ACB can’t bite, wants to break free

“ACB needs the powers to bite.”

Malawi’s graft bustling body, Anti-Corruption Bureau (ACB) wants to break free and be independent from political interference and relieved of the legal requirement that entails them to seek consent from the office of the Director of the Public Prosecutions (DPP) to prosecute cases.

Recently, ACB conducted interviews to hire a new head after its former boss’s contract expired and Ombudsman Martha Chizuma is tipped to become the next ACB director after she emerged tops from a group of more than 10 men.

In search for total freedom, the corruption-fighting body, ACB, has written the Ministry of Justice and Constitutional Affairs to start a process that would see an amendment of the Corrupt Practices Act which, among other things, be removed could see the removal of that requirement of seeking consent from the DPP to prosecute cases.

Ministry of Justice and Constitutional Affairs spokesperson Pirirani Masanjala responding on the matter, said: “If this is what the people of Malawi want then that is it, we follow what the people want. However, let me it be known that it is not our job to push for an amendment, explaining that the ministry only follows what people of Malawi want.”

“We can only provide guidance when we receive the instructions. I can confirm that the ACB has, as of now, sent instructions [to us] to amend the Corrupt Practices Act,” Masanjala said.

If the ministry succeeds to give guidance, and finally have the Bill tabled in Parliament for amendment of the Corrupt Practices Act, it will be the Bill’s second coming, after it was previously shot down when Democratic Progressive Party (DPP) was in power, using its numerical strength.

Social justice and human rights activist lawyer John-Gift Mwakhwawa said: “ACB needs to have the legal powers and the independence from political interference to be able to be effective. As it stands now, ACB is a toothless bulldog.

“If these two vices were eliminated, ACB could become a biting dog but the requirement to seek consent from the DPP must be removed if justice has to get on the on the wheels.”

This is not the first time that this issue has been brought up as some time not long ago, former MCP legislator and lawyer, Peter Chakwantha tabled a private member bill in parliament that aimed to remove that legal element of always asking for permission in order for the ACB to prosecute suspects but the bill was defeated by the ruling Democratic Progressive Party (DPP).

“I saw this legal hiccup a long time ago and I did all I could to change the situation, but I faced a lot of opposition. The government at the time didn’t want that to happen, they didn’t want the amendment, and so they ganged up against me and in the end the bill was thrown out. ACB needs the powers to bite.”

Another lawyer, Khumbo Soko, said: the consent requirement should be removed as he finds it unnecessary and resource-wasting. “The Constitution already gives the DPP powers to take over and discontinue a case that has been instituted by other prosecutors subordinate to him/her. This, in my view, is a sufficient control that the DPP has over prosecutions.

“In the event that the ACB institutes a prosecution that the DPP finds to be inappropriate, he/she can discontinue it. [Former DPP] Mary Kachale did this in the [Ken] Msonda case,” Soko said.

On funding, which is another hindrance to ACB’s operations, Soko said it was ultimately a question of political will “because no law can fix that”.

“Parliament will have to be willing to appropriate enough funding to the ACB and the Treasury must be willing to obey the law and follow through on the appropriation,” he said.

Danwood Chirwa, Malawian law professor based at the University of Cape Town in South Africa, said there are other reasons that make corruption fight in Malawi difficult, or impossible.

Chirwa said the main reasons are political interference in the work of the ACB, incompetence of some directors and personnel within the ACB, government starvation of the ACB of the much-needed resources, and endemic corruption involving politicians.

“The volume of criminality is simply too much. The rule of law depends on most citizens, including especially those in power, obeying the law and only very few disobeying it.

No country, Chirwa said, can effectively combat criminality in such a situation, especially where the political elite are the masterminds of crime as is the case in Malawi.

“And in short, the proposed legislative amendments are something nice to have, not essential. They won’t make a difference,” he warned.

MLS president Patrick Mpaka said the requirement for the DPP consent in Section 42 of the Corrupt Practices Act sits very well with constitutional setting where the DPP is the ultimate authority for criminal prosecution.

“Under that setting, if the DPP withholds consent he or she is duty-bound to give written reasons for such decision. If the DPP does not give reasons within 30 days, ACB is entitled to proceed as if consent has been given,” Mpaka said.

Mpaka said, if the players are operating according to the constitutional parameters of transparent governance, it cannot be said that the question of the DPP consent could stand in the way of criminal prosecution if the nation is determined to fight corruption according to law.

“Let us not waste time finding excuses. We can easily fight corruption even under the current legal framework if as a people we have the right attitude and if we have the political will to,” he said.

As it was previously arranged, the Bill sought to amend the Corrupt Practices Act, Cap. 7:04 of laws of Malawi (the “Act”) in order to enhance the independence of the operations of the ACB.

As Clerk of Parliament Fiona Kalemba had put it in the notice, the enhancement of the independence was to be achieved through amending Sections 5 and 7 of the Act by replacing the President with the Public Appointments Committee as appointing authority of the Director and Deputy Director of the ACB, respectively.

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