There is a leadership vacuum at the Anti-Corruption Bureau (ACB) after the expiry of the mandate for the acting director general (DG).
This is based on legal minds’ interpretation of the Corrupt Practices Act (CPA), which governs the operations of the graft-busting body.
In a written response to a questionnaire last week, Malawi Law Society (MLS) president Patrick Mpaka said the framing of Section 6(B)(7) of the CPA means that the ACB deputy director’s acting capacity as DG expires six months from the date that he assumed that acting responsibility.
Former ACB DG Martha Chizuma’s contract expired on May 31 2024 and the deputy director, Hillary Chilomba, became the acting DG.
Based on Section 6B (7) of the CPA, one can only act in that position for a period not exceeding six months.
Reads the law: “In the event of incapacity of the director, or if the office of director is vacant, the deputy director shall act in his place and have all of the powers, duties and functions of the director: Provided that the deputy director shall not act as director for a period exceeding six months.”
In June this year, the ACB issued a press statement announcing that Chilomba had assumed the position of acting DG, meaning that by November end, he had been in office for six months.
Mpaka said what that means is that there is no DG at ACB, which cripples the bureau as some functions can only be executed with the DG’s authority.
“The more important point is that failing to appoint a substantive DG on time and allowing a situation of acting for more than six months is just part of a pattern of crippling the ACB,” said Mpaka, who accused government of having no interest in fighting graft.
According to him, there are two possible options for the President to either exercise the mandatory obligation in Section 6(B)(8) of the CPA and appoint another acting DG who can serve for no more than six months, or use the power in Section 6(1) to appoint a new DG altogether.
“There is going to be a power vacuum in the office of ACB DG and it would be adverse to the fight against corruption since there are certain things such as in sections 11 and 12 which ACB can only do through the legal authority of its director general,” added Mpaka.
Under sections 11 and 12 of the CPA, the ACB DG has powers to authorise investigations and prosecutions, both of which are key functions of the bureau.
In a separate interview, Cape Town University-based Malawian law professor Danwood Chirwa agreed that this brings about a legal power vacuum at ACB.
He observed: “As the law is very clear, the acting DG cannot serve beyond six months in an acting capacity. This means that he returns to his prior position of deputy.
“Without the DG, the ACB can carry out functions that do not require the decision of the DG. If a particular action is required by law to be taken upon the decision of the DG, the ACB will lack authority to take that action.”
While candidates for the DG position were interviewed two weeks ago, procedurally two or three names are expected to be forwarded to the President to choose one who will undergo another interview by the Public Appointments Committee (PAC) of Parliament.
The Office of the Ombudsman is also currently investigating how Chilomba and counsel Oscar Taulo were shortlisted for interviews when they allegedly do not have the required qualifications and experience.
All these processes may have an effect on how soon the new DG is appointed.
But a senior government official close to the appointing authority said that the President will make the appointment in “very few days”.
The official, who opted for anonymity, could not state when, but stressed that this is treated as “an important matter”.
The Ministry of Justice, which handles the recruitment process, is yet to respond to our questionnaire.
The Nation has also established that there are other key positions at the bureau that have not been filled substantively.
Out of five directors at ACB, three are working in acting capacity for months as the appointing authority is yet to fill these vacancies.
These include director of legal and prosecution after the substantive holder of the position Chrispin Khunga was controversially deployed to the Ministry of Justice.
Khunga was a lead counsel in cases of corruption relating to bribery allegations involving United Kingdom-based Malawian businessperson Zunneth Sattar.
ACB directors of public education and corporate services are also working in acting capacities.
