By Deogratias Mmana:
The High Court has granted a judicial review to former and suspended employees of the Malawi Communications Regulatory Authority (Macra).
The suspended employees were arrested and are facing prosecution for allegedly abusing office in the procurement of a K277.2 million equipment for the Malawi University of Business and Applied Sciences (Mubas).
They formed part of the Internal Procurement and Disposal Committee (IPDC) for Macra. They are Fegus Lipenga, Elvin Mwapasa, Ben Chitsonga, Grace Kaphale and Edson Makobili.
The five protested the decision to arrest and prosecute them by the officer in charge of Fiscal Police and police regional prosecutions officer for South West region.
Through their lawyer, Clement Mwala, the five challenge the decision and exercise of powers by the police to arrest, charge and prosecute them for offences under the Public Procurement and Disposal of Public Assets Act.
It is about their decision as members of the IPDC to award the contract to Thengo Investments.
They argued that the same officers in that capacity and during the same IPDC meeting held on November 12, 2021 awarded other contracts to Outer Space and to Toyota Malawi.
They question the decision by the police to arrest and prosecute them for awarding a deal to Thengo Investments while ignoring the procurement award of the motor vehicle for the Director General of Macra, a Toyota Prado 2.8 TD Auto VXL.2800.
According to Judge Jack N’riva’s ruling made on August 31, 2023, the claimants applied for judicial review.
They asked the court to declare that the decision by the police to arrest, charge and prosecute them on the matter was in bad faith, discriminatory and unconstitutional.
They also question the decision by the police to leave out other members of the IPDC who participated in the award of the contract to Thengo Investments.
“In all the circumstances of the case, a declaration that the decision by the defendants to arrest, charge, and prosecute, the claimants for the offences of unlawful conduct by a public official under the PPDA Act, and for abuse of office under section 95 of the Penal Code is unconstitutional, unlawful, unreasonable in the Wednesbury sense, irrational and hence ultravires,” reads the ruling.
According to the ruling, Mwala argued that there was desirability of an authoritative ruling on the conduct of the Malawi Police Service on how they discharged their duties of arrest and prosecution.
Lawyer for the defendants, Neverson Chisiza, from the Ministry of Justice argued that the employees had alternative remedies in the criminal trial network.
He argued that their application for permission to commence judicial review should be dismissed.
But in ruling Judge N’riva grants the application.
“Having listened to both parties, I form the opinion that this is a matter in which the allegations against the defendant may as well be said to raise issues of untoward, illegal or unconstitutional conduct on the part of the defendants.
“At this stage, I need not to look at the points to a great detail. However, it appears to me that, on the law, this is a matter that may be subject to judicial review.
“In the circumstances, the court proceeds to grant permission for judicial review. The court further stays the decisions by the defendants until the final disposal of the application of the application for judicial review…”
In an interview yesterday, Mwala said the ruling is the first step in the process of challenging the arrest and criminal proceedings his clients are going through.
“Our view is that the said proceedings were wrongly commenced,” Mwala said.
Chisiza referred us to Attorney General Thabo Chakaka Nyirenda but his phones were off when we called them.
