The High Court of Malawi in Lilongwe will today deliver its verdict on the constitutionality of the appointment of Fostino Maele as Director of Public Prosecutions (DPP).
In the ruling today, Judge Anneline Kanthambi is expected to rule on whether to grant the applicants’ request to have the matter referred to the Chief Justice (CJ) for certification as a constitutional matter and subsequently heard by a panel of not less than three judges.
The judge will also determine whether to grant an application by Senior Counsel (SC) Kamudoni Nyasulu for a stay of proceedings in a judicial review case in which he is challenging the discontinuation of cases by Maele since his appointment in November 2025.
| Nation
Reads notice of the ruling dated August 28: “Take notice that matter has been scheduled to take place on 31st day of August, 2026 at 10:00 o’clock in the Forenoon for delivery of a ruling at Lilongwe Registry.”
Nyasulu , SC, is the applicant in Judicial Review Case Number 1 of 2026, in which he has sued the Solicitor General and Secretary for Justice, the DPP, Maele and the Attorney General (AG) as the first, second, third and fourth defendants in the case.
Through former AG Chikosa Silungwe, Nyasulu argues that when Mutharika appointed Maele as DPP on November 26 2025 there was no vacancy in the office of DPP as Masauko Chamkakala, appointed on January 30 2023, still had a running term until December 2027.
Reads the submission: “The Constitution contains no provision permitting: (a). Concurrent holders of the office of the DPP; (b). Overlapping tenures of purported holders of the office of the DPP; or (c). The appointment of a second DPP while the prior office holder remains in office.
“The purported appointment and confirmation of FYM [Maele] therefore, raise serious constitutional questions requiring interpretation and determination by a panel of not less than three judges under Section 9(2) of the Courts Act.”
Nyasulu is asking the court to determine whether the President acted ultra vires Section 101(1) of the Constitution by appointing a DPP while the office was not vacant and whether the Public Appointments Committee (PAC) of Parliament acted ultra vires under Section 101(1) of the Constitution by confirming a second DPP while the first remained in office
He also questions whether Section 102(1) of the Constitution creates a mandatory vacancy precondition for appointment and whether Section 99 of the Constitution permits only one DPP at any given time and whether dual tenure is constitutionally permissible.
In his skeleton arguments, Silungwe contends that the constitutional questions are structural and affect prosecutorial independence, legality of criminal proceedings, separation of powers, rule of law, public finance governance.
He said: “The consequences are national in scope and affect ongoing corruption prosecutions of trillions of kwacha in fiscal-illegality cases and donor confidence in the integrity of the Financial Crimes Division. Only a three-judge panel can resolve these issues under Section 9(2) of the Courts Act.”
The Nation recently established that the Malawi Government continues to pay Chamkakala monthly salaries and benefits as DPP.
Section 102 (2) of the Constitution provides that a person holding the office of DPP may be removed from the office by the President before the expiration of his or her term of office, if the President is satisfied that the person holding that office is incompetent in the exercise of his or her duties or “compromised in the exercise of his or her duties to the extent that his or her ability to exercise his or her functions impartially is in serious question”.
The constitutional dispute stems from an earlier judicial review case in which Nyasulu, alongside fellow lawyers George Desiderio Liwimbi and Enock Chibwana, sued the State over the termination of their contracts as private prosecutors and the subsequent discontinuation of cases they were prosecuting.
