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‘Anti-Corruption Bureau can prosecute without Director of Public Prosecutions consent’

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KAMCHEDZERA—The Corrupt Practices
Act appears well balanced

By Deogratias Mmana:

The Corrupt Practices Act (CPA) has some provisions that allows the bureau to go ahead with prosecutions when the Director of Public Prosecutions has not provided consent, Malawi News can report.

But there are conditions, which Members of Parliament want removed.

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And a University of Malawi law lecturer says the Act appears well balanced in providing checks and balances on the matter of the decision to prosecute.

The issue of limitations on the part of the Anti-Corruption Bureau (ACB) to prosecute came to the fore in January when it emerged that Director of Public Prosecutions (DPP) had denied the bureau the consent to prosecute Ashok Nair and four others in a case related to corruption allegations involving businessman Zuneth Sattar.

As a matter of fact, the law still provides the ACB some leeway, amid conditions.

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Here is what the Act says:

Part V1 Section 42 (1) of the act says no prosecution for an offence under Part 1V shall be instituted except by or with the written consent of the Director of Public Prosecutions.

Section 42 (2) says where under subsection (1) the Director of Public Prosecutions withholds consent to any prosecution under this Act, he shall

(a) provide to the Director [of ACB] reasons in writing, devoid of any consideration other than those of fact and the law, for the withholding of consent;

(b) in addition to providing reasons to the Director, inform the Legal Affairs Committee of Parliament of his reason within thirty days of the decision.

Then, Section 42 (3) says the Director of Public Prosecutions shall give consent under subsection (1), or reasons in writing under subsection (2) and in 3 (a) “as the case may be, within thirty days failing which the Director [of ACB] shall be entitled to proceed as if consent to prosecute had been given under subsection (1).

In an interview on Thursday, Malawi Law Society president Patrick Mpaka and University of Malawi law lecturer Garton Kamchedzera confirmed that part of section 42 of the act does give powers to the ACB Director General to prosecute without consent from the DPP.

“There is that room under section 42 but it has its own internal limitations and I suggest you check with ACB itself what practical challenges the provision presents,” Mpaka said.

On his part, Kamchedzera said ACB’s prosecution without the DPP consent is possible under the following conditions:

(a) when the DPP does not respond after 30 days from the day of the request for consent

(b) when the DPP withholds consent but fails to give written reasons,

(c) when reasons for a withheld consent relate to a factor other than fact and law and

(d) when the DPP withholds consent based on facts and the law but does not, within thirty days, inform the Legal Affairs Committee of the decision.

“She [ACB DG Martha Chizuma] is justified only if the 30 days have elapsed,” Kamchedzera said.

He added” “Otherwise the Corrupt Practices Act appears well balanced in providing checks and balances on the matter of the decision to prosecute for an offence under its part 1V.”

Kamchedzera further said: “The ACB must do credible work to warrant likely successful prosecution and the DPP must vet the decision to prosecute only with regard to the facts of the case and the elements of the law allegedly infringed.”

He said 30 days was deemed reasonable enough for the DPP to give consent or withhold it and duly inform the Legal Affairs Committee of Parliament.

Last week, the ACB issued a statement in which it said the bureau was waiting for consent from the DPP to prosecute former Inspector General of Police George Kainja and deputy commissioner of police and service legal officer Mwabi Kaluba.

The two were arrested after being implicated by the bureau in the ongoing businessman Zuneth Sattar corruption investigations.

ACB spokesperson Egrita Ndala said the Corrupt Practices Act does empower the Bureau to use it if the DPP does not respond within the 30 days and not before that.

“The Bureau is handling this case professionally. The public should understand that there are processes that are followed before any operation can be conducted as stipulated by the law.” Ndala said.

Kayuni’s refusal to grant consent to the ACB in January sparked debate with the Legal Affairs Committee of Parliament summoning Minister of Justice Titus Mvalo to discuss the proposal to bring a Private Member’s Bill to amend Section 42 of the Corrupt Practices Act so that the ACB should not be seeking consent from the DPP.

Parliament has since passed a motion allowing the tabling of a Private Members’ Bill which seeks to amend the CPA so that it gives the ACB prosecutorial powers without conditions.

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