By Pemphero Malimba
The High Court Financial Crimes Division in Lilongwe has dismissed two applications filed by former Reserve Bank of Malawi (RBM) governor Dalitso Kabambe and other accused persons for permanent stay of a case in which they are accused of mismanaging K6.2 billion worth of Covid funds.
In the other application, the accused are citing the issue of abuse of prosecution authority by the State.
Kabambe, Henry Mathanga, Samuel Malitoni, Elvis Thodi, Clif Chiunda and Joseph Mwanamvekha are accused of improperly facilitating a K6.2 billion donation out of RBM funds that were meant for assisting in the 2020-21 Covid response.
Kabambe and others made an application that, having been employees of the central bank at the time the donation was made, they were immune from prosecution based on the provisions of paragraph four of the Code of Conduct under the RBM Act.
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According to State lawyer George Liwimbi, paragraph four of the Code of Conduct stipulates that directors, staff and officers of RBM are immune from criminal prosecution for acts of omissions conducted in the course of their employment unless those acts are done in bad faith
However, the State argued that the Schedule in which the Code of Conduct is contained is made under Section 23 of the RBM Act which provides that there is no immunity for criminal acts or omissions that are committed by the employees or directors and staff of the bank.
The court found that the Code of Conduct is inconsistent with Section 23 of the Act and the accused cannot rely on the immunity of the provision.
The court, therefore, found that the state was entitled to prosecute the accused.
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In the other application, one of the accused persons, Samuel Malitoni, had applied for relief, citing abuse of prosecution authority.
Malitoni, who was then-RBM general counsel and company secretary, had argued that the State had acted deceitfully by initially treating him as a witness and recording statements from him in that capacity before later on changing and charging him with crimes.
Through his counsel Khumbo Bonzoe Soko, Malitoni has argued that the State could not prosecute him when it had initially represented that he would only be a witness and when he had sat down with investigators to assist them in their work.
However, the court found that all rights which were supposed to be accorded to persons when being interviewed or interrogated were accorded to the accused and that he freely cooperated with the State and that the State did not abuse its authority.
Meanwhile, the court has adjourned the matter to October 27, 2025 for the hearing of preliminary objections to the charges and an application for disclosures by Malitoni.
The court has given Malitoni up to October 6, 2025 to file the applications and the State until October 15, 2025 to respond.
Speaking after the ruling, Soko described the ruling as a disappointing outcome.
“We thought that we had given the court enough material to determine the matter in our client’s favour. You see, the will of Parliament is very important … and must be respected, as we argued when the matter was being heard. The will of Parliament must be respected even if the court thinks Parliament could have been more wiser in its enactment.
“In this particular case, there was a very clear intention. Parliament looked at these provisions and decided to provide for immunity of certain public officers who are employed by the Reserve Bank of Malawi and our clients happened to be the beneficiaries of that legislative scheme,” Soko said.
He said the defence would, however, accept the outcome of the case and move on.
“We are back here on the 27th of October, when we will now have to prosecute objections to the charges. In the case of Mr. Malitoni, there will also be disclosures that we are demanding from the Reserve Bank of Malawi. When these things were happening, there was email correspondence and we think these will cast doubt on the veracity of the allegations that have been levelled against our client,” Soko said.
On his part, State lawyer George Liwimbi also said they were ready to respond to the applications.
