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Government drawn into ACB, DPP fallout

Minister meets committee chairperson today

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Justice Minister Titus Mvalo is today expected to meet Legal Affairs Committee (Lac) of Parliament Chairperson Peter Dimba to discuss the proposal to bring a Private Member’s Bill to amend Section 42 of the Corrupt Practices Act (CPA).

The section requires the Anti-Corruption Bureau (ACB) to seek consent from the Director of Public Prosecutions (DPP) before commencing criminal proceedings.

Mvalo told The Daily Times Monday, when asked about what the government was doing in the face of debate on ACB independence, that a meeting was one of the activities lined up.

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“I was supposed to meet him [Dimba] today but I was very busy. I think before I give you my position, I should meet with the chair first.

“So, I will meet him probably Tuesday [today]. It is just a matter of protocol [that I start with him],” he said.

Attorney General Thabo Chakaka Nyirenda, who is the government’s principal legal adviser, said he would be writing the two entities about his position on the matter.

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“My advice will be going directly to them,” he said.

However, Dimba insisted that they expected to bring the Corrupt Practices Amendment Bill to Parliament during the ongoing budget meeting.

He said they would first move a motion to seek leave of the House to bring the bill to Parliament immediately after cluster meetings.

“We will be in clusters for the next two weeks and be back to plenary the following week. We intend to bring a Private Member’s motion that week and the actual bill the other week. In fact, we may bring the bill together with the motion,” he said.

A statement signed by Dimba, following meetings the committee had with DPP Steve Kayuni and ACB Director General Martha Chizuma, indicated that committee members were of the view that the section was an unnecessary hurdle that interferes with the independence of the ACB in the prosecution of cases.

The issue came to light after Kayuni withheld consent from the ACB, which wanted to prosecute Ashok Nair.

The DPP indicated that he needed a whole report to make an informed decision.

Some legal experts have, however, doubted that amending Section 42 of the CPA would yield desired results.

Writing on his Facebook page, lawyer George Kadzipatike said, under Section 99 of the Constitution, the DPP is mandated to exercise sweeping powers to the exclusion of any other person or authority regarding criminal proceedings such as instituting, continuing or discontinuing criminal cases by or against any person or authority.

He said amending Section 42 of the CPA would create equality between the DPP, whose office is created by the Constitution, and the ACB, which is created by an Act of Parliament.

Kadzipatike argues that such equality will defeat provisions of Section 99 of the Constitution, which put the DPP above any person or institution in the management of criminal cases in the country.

“The problem is that even if Parliament amends Section 42 of the CPA to allow the ACB to handle cases without consent from the DPP, that amendment will not bar the DPP from exercising his vast powers granted to him by the supreme law of the land. As such, the DPP will still be at liberty to stop criminal cases filed by the ACB or any other authority in the DPP’s exercise of his constitutional powers under Section 99 of the Constitution. In this way, such amendment of Section 42 of the CPA will be an exercise in futility. From the foregoing discussion, it is clear that Parliament will also be contravening Section 99 of the Constitution,” he said.

Michael Goba Chipeta concurred with Kadzipatike, saying removing the element of consent on the part of the ACB will give the bureau similar powers to those invested in the DPP by the Constitution.

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