Earlier this week, the Anti-Corruption Bureau (ACB) held a press briefing to inform the nation on matters surrounding the alleged attempt to bribe five High Court Judges assigned to the Presidential Elections Case. In this article, a social media influencer on legal matters, Lord Denning QB, offers a rebuttal to some of the remarks made during the press briefing hosted by the ACB Director General Mr. Reyneck Matemba. The writer navigates through Matemba’s seemingly contradicting and confusing utterances on issues surrounding what will likely be another controversial and high profile case of our time.
I am not supposed to start by telling anyone that prior to native rule, which began in the early 1960s, Nyasaland (as was then known) was one of the territories that were under the British Central African (BCA) Protectorate. Perhaps what I should consider my starting point should be a preview statement that during that British rule, the natives suffered a great deal of oppression such that educated natives were prompted to form clubs and associations aimed at pushing natives’ agenda.
These associations culminated into what was formed and named Nyasaland African Congress (NAC). The NAC, which spread its footprints throughout the Nyasaland territory, resulted into some loose achievement whereby there was an agreed principle of partnership of races. In this agreement, natives were promised to begin sharing power with the British authorities. I dare say the British were now facing a threat from the native force brought about by the NAC and that the agreement was only arrived at in order to somewhat quell the surging forces.
However, as if they had re-strategized, in 1953 when the colonial offices in Southern Rhodesia (now Zimbabwe), Northern Rhodesia (now Zambia) and Nyasaland established what is called the Federation of Rhodesia and Nyasaland, in which they abandoned the agreement of race partnership and maintained that only Europeans would retain a position of leadership. The NAC leaders saw this as a betrayal and were enraged.
Fast forward. The NAC roped in Dr. Hastings Kamuzu Banda who, upon taking the leadership of the organization, embarked on an intensive and extensive campaign crisscrossing the country making speeches to local people who ended up waking up. His campaign provoked unrest such that in February 1959, the situation was coming out of hand for the colonial authorities until Rhodesian troops were flown into Nyasaland to help keep order. A state of emergency was declared and NAC was banned through the colonial court. The Court cited that NAC was on criminal adventures hence its banning in the country.
That, now, reminds me of what our dear ACB Director General, Mr. Reyneck Matemba, wrongly claimed.
Mr. Matemba claimed that legally, a political party cannot be prosecuted. He said this after stating, in response to a question, that the bribery allegations that have been brought before the ACB in relation to the landmark 2019 presidential election case are against individuals and not a political party.
Without overriding the notice that the claims are against individuals and not a political party, Mr. Matemba’s claim that a political party cannot be prosecuted was nothing, but a clear attempt to shut down public logical presumptions that the bribers were on an errand to secure a corrupt advantage of a political party.
When Mr. Matemba, who is a lawyer by profession, stated, certainly with misguided authority, that a political party cannot be prosecuted, I became sufficiently convinced that its either Mr. Matemba has a very slim understanding of what prosecution entails or was deliberately crafting to mislead his listeners with his apparent lie. He further argued that the reason why a political party cannot be prosecuted is because it is impossible to arrest a political party. I am here to discuss that issue at length.
Perhaps I shouldn’t hesitate in asserting that Mr. Matemba appears not to appreciate that prosecution is NOT synonymous to arrest and has never begged to be same thing. With that assumption in mind, I feel obliged to remind Mr. Matemba that prosecuting a party would ideally mean officially accusing a party of committing some illegal act and bringing the case against that party in a court of law for trial. It has nothing to do with an arrest in order to manifest its meaning and/or occurrence. While an arrest is only done to a natural person, the fact that a political party is not a natural person does not precludes prosecution from a political party or any juridical person for that matter.
At law, there is a natural person and a juristic or juridical person. A natural person is any human being such as you and I, as individuals capable of assuming obligations and capable of holding rights. Juridical person, on the other hand, refers to entities endowed with juridical personality who are usually known as a collective person, social person, or legal entity such as companies, corporations, incorporations, societies, associations, etc. Political parties fall under this category. Just like the natural person, the juridical person is capable of assuming obligations and capable of holding rights. For avoidance of doubt, the law clearly states that juridical persons, just like natural persons, are capable of undertaking legal action either in the capacity of a defendant or plaintiff.
For further avoidance of doubt, juridical persons are subjects of legal action in both civil and criminal undertakings. I have just given an example above, involving the State and the Nyasaland African Congress, which was a precursor to the Malawi Congress Party (MCP), in which end it received a judicial punishment of a ban. This goes to unequivocally explain that remedies against a political party when it offends the law through criminal adventures such as fraud and bribery are certainly available. Given the understanding of prosecution; given the fact that political parties are juridical persons and, further, given the fact that juridical persons are not sidelined from judicial trials; the narrative that political parties cannot be prosecuted should not be taken for truthful.
You see: This ACB Tsar continuously amazed me in his briefing. On two occasions he referred to the Chief Justice (CJ) AS A LAWYER. The first instance is where he said (and I quote): “As a Chief Justice and as a Lawyer, he fully understands what we are supposed to do as a bureau and the dictates of the law that we operate under.”
On the second instance he was answering a question, which sought to establish whether the court ruling would await the finalizing of this bribery case. In responding to that question, he referred to the letter, which the CJ wrote to the ACB and said: “I will refer to the letter that the Chief Justice has sent. No conditions have been made. AND BECAUSE HE IS A LAWYER – AND ONE OF THE SENIOR LAWYERS IN THIS COUNTRY – he knows he can’t put any condition.”
Fellow countrymen, this might be seen as a trivial aspect but it speaks in loudest manner how Mr. Matemba’s legal mind cannot be relied upon at this time. As a starting point, we should all understand that judges are not lawyers (although they might have been such before) and lawyers are not judges until they become so. Proceeding from this starting point, the ACB Chief needs to be directed to a point that a Chief Justice (in any country) is always a senior judge extracted from the a court of supreme rank in that country. In the case of Malawi, section 105(1)(3) as read with section 111 of the Constitutions confirms what I am saying here about a CJ being a senior judge and not (at all) a lawyer.
Truth be told, it appears that Matemba was under immense pressure such that the only most notable thing noted was, perhaps, his apologies for clerical mistakes of the bureau’s initial memo. Mr. Matemba boasted on how a job in the Ministry of Justice is awaiting him should he leave the ACB. He turned this important forum, which was well-financed by our taxes, into a platform to castigate or expose flaws of his predecessors whose only crime was to belong to the private sector before taking the top job of at the ACB. In that regard, his reference to the former ACB Directors Mr. Lucas Kondowe and Mr. Alex Nampota in justifying his position as safe. This was out of place.
A further display of his ‘arrogance’ emerged when he was asked by the journalists to state whether the ACB had already met the suspects/culprits. His answer was surprising: He said he couldn’t tell that!
Saying “I will not be able to tell you whether we have met the suspects or not”. Proceeding to say that such concealment is for legal reasons is quite funny and insulting. Ideally, it goes to narrate the ambiguity of the very transparency that the bureau claims to operate with. Refusal to reveal the names of those under initial stages of investigations is understandably legal, but refusal to state whether that investigation has materially started (thus disclosing whether the investigators have met them or not) goes to inform us that the bureau has not met them yet and will probably never.
Mr. Matemba was so confused within himself such that he couldn’t realize the apparent contradictions that he dished out. While he had labored all along to convince the journalists that were before him that the accused bribers had nothing to do with any political party or indeed the parties to the case, he unknowingly said the following: “In fact, you may be surprised that they may pass a ruling that is in favor of someone who tried to bribe them and this is because they are supposed to base their ruling on the facts and the law.”Follow and Subscribe Nyasa TV :