The discussion around the independence of the Anti-Corruption Bureau has raged on for more than 20 years. I first raised the issue in 2001 when I wrote an article in Nation Newspaper of 28 November on My Turn page under the headline ‘Corrupt Practices Act review overdue.’
I called on MPs to review the act to make the ACB independent both in prosecution and the appointment of the ACB director.
ACB advisor / consultant Paul Russell also agreed that there was ‘real and urgent need to amend the act to deal with many inadequacies that have come to light since the Bureau became operational in 1998’(The Nation, 3 December 2001)
Although the Act was amended in 2004, the amendments did not touch on making the Bureau independent. It is not surprising that the clarion call from a wide section of the society to amend the act is still loud and clear, especially now that corruption has soared to unprecedented level and the fight against corruption is undermined by the lack of independence of the Bureau.
Those who have captured the state are trying all the means to evade justice from corruption cases. The call is also coming at the time when the DPP is perceived to be ‘denying’ the ACB consent to prosecute some high-profile cases.
It is only now that the MPs through the Legal Affairs of parliament are making a serious attempt to amend the act to make the ACB independent of other organs of the state. The war against fraud and corruption cannot effectively be won unless the Bureau is truly independent.
In my view, the Corrupt Practices Act has two serious flaws: seeking consent to prosecute cases and the appointing authority. According to Section 42 (1) of Corrupt Practices Act, ACB has no power to prosecute cases unless the Director of Public Prosecutions (DPP) gives consent.
But what is the rationale for seeking consent from the DPP to prosecute cases? All those who served as ACB director have a legal background except Gilford Chiwaula (if my memory serves me right). This means they could study the cases and make their own independent judicial decision whether to prosecute or not.
However, they are required to see written consent from the DPP. Even if the Director is not a lawyer by profession, ACB has a team of lawyers that are competent enough to provide direction to prosecute.
Seeking consent from the DPP is problematic and an unnecessary requirement. Does seeking consent from the DPP imply that the Director is incapable of making their own legal decisions to prosecute? Secondly, it contradicts Section 4(c) of the Corrupt Practices Act which states that the ‘Bureau shall exercise its functions and powers independent of the direction or interference of any other person or authority’. So where is the independence if the authority to prosecute has to be obtained from another state organ?
Secondly, it is easy to torpedo investigations or cases involving powerful individuals linked to politicians or to prosecute politicians themselves. Powerful individuals may influence the DPP not to give consent in cases in which they are involved.
It is legendary that powerful individuals mentioned in the 13 files frustrated the ACB to prosecute the cases during DPP regime. ACB was even failing to mention names of individuals because they were gaged by powers-that-be.
The appointing authority is another issue that should be reviewed. The president appoints the Director subject to confirmation by the Public Appointments Committee (Section 5). While President Lazarus Chakwera has pledged his support for the Bureau to remain independent as demanded by the act, not all presidents can show or will show that commitment.
Since the director is appointed by the president, it is highly likely that the appointing authority may interfere with investigations of his loyalists or associates.
Oversight institutions should enjoy complete independence in discharging their work. The Public Appointments Committee should appoint ACB director as the case is with the Ombudsman. The director should be report to parliament rather than the president.
ACB Director Martha Chizuma is woman of character and has shown her unflagging commitment to tackle corruption head on despite some influential individuals trying to frustrate her efforts. She needs the support of all Malawians of goodwill and progressive laws. Amending the act will really make the Bureau independent. MPs should go for it!Follow and Subscribe Nyasa TV :