The Malawi Law Society (MLS) has backed propositions to amend Section 42 of the Corrupt Practices Act (CPA), saying the move would give the Anti- Corruption Bureau (ACB) real independence.
The Legal Affairs Committee of Parliament, led by its chairperson Peter Dimba, wants to bring to Parliament a Private Member’s Bill to amend the provision that requires the ACB to be seeking consent from the Director of Public Prosecutions (DPP) before instituting criminal proceedings.
However, MLS President Patrick Mpaka has a contrary opinion to what other legal experts are saying that the move would contravene Section 99 of the Republican Constitution.
He said the need for consent did not stem from Section 99 of the Constitution, adding that Section 99 recognises the fact that other authorities can institute criminal proceedings.
“Section 99 of the country’s constitution does not say anything about DPP consent to prosecute. Section 99 recognises that other authorities can institute and undertake criminal proceedings. The only overarching power that the DPP is given by Section 99 of the Constitution is the power to withdraw or discontinue or take over any criminal proceedings by whoever instituted them. And the DPP is required to give reasons to the Legal Affairs Committee of Parliament within 10 days if he exercises such overarching power.
“This overarching power of the DPP is recognised in the CPA by Section 10(1)(f) but that has
nothing to do with the initial decision by any prosecution authority, such as ACB, to institute criminal proceedings nor does it have anything to do with consent to prosecute. So, Section 99 of the Constitution cannot form a basis for objecting to calls for removal of Section 42 from the CPA if that removal is deemed necessary,” Mpaka said.
He said the requirement of consent from the DPP takes away with one hand what the same CPA Section 4(3) gives to the bureau, which is exercising its powers and functions independent of the direction of any person or authority.
“Given the unique and special and broader purpose of the anti-corruption law as outlined in Section 10, 11 and 12 of the Corrupt Practices Act, and given the role which that specific anti-corruption law plays in advancing the developmental and economic needs of ordinary people, this proposed amendment would be a move in the right direction to invigorate the fight against corruption and to accord real independence to the ACB in the nation’s quest to curb corruption in high places.
“So, in our view, there is nothing inconsistent with the Constitution if CPA Section 42 were repealed. The constitutional checks and balances between the DPP, ACB and Legal Affairs Committee, as set out in the Constitution [in] Section 99, as read with CPA Section 10(1) (f), would remain intact even if Section 42 of the CPA were removed,” he said.
This comes at a time other lawyers claim that the proposed amendment goes against principles of the Constitution, which makes the DPP custodian of all criminal proceedings in the country.
George Kadzipatike 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— inferior to the Constitution.
Justice Minister Titus Mvalo this week told The Daily Times that the government would opt to wait and implement a National Prosecution Policy, which would be a benchmark for making a number of criminal prosecution law amendments to make them in sync.
Attorney General Thabo Chakaka Nyirenda said recently that he would write both the ACB and Parliament on the same.