Drama rages on Martha Chizuma
Law experts differ on decision
By Taonga Sabola, Rebecca Chimjeka & Serah Chilora:
Secretary to the President and Cabinet (SPC) Colleen Zamba Tuesday interdicted Anti-Corruption Bureau (ACB) Director General Martha Chizuma, a development that has attracted mixed views.
A letter from the SPC indicates that the move has been taken due to what she has described as serious misconduct regarding a case Chizuma is answering regarding a leaked audio.
But the Malawi Law Society (MLS) Tuesday described the letter from the SPC as seriously misguided.
According to Zamba, Chizuma has been interdicted on full pay with effect from January 31 2023 up until the conclusion of the case.
The interdiction comes barely 13 days after President Lazarus Chakwera stood by his decision to not fire Chizuma over a leaked audio in which the ACB chief was heard discussing office matters with an unknown person in a telephone conversation in January last year.
The interdiction also comes barely a day after the Public Appointments Committee of Parliament confirmed Hillary Chilomba as ACB Deputy Director General.
Former Director of Public Prosecutions Steven Kayuni, High Court Judge Simeon Mdeza, businessman Zuneth Sattar’s close associate Ashok Kumar Sreedharan and Frighton Phompho have dragged Chizuma to court over allegations made in the audio.
In a letter dated January 31 2023 to Chizuma, Zamba said she has received a report of the Criminal Court Case, Number 236 of 2023, sitting before the Chief Resident Magistrate in Lilongwe, where Chizuma is answering criminal libel charges which constitute a serious misconduct.
According to Zamba, Chizuma is answering charges of making use of speech calculated to lower the authority of a person before whom a judicial proceeding is being had, in line with Section 113 (d) of the Penal Code.
The SPC said the second charge that Chizuma is answering is with regards to making use of speech capable of prejudicing a person against a party to judicial proceedings, in line with Section 113 (d) of the Penal Code.
“Please note that the above allegations constitute serious misconduct of a public officer and an Anti- Corruption Bureau official in terms of Section 498 of the Corrupt Practices (Amendment) Act 2004, Anti-Corruption Bureau Standing Order Numbers D/18 (2) and D/18 (9): Sections 4 (4.5), 6 (6.1), 6 (6.3) and 14 (14.1) of Code of Conduct and Ethical Behaviour of the Anti- Corruption Bureau, Malawi Public Service Regulations (MPSR) 1:201 (6), 1 201 (11),1.201 (17) and 1 201 (19) and Contract Clause Articles I and II of your employment contract of 1 June 2021.
“In view of this, and in accordance with the Malawi Public Service Commission Regulation 42 (3) as read with Regulation 40, you are interdicted from exercising the powers and functions of your office as Director of the Anti- Corruption Bureau (Grade 1/C) effective 31 January 2023, with full pay,” Zamba says.
According to Zamba, following the interdiction, Chizuma shall cease to exercise any powers and functions of her office and shall not leave Malawi without written permission.
Meanwhile, the Malawi Law Society (MLS) has questioned the decision to interdict Chizuma.
MLS President Patrick Mpaka said the letter has probably been issued without considering issues such as jurisdiction and independence of the bureau.
“Due to the need for independence of the office of the ACB DG, [which is] under Section 4(3) of the Corrupt Practices Act.
“In Section 6(2) and (3), [the law] provides that the power to suspend or remove the ACB DG is in the President and the only reason is that it must be desirable in the public interest so to do.
“The letter in circulation does not make reference to the Act nor the reason under the Act. It should be doubtful if it has been authorised by the only authority that can suspend the ACB DG because, ordinarily, the President should know that the situation is well guided by the Corrupt Practices Act and I think the President understands this, if you listened to his speech of 24 January 2022,” Mpaka said.
However, private practice lawyer George Jivason Kadzipatike said it is normal for a person working in the public service to be interdicted if they are answering criminal charges in court.
According to Kadzipatike, one would not expect the ACB director to be an exception.
“It was going to be awkward if government allowed her to continue working while answering criminal charges. People should differentiate the office of the Vice President, which is regulated by the Constitution, from the office of a public servant, like Chizuma.
“Under Section 6(3) of the Corrupt Practices Act, it is the President who has the mandate to suspend the ACB Director,” Kadzipatike said.
Chizuma did not answer her phone when called for a comment.