Doubts over Chizuma case

Some legal and civil society pundits have demanded that papers on the withdrawal of criminal charges against Anti-Corruption Bureau (ACB) director general Martha Chizuma and reversal of her interdiction be made public.

The pundits worry that the decision to discontinue the case does not bring closure because it may be brought back within six months as prescribed by law, meaning, Chizuma may not be off the hook yet.

The sentiments follow the decision by new Director of Public Prosecutions (DPP) Masauko Chamkakala, who on Saturday announced the decision to discontinue the case the State built from a leaked audio in which Chizuma, among other issues, is alleged to have criminally defamed some people, including former DPP Steven Kayuni and Judge Simeon Mdeza.

Lawyers representing the State on Sunday also said they have withdrawn an appeal in the Malawi Supreme Court on a ruling by High Court Judge Mike Tembo dismissing the government’s application made against Chizuma’s interdiction.

But Universi ty of Cape Town professor of law Danwood Chirwa in a Facebook post urged caution on the matter, demanding Secretary to the President and Cabinet (OPC) Colleen Zamba to make public withdrawal of the interdiction letter to Chizuma.

He wrote: “Criminal proceedings are not civil proceedings. The DPP has authority over the former, not the latter. As long as Zamba’s letter remains not retracted, the appeal lodged by [the State] still stands.”

Chirwa further challenged President Lazarus Chakwera to instruct Zamba to withdraw the interdiction letter, rather than making public pronouncements on the discontinuance of the charges.

“While on the topic of issuing directives and denials, please remember that [the President has the] authority to instruct Zamba to withdraw the unlawful letter. In fact, that is what [he] should have done the moment the DPP acted,” he added.

Section 77 of the Criminal Procedure and Evidence Code indicates that such discharge of an accused person shall not operate as a bar to any subsequent proceedings commenced once against that person within six months of the discharge on account of the same facts.

Former Attorney General (AG) Charles Mhango said as it stands, Chizuma was not off the hook yet, because some individuals may still decide to revive the case.

He said Chizuma was facing three hurdles that are the interdiction, criminal charges from the State and also from private individuals

Said Mhango: “All these matters need to be closed once and for all. At the moment, the discontinuance does not end the story because Chizuma was not working because of the case, but because of interdiction by OPC which was wrongly done.

“Despite saying it is withdrawing the case, government is not coming out clearly that it is also withdrawing the interdiction. I don’t think she is off the hook even for her to have courage to be in office. Once the DPP discontinues a case, it ends there, but for private individuals, the case can be reinstated within six months. So I don’t see proper closure, she can’t say she is off the hook.”

Seasoned private practice lawyer Jai Banda also said the decision to discontinue the case does not mean closure, as it can be brought back any time.

He said: “In my view, the case can be brought back again because it doesn’t mean that one is acquitted. She has not been tried of any case.

“The other procedure would be to take her to court, let her plead and the DPP should not offer any evidence, then she gets acquitted. That would bring closure of the Criminal charges.

On his part, accountability expert, Willy Kambwandira, who is also one of the civil society leaders who wanted the interdiction and charges withdrawn, said it was too early for celebrations.

He said in the spirit of transparency, and mutual trust, government must provide proof of withdrawal of both criminal charges and the interdiction order.

 “In the a b s e n c e , our conclusion is that government is just trying to manage the perception of Malawians,” he said.

Howe v e r, one of the lawyers AG Thabo- Chakaka Nyirenda hired to represent the State, George Jivason Kadzipatike, said Chamkakala’s move has resolved “the issues the MLS brought in the High Court”.

He st a t ed: “The interdiction of the ACB Director was based on the criminal proceedings against her. Now that the criminal proceedings have been discontinued, the basis for the interdiction has fallen away.”

He said that is the basis for them not to proceed with their application in the Supreme Court of Appeal.

“And I also hope that the MLS will withdraw their matter in the High Court against our clients as the matter has been rendered academic by the decision of the DPP,” he added.

MLS president Patrick Mpaka on Sunday said they will process these developments based on the law and generate a suitable legal framework which will inform their decision on how to proceed on the matter.

He said: “MLS is aware of and will process these developments against the law and generate a suitable legal framework with which to manage the court proceedings according to the applicable legal standards and their purpose.”

Last Wednesday, Justice Tembo dismissed the government’s application, meaning the matter came for judicial review where MLS and government would have to battle it out.

Government hired former AG Kalekeni Kaphale, Chancy Gondwe and Kadzipatike to represent police prosecutor in the Chizuma case, Levison Mangani, Lilongwe Chief Resident Magistrate and Zamba.

Chizuma was 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.

Chizuma was arrested on December 6 2022 following a complaint filed by Kayuni about the viral audio.

Under Section 77 (1) of the Criminal Procedure and Evidence Code, in any criminal proceedings, and at any stage before judgment, the DPP may enter discontinuance, either by stating in court or informing the court in writing, that the State intends that the proceedings shall not continue.

Last week, government came under pressure from donors, especially the United States, European Union and United Kingdom on its fight against corruption.