• June 30, 2022 2:28 pm

Justice Mwaungulu joins joins calls against haphazard independence to ACB

Feb 20, 2022

By Malawi Exclusive

Retired Justice of the Malawi Supreme Court of Appeal, Dunstain Mwaungulu, has joined a host of the country’s great legal minds in questioning the rationale behind taking away powers from the Director of Public Prosecutions (DPP) in giving prosecutorial consent to Anti Corruption Bureau (ACB).

The Legal Affairs Committee of Parliament 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.

Mwaungulu, now director at Centre for Law and Policy, has highlighted that it is wrong to amend pieces of law just to suit specific individuals in a particular moment of time.
The judge faults the decisions around this issue by Parliament which he views as knee-jerk.

“They want to change the law because of one case. If a different situation arose, they would think the law is right this time.”
His premise, which has been supported by many, is that ACB director Martha Chizuma is using a sympathy canvassing among members of the Legal Affairs Committee of Parliament to get things her way.

Since the office of the DPP refused to give Chizuma consent to prosecute one Ashok Nair for lack of a comprehensive investigative report she has gone to town to paint the current office bearer, Steven Kayuni, as a retrogressive element in the fight against corruption.

Justice Mwaungulu that “The DPP cannot consent to prosecution of a corruption case that is badly investigated or poorly prepared. Situational amendment of legislation (and the Constitution), however popular, is the real threat to constitutionalism and breeds undemocratic postures that lead to tyranny of the majority.

Just imagine that the Parliamentary Legal Affairs Committee, just because of one case, one ACB Director, one President wants to subvert a clear constitutional posture that the Director of Public Prosecution is the sole authority on prosecutions.”
He likens the situation to an example of giving the President all executive power and then stating that a minister can act independently of the President.
“That must be surprising, to put it lightly and politely.”

He goes on to school Malawians on the power play between the ACB and other institutions in accordance with the law of the land.
“The ACB has sufficient power and that power is controlled power because it is delegated power. Delegated power cannot be uncontrolled. The legislature would be acting against the Constitution by removing the DPP’s constitutional authority.

Mwaungulu also wonders how and why Parliament is fighting battles not within their jurisdiction.

“So the legislative branch now joins the executive branch in the latter’s fight against an independent and impartial Directorate of Public Prosecutions,” queries Mwaungulu.

Other lawyers who have questioned Legal Affairs Committee move include George Kadzipatike, Kamudoni Nyasulu, Garton Kamchedzera, former Attorney General Charles Mahngo and John Gift Mwakhwawa among others.
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