Increasing instances of discontinuation of high-profile criminal cases by the office of the Director of Public Prosecutions (DPP) have stirred debate on the powers and limits of the office.
Under Section 99(2e and 3) of the Constitution, the DPP has powers to discontinue any criminal proceedings at any stage before judgement and communicate reasons for the decision to the Legal Affairs Committee (LAC) of Parliament within 10 days for purposes of accountability.
But in separate interviews with The Nation, legal, accountability and political pundits have observed that discontinuances appear to follow political cycles rather than legal merit. This, they said, raise concerns about consistency, institutional autonomy and the appearance of external influence even if some decisions may be legally justified.
Earlier this month, DPP Fostino Maele discontinued four cases, including two involving Cabinet ministers serving in the Democratic Progressive Party administration.
In Criminal Case Number 3 of 2023, Minister of Energy and Mining Jean Mathanga was cleared alongside three others while in Criminal Cause Number 2 of 2025, Minister of Finance, Economic Planning and Decentralisation Joseph Mwanamvekha and five others were let off the hook.
The DPP also discontinued Criminal Case Number 19 of 2023 involving current Reserve Bank of Malawi (RBM) Deputy Governor Henry Mathanga, former RBM governor Dalitso Kabambe and incumbent Secretary to the Treasury Cliff Chiunda. The other case, Criminal Case Number 3 of 2025, involving Kabambe and Henry Mathanga, was also discontinued.
Mwanamvekha, Kabambe, Mathanga. | Nation
In an interview yesterday, LAC chairperson Gilbert Khonyongwa confirmed that the reasons for the discontinuation of the cases in question were duly submitted to Parliament.
“The Legal Affairs committee will, in due course, convene to consider the submissions and assess their adequacy. Should it be deemed necessary, the committee will formally invite the Director of Public Prosecutions to appear before it for further clarification,” he said.
Trends
Between 2023 and 2024, former DPP Masauko Chamkakala discontinued about 11 high-profile criminal cases after succeeding Steve Kayuni.
The cases included the K1.7 billion corruption trial of former president Bakili Muluzi and K16.5 billion tax evasion case against Mapeto David Whitehead and Sons (DWS) Limited executives and two Malawi Revenue Authority (MRA) customs officers.
At the time, the LAC told Chamkakala to revive the forgery case involving Paramount Holdings Limited and its directors, but the DPP did not.
Later, the Malawi Supreme Court of Appeal granted Luthando Holdings Limited, an interested party in the forgery case, permission to start judicial review proceedings in the Paramount Holdings case.
Legal, accountability gurus raise concerns
In an interview yesterday, University of Malawi (Unima) law professor Garton Kamchedzera said the pattern shows that political power has made a mockery of professional and technical judgement on the part of certain members of the legal profession.
He said: “One hope is that the case may be brought back within the time specified in the order. The second hope is that a group or an organisation with sufficient interest can bring public interest litigation against the DPP.
“As they are currently drawn, the orders have a phrase that acknowledges that the court has limited powers, which is wrong as the DPP’s decision cannot override constitutional principles that are in Section 12.”
Private practice lawyer Shepher Mumba said more often, criminal cases are commenced for political reasons without legal and or factual basis, prompting successor DPPs to get rid of these “political persecutions”.
“However, this power is prone to abuse for personal gain or political expediency where cases are discontinued to serve political interests other than the cause for justice,” he said.
Another lawyer, Jefferson Luwa, said in the current form, the law simply allows the DPP to discontinue criminal cases, but does not provide for what should be considered before the case is discontinued.
On LAC’s role, he said it was devoid of any power to force or compel the DPP to deviate from his earlier decision to discontinue a case, insisting, the law only vested LAC with accountability responsibility, nothing more.
“It appears there isn’t an available remedy as of immediate regard being had to the principle of separation of powers. The DPP exercises Executive powers when a case is being discontinued,” said Luwa.
In Constitutional Case Number 1 of 2017, Justices Maclean Kamwambe, Ivy Kamanga and Joseph Chigona ruled that the DPP executes Executive powers and not administrative powers, and that those powers, as a creature of the Constitution, are amenable to Judicial Review only in rare and extreme circumstances.
National Anti-Corruption Alliance chairperson Michael Kaiyatsa agreed, saying the current legal framework gives the DPP immense discretion, but provides limited mechanisms for meaningful review.
“The current safeguards are largely indirect, relying on limited judicial review in exceptional circumstances, parliamentary oversight and, ultimately, scrutiny by the public,” he said.
What now?
Private practice lawyer Benedicto Kondowe suggested introduction of pre-discontinuance scrutiny mechanisms, where the DPP is required, in significant or public-interest cases, to subject the proposed discontinuance to review by relevant oversight bodies.
“Such would be in a structured and confidential process. This would not transfer prosecutorial power to Parliament, but would ensure transparency, recorded justification, and institutional accountability before the decision takes effect,” he said.
During a debate on discontinuation of cases organised by Youth and Society (YAS) on Sunday, Malawi Law Society (MLS) Lilongwe Chapter representative Barney Semphani agreed with Kondowe’s suggestion.
Section 77 (a) of the Criminal Procedure and Evidence Code states that after persons have been discharged, such discharge shall not operate as a bar to any subsequent proceedings commenced once within six months of the discharge, on account of the same facts.
