The Malawi Law Society (MLS) says there is nothing unconstitutional about the Anti-Corruption Bureau’s (ACB) decision to share its investigative report with other government branches.
During his national address on Tuesday evening, President Lazarus Chakwera said it was irregular for the bureau to share the report with the Chief Justice and the Speaker of Parliament.
He said: “I find this decision by the bureau irregular for four reasons. Firstly, because it dishonours the principle of separating powers of the Executive branch, to which the bureau reports, from the powers of the Judiciary and the Legislature, which exist for different functions.
“Secondly, I know no law that authorises the bureau to submit reports to the heads of Legislature or of the Judiciary for private use.
“Thirdly, the bureau stated in the report that it cannot release the list of individuals implicated by the report to the public.
“Fourthly, since the bureau has said that it fears that reading the report may lead to prejudice, it should have avoided potentially prejudicing the Chief Justice.”
Section Four (4) of the Corrupt Practices Act, which the President relied upon, states that: “Director (ACB) shall submit reports to the President and to the Minister regarding the general conduct of the affairs of the Bureau.”
But in a written response yesterday, MLS chairperson Patrick Mpaka said the bureau’s decision is consistent with constitutional principles of transparency and accountability and, therefore, any suggestion that the bureau was wrong in sharing the report contradicts the President’s own statement.
He said: “The criticism advanced by the President may need to be weighed against the constitutional obligation of all public officials based on which the sharing is said to have been done and if you listened carefully, the President has not criticised the constitutional basis of the ACB decision in his speech.”
Legal scholar Professor Danwood Chirwa has also backed the sharing of the report, saying contrary to Chakwera’s argument, the sharing respects separation of power.
In his Facebook post yesterday Chirwa, who is a professor of law at University of Cape Town in South Africa, opined that in submitting the report to the Chief Justice and Speaker of Parliament, the ACB was in fact asserting its independence and respecting the separation of powers.
He said: “We know from what’s already in the public domain that the alleged corrupt folks include judges, members of Parliament and officials from other important government institutions and business.
“The President cannot fire those. The ACB must have known this. The heads of those institutions have a duty to act just as the President has done. There can be no excuses. They must follow the law and commence appropriate processes.”
Chirwa argued that for the Judiciary, the Chief Justice must commence disciplinary proceedings against the implicated judges, adding that the Judicial Service Commission (JSC) must move in quickly.
Asked what course of action he would take having received the report, Chief Justice Rizine Mzikamanda said: “Nothing next; the report is just for my noting.”
Speaker of Parliament Catherine Gotani Hara was not immediately available for comment as she could not pick up our calls.
Based on this report, the President has withheld delegation of functions to Vice-President Saulos Chilima. n