By Mapwiya Muulupale
I beg to move that “considering the various challenges encountered by the Anti-Corruption Bureau in the prosecution of cases, this House resolves that a Private Member’s Bill be drafted to amend the Corrupt Practices Act to strengthen and enhance the independence of the ACB in the prosecution of cases.” – Hon AC Songwe, MP Likoma Islands
This historic motion by Honourable Ashems Christopher Songwe on behalf of the Legal Affairs Committee of Parliament was overwhelmingly adopted by Malawi Parliament on Thursday, 21 July 2022.
Although it was adopted in a “bipartisan” manner, i.e. moved by a Malawi Congress Party (MCP) parliamentarian, it was eloquently sold to the opposition benches by a Democratic Progressive Party (DPP) parliamentarian; the dust is yet to settle among the general public.
Please don’t get me wrong; this amendment is as long overdue as the Corrupt Practices Act itself for an overwhelming majority. For this school of thought, the section proposed to be repealed should have never found itself in this act.
For a minority, the contentious Sections 10(f) and 42 should stay as is. Listening around, I have only heard two strong reasons why this section should be left intact.
The first one is fear of abuse. What if a rogue ACB Director-General comes and uses the ACB to settle personal scores by dragging real or perceived foes to court.
Who will be safe? Hence Sections 10(f) and 42 serve as a mechanism for checks and balances.
The second one is the pursuit of the four-eyes principle. That is to say, a review by a second person, in this case, the Director of Public Prosecutions, helps identify and rectify human errors of judgement which we can all be prone to at times.
This argument is, in fact, very persuasive. And let me start with this one. If you read The Daily Times of 3 March 2022, you may note that Norman Chisale, former president Peter Mutharika’s bodyguard, is demanding K500 million from the Attorney General as damages for false imprisonment, malicious prosecution and defamation.
This follows his acquittal on 16 April 2021, after the High Court found him with no case to answer on charges that he had intentionally shot at a woman. Judge Sylvester Kalembera stated in his ruling that the State failed to provide evidence that Chisale intended to kill Sigele Amani in Blantyre in 2020.
Had the four eyes principle been observed, or better still, if whosoever was prosecuting this case was up to the task, they could have known and done better.
If Mr Chisale is awarded the MK500 million, the Director of Public Prosecutions should forward the bill to whosoever messed up because the acquittal implies that the case should have been avoided or amicably resolved once it began to turn sour.
Hence, were the four eyes principle applied, Mr Chisale wouldn’t be asking for MK500 million.
Coming to the first reason for maintaining Sections 10(f) and 42 of the Corrupt Practices Act, i.e. the fear that corruption prosecutions could be abused, I do not see how.
a) just like in the Republic vs Norman Chisale, the courts would see through the buffoonery and acquit the victim; and
b) even without having Sections 10(f) and 42 in the Corrupt Practices Act, the Director of Public Prosecutions is mandated via Sections 99 and 100 in the Constitution to “take over and continue any criminal proceedings which have been instituted or undertaken by any other person or authority; and subject to subsection (5) to discontinue at any stage before judgment is delivered any criminal proceedings instituted or undertaken by himself or herself or any other person or authority”.
With the Constitution being the supreme law of the land already conferring these powers to the Director of Public Prosecutions, there is no logical need to infringe on the independence of the ACB by having and maintaining Sections 10(f) and 42 because an efficient Director of Public Prosecutions should not be wasting valuable time on subordinate legislation.
It is probably for this reason that the Director of Public Prosecutions does not give case-by-case consent to police prosecutors who, ironically, unlike the ACB Director General and despite being far junior to the ACB Director General, pursue prosecution with complete autonomy. The Director of Public Prosecutions only steps in to bring sanity when and where they err.
You are wondering why the powers that be and their apologists are not too keen to repeal Sections 10(f) and 42?
a) Fear of transparency:
The problem that the powers that be have with repealing these sections is that it will facilitate transparency which they want to avoid at all costs.
The framers of the Constitution foresaw this, and under Section 100 of the Constitution, they embedded checks and balances on the Director of Public Prosecution.
Under Section 100, the Director of Public Prosecutionsmust report to the Parliamentary Legal Affairs Committee reasons for discontinuing an ongoing prosecution by another delegated body like ACB.
As is the case now, in the CPA – by hiding under Sections 10(f) and 42 – the Director of Public Prosecutions can hound, harass and torture delegated bodies like the ACB without being accountable to Parliament through the Legal Affairs Committee.
b) To give political leadership a backdoor entrance:
Unlike the ACB Director General, who heads an autonomous institution, the ACB, the Director of Public Prosecutions, operates under the Attorney General and the Minister of Justice, who ‘serve at the pleasure of the president’ as political appointees.
Hence, they and their appointing authority currently use the hapless Director of Public Prosecutions as a cat’s paw when interfering with the ACB to protect sacred cows or go after political opponents.
Otherwise, the proposed amendment is not, I repeat, NOT infringing on any constitutional provision at all.
The only problem it poses to the powers that be – especially now with Sattar’s scandal – is that getting rid of Sections 10(f) and 42 will make it much more difficult for ruling politicians to continue the games they are playing with the ACB in Ashok Nair’s case.
To conclude, the proposed amendment will force the Director of Public Prosecutions to exercise his powers professionally and transparently and, where necessary to intervene, justify such intrusion to the voters via their elected officials in Parliament’s Legal Affairs Committee. Therefore, Honorable Ashems Christopher Songwe MP is darn right saying that passing this bill will be Malawi’s finest hour.
In light of the aforegoing Madam Speaker, I Mapwiya Muulupale unreservedly second the motion and wholeheartedly support the proposed bill.
Viva Legal Affairs Committee of Parliament!