The announcement that the legendary lawyer Modecai Msisha was not to represent the Anti-Corruption Bureau (ACB) in a contract to prosecute a high-profile corruption and fraud suspect, Saulos Chilima, brought a lease of relief on the suspect and his legal team.
That relief, however, is now under threat following new developments that may overturn the barring of Msisha.
Msisha, who is advanced in age, boasts a legendary record of court victories and special dedication to task, making him one of the highly-sought-after, expensive and tough to crack legal representation in Malawi.
The ACB’s announcement to have hired Msisha to prosecute Chilima brought excitement to those looking forward to successful prosecution of the Vice President and frustrations in equal measure to those looking forward to Chilima being acquitted of his charges.
The ACB arrested and interrogated Chilima on corruption allegations in dealings with UK-based businessman, Zuneth Sattar and was produced before court the same day of his arrest where he secured a bail.
According to the ACB’s announcement, Chilima was arrested on specific allegation that between March 2021 and October 2021, he received money amounting to $280,000 and other items from Sattar as a reward for him to assist Sattar’s companies, Xavier Limited and Malachite FZE, to be awarded contracts by the Malawi Government.
In court, Chilima was charged with three counts of corrupt practices; two counts of receiving advantage for using influence in regard to government contracts; and one count of failing to make a full report to a police officer or an officer of the ACB that an advantage had been corruptly given to him.
The ACB further announced that it hired veteran lawyer Mordecai Msisha to lead the prosecution team in the case. Addressing the Court during Chilima’s bail application, the ACB Director General, Martha Chizuma, the ACB is waiting for the office of the Director of Public Prosecutions (DPP) to give them a go ahead on the matter of hiring a private practice lawyer to represent the bureau.
In his response to the ACB application, the Director of Public Prosecutions (DPP) Dr. Steven Kayuni advised the Anti-Corruption Bureau (ACB) against engaging Msisha to prosecute the case against Vice-President Saulos Chilima, but declined to make public the reasons.
“The reasons have been confidentially communicated to the ACB. I have so much respect for Msisha, SC, as such I cannot discuss this in the media,” said Kayuni in a brief written response to the media.
Meanwhile, Dr. Kayuni is on suspension following the police’s arrest of the anti-corruption bureau, Chizuma, which is said to have taken place following a complaint that Dr. Kayuni lodged with the police against Chizuma’s conduct that injured the character of the DPP.
The Minister of Justice, Taitus Mvalo, has since informed the country that the Attorney General has been instructed to review the decision that the DPP made and make recommendations to the Ministry of Justice where the DPP office resides and draw administrative directions from.
Offering its comment on the matter, the Malawi Law Society (MLS) through its honorary secretary, Chrispin Ngunde, said the law does allow the ACB director to appoint any legal practitioner in civil matters, while it is silent on criminal matters.
Responding through written correspondence, Ngunde said: “In terms of the law, Section 5B of the Corrupt Practices Act [CPA] expressly permits the Director of ACB to appoint any legal practitioner to provide legal representation to the ACB in civil matters, but the Corrupt Practices Act is silent on legal representation in criminal matters. However, the ACB has on previous occasions been assisted in criminal matters by private legal practitioners who are appointed by the DPP in exercise of his powers of delegation under Section 100(1) (b) of the Constitution and power to appoint public prosecutors under Section 79 of the Criminal Procedure and Evidence Code.”
A former Attorney General, who opted for anonymity, told Shire Times that “the exclusive legal authority to delegate prosecution to a private legal practitioner is bestowed upon the Director of Public Prosecution who has to back his decision with reasons. It follows then that the AG will have to examine the reasons whether they are worthy or not. If not, a centrally decision will have to be made by another officer acting in the capacity of the DPP and not otherwise”.
Commentators have widely speculated that the review will end in Msisha being recommended for the representation of the ACB and Chilima’s legal team should embrace a tough task ahead.