The High Court of Malawi has dismissed an application for judicial review and referral of the matter to the Chief Justice for certification in a case where senior lawyers challenged the constitutionality of the appointment of Director of Public Prosecutions (DPP) Fostino Maele.
The case, brought by Senior Counsel Kamudoni Nyasulu, alongside lawyers George Desiderio Liwimbi and Enock Chibwana, also challenged the discontinuation of cases by Maele.
A case summary by Senior State Advocate Mable Mitepa shows that Justice Anneline Kanthambi viewed the matter as private and, therefore, not suitable for judicial review.
“The court ruling was that the application for permission to apply for judicial review was not granted and was denied on the basis that the issues raised in their application for permission to commence judicial review arise from a private contract.
“The matter, therefore, is not fit for judicial review. The court further ordered that each party bear its own costs,” said Mitepa.
Nyasulu and his team were part of Team Linthumbu, which was established to provide visibility in the prosecution of high-profile cases in a timely manner to improve public confidence in the fight against corruption and fraud.
In an interview yesterday, Nyasulu confirmed the determination but said they would make a substantive comment once a perfected ruling was issued.
Nyasulu, alongside Liwimbi and Chibwana, initiated the action following the termination of their contracts as private prosecutors and the subsequent withdrawal of cases they were handling.
Through former Attorney General Chikosa Silungwe, Nyasulu argued that when Maele was appointed on November 26 2025, there was no vacancy in the office of the DPP because the previous office holder, Masauko Chamkakala, appointed on January 30 2023, still had a running term until December 2027.
He contended that the Constitution contains no provision permitting overlapping tenures or the appointment of a second DPP while the first remains in office, raising questions regarding prosecutorial independence, the rule of law and public finance governance.
He also questioned whether Section 102(1) of the Constitution creates a mandatory vacancy precondition for appointment, whether Section 99 permits only one DPP at any given time and whether dual tenure is constitutionally permissible.
Our sister newspaper, The Nation, recently established that the Malawi Government continues to pay Chamkakala a monthly salary and benefits as DPP.
Section 102 (2) of the Constitution provides that a person holding the office of DPP may be removed by the President before the expiration of their term if the President is satisfied that the office holder is incompetent in the exercise of their 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”.
