The Human Rights Consultative Committee (HRCC) has sued President Lazarus Chakwera and Speaker of Parliament Catherine Gotani Hara over the deliberating, passing and assenting to of the amended Corrupt Practices Act (CPA).
For the larger part of early last year, the law became the centre of attention after the then-Director of Public Prosecutions (DPP) Steven Kayuni withheld his consent for the Anti- Corruption Bureau (ACB) to prosecute businessperson Ashok Nair.
The withholding of the consent compelled stakeholders such as the Malawi Law Society (MLS) and the Legal Affairs Committee of Parliament to push for the amendment of the CPA so that ACB could prosecute cases without seeking the DPP’s consent.
In July last year, Parliament passed the amended Act before Chakwera assented to it in September.
Now, court documents in our possession indicate that HRCC wants Chakwera’s decision and that of the Speaker to undergo a judicial review test.
Lawyer representing the organisation George Kadzipatike confirmed filing an application for judicial review before the High Court in Lilongwe.
“The first application we made in court was to be allowed to move for judicial review out of time, as judicial review is commenced within three months of the decision. The court granted us extension of time,” Kadzipatike said.
Hearing of HRCC’s applications for permission to apply for the judicial review and for an interlocutory relief is set for March 17 2023, according to court documents.
Kadzipatike said if the court allows his client to file the actual judicial review, they also want the court to stop the implementation of the amended CPA.
“That amendment is clearly unconstitutional and unreasonable. By allowing [ACB] to prosecute cases without the consent of the [DPP], Parliament created a parallel head of criminal prosecutions to the [DPP] when the Constitution of Malawi only recognises one central office of criminal prosecutions in the country,” Kadzipatike argued.
CHRR says in its submissions that allowing ACB to prosecute cases without the DPP’s consent is inconsistent with Section 99 of the Constitution.
Among others, the said section says the DPP shall have power in any criminal case in which he or she considers it desirable so to do and to take over and continue any criminal proceedings.
“Subject to Section 101 (2), the powers conferred on the Director of Public Prosecutions by subsection (2) (b) and (c) shall be vested in him or her to the exclusion of any other person or authority…,” Subsection 3 reads.
HRCC also argues that the amendment erroneously raised the status of the ACB director general to be at par with the DPP regarding offences under the CPA when the Constitution had not been amended to that effect.
“Alternatively, the claimant shall be asking the court to refer the matter to the Chief Justice for certification according to Order 17 Rule 7(1) of the [Criminal Procedure Rules] where the issues relate to the application and interpretation of the provisions of the Constitution,” the submissions read.
MLS backed the amendment of the CPA, saying the move would give ACB real independence.
MLS President Patrick Mpaka disagreed with arguments that giving the bureau more powers would contravene Section 99 of the Constitution.
“Section 99 of the country’s Constitution does not say anything about DPP consent to prosecute. Section 99 recognises that other authorities can institute and undertake criminal proceedings.
“The only overarching power that the DPP is given by Section 99 of the Constitution is the power to withdraw or discontinue or take over any criminal proceedings by whoever instituted them.
“And the DPP is required to give reasons to the Legal Affairs Committee of Parliament within 10 days if he exercises such overarching power,” Mpaka said that time, before the CPA was amended.
Both Chakwera and Gotani Hara are supposed to be represented in the case by the office of the Attorney General (AG).
AG Thabo Chakaka Nyirenda yesterday referred us to Ministry of Justice spokesperson Pirirani Masanjala for a comment on the case.
“I need to peruse through the [court] documents, but I am currently in a meeting which is equally important,” Nyirenda said.
We had not managed to get a comment from Masanjala by press time yesterday, as his mobile phone number was out of reach.
After the Act had been amended, Justice Minister Titus Mvalo said the move was a sign that government was committed to fighting corruption.
