Court faults ACB for disregarding procedure
The Lilongwe Chief Resident Magistrate’s Court has declared as not-trial-ready a case on alleged irregular procurement of uniforms and other items for the Malawi Prison Services as brought by the Anti-Corruption Bureau (ACB).
Chief resident magistrate Madalitso Chimwaza made the determination yesterday following observations by the defence in the case against two former Cabinet ministers Joseph Mwanamvekha and Nicholas Dausi that the ACB did not get consent from the Director of Public Prosecutions (DPP) to prosecute the matter.
Making a determination on the preliminary issues, the magistrate said the matter was not-trial-ready as observed by defence.
Chimwaza said: “The ACB is assuming to be a prosecutor on the matter when there is no consent. You can’t consolidate because there is no consent.”
However, the magistrate reserved her ruling on the application to consolidate the case.
In an interview yesterday, DPP Steve Kayuni said his office received the application for consent on the afternoon of August 18 2022 and needed time to analyse.
He said the application is and analysis as per dictates of the law.
Said Kayuni: “We did advise the officers who sent the application that consent consideration is not a tick-box process. It is a legal analysis process.
“Corruption allegations are complex and tricky, as such, an officer has to do analysis and legal opinion on the matter at hand. There are so many legal risks, pitfalls and trappings if such is not seriously considered and that has a huge bearing on the taxpayer on malicious prosecution suits.”
The court convened yesterday when the ACB made an application to consolidate different cases on the matter involving former minister of Finance Mwanamvekha, former minister of Homeland Security Dausi, former Ministry of Homeland Security Principal Secretary (PS) Samuel Madula, incumbent Ministry of Homeland Security PS Kennedy Nkhoma and Ministry of Homeland Security Deputy Secretary Patricia Liabuba who are suspects in the matter.
In its application, the ACB argued that the cases were related and had the same witness, as such, needed to be consolidated.
But the defence legal team objected to having the cases consolidated, arguing that ACB had no consent to prosecute and that the issues being tackled were different.
Former Attorney General Kalekeni Kaphale, who is representing Mwanamvekha, observed that the matter was not-trial-ready.
He faulted the charge sheet, saying it indicated that his client was minister of Homeland Security in 2022, adding there was need for ACB to sanitise the documents.
Said Kaphale: “There are irregularities in the charge sheet which need to be worked on.”
But ACB lawyer Benjamin Mandala said the bureau applied for consent last week and is waiting for the same.
He also justified the need to consolidate the cases, saying the witnesses are the same.
“They will speak to specific individuals, but if evidence by a particular witness does not concern a certain accused person, we will inform counsel in advance,” said Mandala.
He added that ACB will also look into the issue of disclosures and serve defence.
The ACB’s move comes against the background of Parliament passing an amendment to the Corrupt Practices Act to enable the graft-busting agency to prosecute cases without seeking consent from the DPP.
When contacted yesterday, presidential press secretary Anthony Kasunda asked for more time to check if President LazarusChakwera has signed the amended Act.
The suspects in the case were arrested in connection with a contract between Malawi Government and One of United Arab Emirates, which is alleged to have not followed procedures.
The contract was for the procurement of uniforms and other equipment at Malawi Prison Services. Government released about $18.4 million for the deal.
ACB in 2020 got information about the alleged irregular procurement and instituted investigations that led to the arrests of the suspects.
