Court slams Colleen Zamba for abuse of power

Faults her for exercising powers that can only be exercised by the President on Chizuma

Declares null and void a criminal case against Chizuma

By Cathy Maulidi:

High Court Judge Mike Tembo has ruled that Secretary to President and Cabinet Colleen Zamba overstepped her authority when she interdicted Anti-Corruption Bureau (ACB) Director General Martha Chizuma.

In February this year, Zamba interdicted Chizuma to pave way for criminal court proceedings in which the ACB Director General was answering two charges of making use of speech to lower authority of a person and prejudicing a person against a party to judicial proceedings in relation to her leaked audio clip.

Though Zamba withdrew the interdiction, the Malawi Law Society (MLS) still moved the court to make some declarations regarding the case, which the lawyers’ body said would set bad precedence if left unchecked.

And in his ruling dated May 5, 2023, Justice Tembo has faulted Zamba for exercising powers that are exercisable by the President only when she interdicted Chizuma.

“This Court has no doubt in its mind and agrees with the claimant (MLS) that the power to suspend or interdict the Director of the ACB is vested in the President of the Republic of Malawi and is exercisable only in circumstances alluded to by the claimant herein, namely, in the public interest.

“The decision of the 3rd defendant [Zamba] interdicting or suspending the Director of ACB from performing functions of the office of Director of ACB is therefore null and void for illegality due to overstepping of authority since the 3rd defendant had no authority whatsoever to suspend the Director of the Anti-Corruption Bureau,” reads the ruling.

According to the ruling, Zamba illegally took the powers of the President under the Corrupt Practices Act.

In its declarations, MLS also asked the court to declare immunity for ACB Director when he/she does something in good faith.

Justice Tembo has declared the immunity for the director saying the Corrupt Practices Act clearly gives immunity to the director when something is done in good faith.

The court has therefore faulted State Prosecutor Levison Mangani for commencing criminal proceedings against Chizuma without addressing the question of immunity of the Director of ACB in terms of her alleged action in relation to the leaked audio.

“It is clear in the premises, that the criminal proceeding commenced by the 1st defendant [State Prosecutor Mangani] before the 2nd defendant [Chief Resident Magistrate] was similarly null and void for having been commenced without addressing the question of immunity,” reads the ruling in part.

The court has described the conduct of Mangani as that with a motive to weaken the independent work of the ACB Director.

Speaking to Malawi News, MLS President Patrick Mpaka expressed excitement that their declarations have been granted.

“It’s a significant contribution to the standards for fighting corruption in the country. The ruling has underlined the immunity and independence of the bureau and that was the center of our case,” he said.

He described the ruling as a significant contribution that the Judiciary has made to defining the standards in constitutionalism and in the fight against corruption.

He said ruling underscores the need for independence of the ACB in its work so that, in the public interest and for the general good, the Bureau can relentlessly and fearlessly pursue the fight against corruption without ACB officials fearing for their survival in office.

“It is also a timely reminder to all public officials to always check that they operate within the parameters of the Constitution and their enabling laws.

“And we hope that while it puts to rest an otherwise needless waste of limited state resources in attacks on ACB, the ruling should embolden the Bureau in terms of serving the ordinary people of Malawi by eradicating high level corruption in our country,” he said.

Lawyer representing the defendants in the case, Chancy Gondwe, said he is consulting his clients on the way forward.

“It’s a watershed decision in terms of the law on Judicial Review proceedings. However, we are liaising with our clients on the other pronouncements made by the Judge.

“At the moment I am in contact with my clients and the Attorney General on how we should proceed in view of this ruling,” he said.