To prosecute or not prosecute

Martha Kaukonde

The recent provision allowing ACB to prosecute without seeking consent from the DPP is facing a test following a lawsuit challenging it. Does that mean that ACB cannot prosecute during the period the matter is in court?

By Deogratias Mmana:

The Anti-Corruption Bureau (ACB) is by no means being stopped from prosecuting its cases by a recent lawsuit, several legal minds have told Malawi News.

The Human Rights Consultative Committee (HRCC) has sued President Lazarus Chakwera and Speaker of Parliament Catherine Gotani Hara over the deliberating, passing and then the eventual assenting to of the amended Corrupt Practices Act (CPA).


The recent amendment to the law empowers the ACB to prosecute cases without having to seek permission from the Director of Public Prosecutions (DPP).

There have been fears however that the court challenge against the provision means the ACB is back to the old state of affairs where it would prosecute only after DPP consent.

However, in separate interviews on the sidelines of the 2023 annual general meeting for Women Lawyers Association (WLA) on Thursday in Lilongwe, several lawyers said in the absence of an injunction, the court challenge does not bar ACB from acting as provided in the amended law.


University of Malawi associate professor Ngeyi Kanyongolo said unless there is a court injunction after the HRCC filed for the judicial review of the matter, the ACB is not barred from prosecuting cases it has without consent from the DPP.

Another lawyer, Martha Kaukonde who is a board member of WLA, also said at the moment, the lawsuit does not prevent the ACB from prosecuting cases which have no consent from the DPP.

“The ACB can prosecute,” Kaukonde said in a brief response.

ACB Director General Martha Chizuma, who was also available at the function, said that the lawsuit currently has no impact on prosecution of cases which have no consent from the DPP.

“We can prosecute,” Chizuma said, refusing to comment further on the matter and other issues around her and her office.

Lawyer representing HRCC, George Kadzipatike, confirmed filing an application for judicial review before the High Court in Lilongwe.

Hearing of HRCC’s applications for permission to apply for the judicial review and for an interlocutory relief is set for March 17, 2023 according to court documents.

The CPA became the centre of attention last year after the then DPP Steven Kayuni withheld his consent for the ACB to prosecute businessperson Ashok Nair.

The withholding of the consent compelled stakeholders such as Malawi Law Society and the Legal Affairs Committee of Parliament to push for the amendment of the CPA so that ACB could prosecute cases without seeking the DPP’s consent.

In July last year, Parliament passed the amended Act before Chakwera assented to it in September.

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