State takes on Chizuma
In a twist of events, government has filed an “urgent application without notice” in the High Court of Malawi to restore the interdiction of Anti-Corruption Bureau (ACB) director general Martha Chizuma.
According to her lawyer Martha Kaukonde, Chizuma on Tuesday reported for duties courtesy of a High Court order granted to Malawi Law Society (MLS) pending a judicial review of the decision to suspend her on January 31 2023 until her criminal defamation case is concluded.
But last night, court documents and interviews confirmed that Attorney General (AG) Thabo Chakaka-Nyirenda has engaged three private practice lawyers, namely former AG Kalekeni Kaphale, Chancy Gondwe and George Jivason Kadzipatike to represent police prosecutor in the Chizuma case, Levison Mangani, the Lilongwe chief resident magistrate and secretary to the President and Cabinet (SPC) Colleen Zamba.
In an interview last night, Gondwe confirmed both his hiring and the filing of the “urgent application” to vacate the order issued earlier on Monday that effectively stopped Chizuma from appearing before the magistrate’s court in Lilongwe today and also allowed her to resume her duties.
He said he is representing the SPC while Kaphale will defend the Lilongwe chief resident magistrate and Kadzipatike is counsel for Mangani.
If the State succeeds to have the order vacated, the interdiction order the SPC issued would be enforceable and Chizuma will be out of office and will appear before the court to answer her criminal defamation case.
The State’s application, because of its urgency nature, was made ex-parte without notifying MLS.
MLS president Patrick Mpaka said last night in an interview they were not made aware of the application.
In their sworn statements, lawyers representing the State are arguing that MLS has no sufficient interest in the case. They also argue that MLS has mis-read its objectives as provided under Section 26 (1) of the Legal Education and Legal Practitioners Act by instituting the present action as the conduct is tantamount to interfering with lawfully and properly instituted criminal proceedings.
They further argue that the lawyers’ body’s conduct does not protect nor assist the public as the conduct was tantamount to clogging the criminal justice machinery, which is a public good.
Reads the sworn statement: “The order for permission for judicial review was wrongly granted by the court when the accused person [Chizuma] could have availed herself and exhausted the available alternative remedie.
“Judicial review could not lie against the 2nd defendant’s [the Lilongwe Chief Resident Magistrate]decision as [the court’s] decision was made in the exercise of [its] judicial functions and therefore protected from any liabilities…”
The State lawyers argue that the MLS was acting as a proper surrogate litigant when the actual aggrieved party is competent to challenge the defendants’ conduct and has not challenged or complained in the matter.
The MLS decision, they further argued, was also made without blessings from its board.
The court is yet to set a date to hear this urgent application, according to Gondwe.
High Court Judge Mike Tembo on Monday suspended implementation of the interdiction order that restrained Chizuma from discharging duties of her office pending her criminal defamation case.
In a rare lawsuit, MLS took to court the prosecutor Mangani, the magistrate in Lilongwe and Zamba, who is Malawi’s top civil servant.
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.
Chizuma was scheduled to take plea at the Lilongwe Chief Resident Magistrate’s Court today 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.
Police arrested Chizuma at dawn on December 6 2022 following a complaint purportedly filed by former Director of Public Prosecutions Kayuni about a viral audio. However, she was first released on police bail hours later before Minister of Justice Titus Mvalo 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 she 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.
