Justice system on trial: Malawi deserves answers, not silence

The Malawi Law Society’s decision to publicly challenge Director of Public Prosecutions Fostino Maele over the discontinuation of a string of high-profile criminal cases deserves the full attention of every Malawian who still believes in the rule of law.

To be clear, the Society is right to acknowledge upfront that the Constitution grants the DPP wide prosecutorial discretion. That discretion exists for good reason — not every case that reaches a prosecutor’s desk deserves to go to trial, and not every complaint survives the weight of evidence. A DPP who mechanically pursued every case regardless of merit would be just as dangerous as one accused of selective leniency.

But discretion is not the same as immunity from scrutiny. And it is precisely because prosecutorial power is so consequential — the power to pursue justice or to quietly let it slip away — that it must be exercised, and be seen to be exercised, without fear or favour.

That is where this episode becomes troubling. The Law Society’s claim that many of the discontinued cases involve individuals either politically aligned with the current government or previously represented by Mr Maele himself before he assumed office is not a small allegation. It goes to the very heart of what separates a functioning justice system from one that merely wears its robes.

Coming as it does around the commemoration of Malawi’s 62nd independence anniversary, the timing of the Society’s statement carries symbolic weight. Independence was never only about the removal of a colonial flag; it was a promise that Malawians would govern themselves under laws applied equally to all — the powerful and the powerless alike. A justice system that appears to bend around political connection or personal history undermines that very promise, whether or not any individual decision was, in fact, improperly influenced.

This is not, and should not be treated as, a declaration of guilt against the DPP. Mr Maele is entitled to explain his reasoning, case by case, and the public deserves to hear that explanation rather than be left to speculate. Silence, in matters like this, breeds far more suspicion than transparency ever could.

What this moment calls for is not condemnation, but accountability. The DPP’s office should welcome the opportunity to demonstrate — with evidence, not assurances — that these decisions were made on their legal merits and nothing else. Anything less risks confirming the very perception the Law Society has now put on the record: that in Malawi, whom you know, or whom you once represented, may matter more than what the law says.

Sixty-two years after independence, that is a test our institutions can still choose to pass.