance of any criminal case that is in court against any person are very much correct.

    We can, therefore, rest assured that the discontinuance itself has not come from the President or has nothing to do with the incumbent President. This is, therefore, to rubbish the view that the President has favoured his apparent political buddy (who is former President of the Republic) with the said discontinuance of his criminal case.

    As, actually, confirmed by the Government Minister of Information, Hon. Moses Kalongashasha Kunkuyu, the discontinuance has been advised by the Director of Public Prosecutions. I will proceed to specify that the discontinuance has been ordered by the court through a certificate of such discontinuance having been filed by the Director of Public Prosecutions. Now let us deal with this part:

    The Constitution of the Republic of Malawi, under section 99(2) gives power to the Director of Public Prosecutions to discontinue any criminal case when his opinion holds it that it is desirable to do so. From this, we, therefore, see that it is within the constitutional power of the Director of Public Prosecutions to do what he has done.

    What amounts to justification of such desirability may include lack of sufficient evidence to prosecute the matter such that proceeding with prosecution without proper evidence may translate into either malicious prosecution or frantic waste of public resources or indeed both. I suggest.

    I have benefitted the communication by Government informing that the decision by the Director of Public Prosecutions to discontinue the case has trailed his review of the case which, I am free to conclude that he found it less probable for the case (which has dragged on for 14 years and mostly lacked sufficient evidence) to be successfully prosecution.

    It is proper, therefore, to isolate the President from the constitutional decision that the Director of Public Prosecutions has made. For avoidance of any doubt, section 99(3) of the Constitution excludes any other authority, or to put it in better context: frees the Director of Public Prosecutions from filing the certificate of discontinuance based on orders from any authority, except that the Attorney General may provide general or specific instructions on the same (see section 101(2) of the Constitution).

    Another important limiting factor, which in my view is designed by genes of justice, is that the Director of Public Prosecutions, may not discontinue a case which involves an appeal by the convicted person. To illustrate this point, let assume that the former President was tried and convicted by a competent court of law and that now he is appealing against either his conviction or sentencing or both (see section 99(5) of the Constitution).

    Why is that so? The point is: with malicious intent of avoiding that appeal and maintain the conviction against that person, the Director of Public Prosecutions may be tempted to invoke his constitutional powers to discontinue that case. The law says no to that scenario, thereby guarding the interests of the accused satisfactorily. This entails justice in my view.


    Queens Bench

    29.05.2023

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