Court relief for Chizuma
The High Court of Malawi has suspended implementation of an interdiction order that restrained Anti-Corruption Bureau (ACB) director general Martha Chizuma from discharging duties of her office pending her criminal defamation case.
In a rare lawsuit, Malawi Law Society (MLS) has taken to court Police prosecutor Levison Mangani, Lilongwe Chief Resident Magistrate and Secretary to the President and Cabinet (SPC) Colleen Zamba, who is Malawi’s top civil servant who issued the interdiction order to Chizuma on January 31 2023.
The order granted by High Court of Malawi Judge Mike Tembo on Monday means that Chizuma, who was interdicted because she is facing criminal defamation charges for a leaked audio in which she discussed an ongoing graft investigation with a third-party, is at liberty to immediately return to her duties.
MLS president Patrick Mpaka in an interview last evening confirmed seeking the permission to apply for judicial review of the decision by the SPC to interdict Chizuma.
Mpaka, according to the order issued by the court, swore-in a statement to support the application filed by the lawyers’ body which from the start faulted the legality of the SPC’s interdiction order.
Reads the court’s order: “Upon reading the sworn statement of Patrick Gray Mpaka verifying the facts upon which the application is based, it is this day adjudged that an order be and hereby made as follows:
“Permission be and is hereby granted for the applicant to apply for judicial review of the decision or proceedings of the r espondents contained or reflected in the summons and charge sheet under Criminal Case No. 236 of 2023 of 25th January 2023 and in the Interdiction Order of 31st January 2023 under Reference No. SPC/S/001 to respectively issue a summons and charge sheet and an interdiction order against the current occupant of the office of director of Anti Corruption bureau, Ms. Martha Chizuma, on account of complaints premised on a leaked audio recording without any allegation of bad faith in either the summons, charge sheet or the interdiction order…”
The court has ordered authorities to stop implementing the decision to interdict Chizuma.
In a telephone interview on Monday, Attorney General (AG) Thabo Chakaka-Nyirenda, who is government’s chief legal adviser, said he was aware of the court action filed by the lawyers’ body, but said he was yet to get instructions from the three defendants.
“I will have to get instructions from the three [the prosecutor, the court and the SPC] and a decision would be made upon receiving that,” he said when asked whether he would defend the trio in court.
When news about Chizuma’s interdiction came to light MLS alongside legal scholar Garton Kamchedzera queried the legality of the SPC’s letter.
MLS said the SPC’s communication appeared to be “seriously misguided and perhaps issued without jurisdiction” because due to the need for independence of the office of the ACB director general, the Corrupt Practices Act (CPA) in Section 6(2) and (3) provides that the power to suspend or remove the ACB chief is in the President and can only be done where the reason is desirable in the public interest to do so.
Responding to The Nation on the development, University of Malawi professor of law Garton Kamchedzera said the SPC’s action was an “act of desperate, brazen impunity by corrupt networks fighting not only the ACB DG, but the whole idea that this country can fight the rot of corruption.”
Lilongwe South legislator Peter Dimba resigned from his position as Legal Affairs Committee of Parliament chairperson in protest over Chizuma’s interdiction and pending case which he described as “a well choreographed script”.
Chizuma is scheduled to take plea at the Lilongwe Chief Resident Magistrate’s Court on February 8 2023 under criminal case number 236 of 2023 on two counts of making use of speech to lower the authority of a person before whom a judicial proceeding is being heard, which the State claims is against Section 113 (d) of the Penal Code. The summons said that authority was High Court of Malawi Judge Simeon Mdeza whom Chizuma allegedly suggested took a bribe.
The second count is making use of speech capable of prejudicing a person against a party to judicial proceedings by indicating in the audio that former Director of Public Prosecutions (DPP) Steven Kayuni is corrupt and compromised.
Police arrested Chizuma at dawn on December 6 2022 following a complaint purportedly filed by Kayuni about a viral audio. However, she was first released on police bail hours later before Minister of Justice Titus Mvalo later told Parliament she was released unconditionally.
In January last year, President Lazarus Chakwera reprimanded Chizuma over the audio, but said he had forgiven her and would remain in her position. A commission of inquiry into Chizuma’s arrest also faulted both Chizuma and Kayuni for failing to use sound judgement in the handling of the issues.
