The growing controversy surrounding the powers of Malawi’s Director of Public Prosecutions has once again exposed a troubling weakness at the heart of the country’s constitutional architecture. The recent decision by the office of Fostino Maele to discontinue several high-profile corruption cases has ignited a national debate about whether prosecutorial discretion in Malawi has quietly morphed into something far more dangerous — unchecked authority.
Fostino Maele
At the centre of the storm is Section 99 of the Constitution, a provision that grants the Director of Public Prosecutions sweeping powers to institute, take over, and discontinue criminal proceedings at any stage before judgment.
In theory, the provision is designed to protect prosecutorial independence from political interference. In practice, critics argue, it has created one of the most powerful and least scrutinised offices in Malawi’s justice system — an office capable of terminating major corruption prosecutions with little more than a signed certificate.
Recent developments have brought that danger into sharp focus.
The DPP’s office recently discontinued criminal proceedings involving several prominent figures, including former Dalitso Kabambe, as well as cabinet ministers Joseph Mwanamvekha and Jean Sendeza. Also implicated in the withdrawn cases were senior public officials such as Cliff Chiunda and Henry Mathanga.
The abrupt discontinuation of cases that had been before the courts for years has left many Malawians asking an uncomfortable but unavoidable question:
When the prosecutor alone can end prosecutions involving the political elite, who prosecutes the prosecutor?
Legally, the DPP must submit reasons for discontinuing cases to Parliament’s Parliamentary Legal Affairs Committee within ten days.
But this safeguard is largely symbolic.
The committee may review the explanation, but it has no authority to overturn the decision. In other words, oversight exists on paper but evaporates in practice.
This constitutional imbalance creates a deeply troubling reality: the very office meant to defend the rule of law also possesses the unilateral power to terminate cases that test that law.
Legal scholars have long warned that such a framework leaves Malawi’s criminal justice system vulnerable to subtle political manipulation. The risk is not always blatant interference. More often, it appears in quieter forms — selective prosecutions, sudden withdrawals, or procedural delays that slowly drain high-profile cases of momentum.
In such circumstances, accountability does not collapse in the courtroom. It simply dissolves before judgment is ever reached.
Malawi is not alone in grappling with this problem. Across many democracies, prosecutorial independence is balanced by meaningful institutional checks.
Some jurisdictions require judicial approval before corruption prosecutions can be withdrawn. Others subject prosecutorial decisions to review by independent oversight bodies or prosecutorial commissions.
Malawi, however, continues to rely largely on the personal integrity of whoever occupies the office of DPP.
That is a dangerously fragile safeguard for a constitutional democracy.
The issue is not whether the DPP should have discretion. Every prosecutorial system requires a degree of professional judgment. The danger arises when that discretion becomes effectively unchallengeable power.
Public confidence in the justice system rests not only on fairness but also on visibility and accountability. When major corruption prosecutions collapse without full judicial examination, citizens inevitably begin to suspect that justice is negotiable.
And once citizens begin to believe that justice can be negotiated, the rule of law itself begins to erode.
This is why the current debate about the powers of the DPP is far more than a legal dispute among lawyers.
It is a constitutional question about how Malawi protects its democracy.
Without reforms that introduce genuine oversight — whether through judicial review, strengthened parliamentary authority, or independent prosecutorial boards — the office of the DPP will remain trapped at the uneasy intersection of law, politics and public suspicion.
The rule of law cannot survive on trust alone. It must be anchored in systems that make accountability unavoidable.
Until that happens, every discontinued corruption prosecution will continue to provoke the same unsettling question:
