The Malawi Law Society (MLS) and a legal activist have slammed the Anti-Corruption Bureau’s (ACB) tendency of effecting arrests or making public pronouncements against public officers that lead to their suspension before thorough investigations have been carried out.
The lawyers’ body president Patrick Mpaka said in an intetview yesterday that the expectation of the law is that before any arrest is made, an investigation would have already been concluded and the prosecution team ready to take the matter to court.
On the other hand, a legal expert, Justin Dzonzi, who is the executive director of Justice Link, also condemned the bureau’s tendency of coming up with press statements every time an arrest is made but taking longer to prosecute.
There are public officers and private individuals that have been arrested, charged or named to be connected to some corrupt allegations, but are waiting on extended suspensions to see their day in court.
Dzonzi, in an interview on Wednesday, said the general principle in law is that when an investigating and prosecuting authority thinks that someone has a case, the first move is to carry out a thorough and conclusive investigation before making an arrest.
“Any arrest made must be on the basis that an offence was committed. There is no reason to arrest based a mere suspicion. To investigate a case is to find out and confirm the suspicion,” said Dzonzi.
“Arresting and prosecuting authorities must always bear in mind that an arrest destroys one’s reputation and affects one’s livelihood. The ideal situation would be that if one is mentioned to be connected to an allegation of corruption or any crime, the arresting and prosecuting authorities should be able to take that person to court at least within one month,” he added.
He said for the majority of people ACB arrest, there is no need for handcuffs and the pomp synonymous with scenarios when big names are arrested or summoned to appear before the bureau.
“I can give you as an example that it did not require ACB to summon Vice President [Saulos Chilima] to its offices in Lilongwe on corruption allegations and drag him before the court where he had to apply for bail.
“All ACB needed to do was to give him a notice of a date to appear in court. There is no way a person of that high profile would run away,” Dzonzi, a seasoned lawyer, said.
He said it was worrying that there was an idea of arresting individuals towards the weekend simply to publicly shame and humiliate them and not to secure justice.
“What purpose does a public notice of one’s arrest serve if not just appear to be seen working? People want results of those arrests and not a mere announcement,” he said.
The MLS president Mpaka said that not arrest should be made before an investigation is concluded.
Mpaka said it is expectation of the law that once someone is arrested, their case would be brought before the court within 48 hours.
“This is the reason we have investigation departments and prosecution departments in the institutions that handle criminal cases. The 48 hour rule must be respected at all times. There is no justification to connect someone to a criminal case or make an arrest then take forever to bring that person before the court. The time an arrest is being made, the prosecution department should be ready to move the courts,” Mpaka said.
A social commentator Humphrey Mvula concurred with Dzonzi that ACB goes overboard with arrests but moves at a snail’s pace when it comes to prosecution.
Mvula said once an arrest has been made or one has been named in connection to a corrupt practice, authorities must move with speed to prosecute their cases.
“I can give you one example of State House Chief of Staff, Mr. Prince Kapondamgaga. Here is a man who was mentioned by the ACB that he was connected to some corruption case. He was never charged nor arrested by the bureau, but the President suspended him based on a statement the ACB made.
“Look, as we speak, more than 10 months later, the man is still on suspension. His fate lies in the hands of the bureau that is not making any noticeable move. Authorities must move with speed on such cases,” he said, adding one would wonder if the President rushed to suspend him.
Responding to the case of Kapondamgaga, ACB said in a response to a questionnaire that it has been conducting the Zunneth Sattar related investigations on case-to-case basis.
Sattar is a Malawian UK-based businessman linked to the Vice President’s case, former Inspector General of Police George Kainja’s case, that of Kapondamgaga and others.
ACB’s spokesperson Egrita Ndala said the bureau has taken to court cases where investigations were concluded and have continued with investigations on others.
“The investigations into this case are complex and the bureau is still investigating cases involving Mr. Kapondamgaga and others. When it is through, the bureau will inform the public,” she said.
Asked if the bureau has at any point informed President Lazarus Chakwera about the status of Kapondamgaga’s case to enable him to take further actions, Ndala said under section 10(4) of the Corrupt Practices Act, the bureau may, after it has carried out investigations, if it considers it necessary, report findings of its investigation to the appropriate authority.
“When we finish the investigations, the bureau will consider if it will be necessary to report to the President,” she said.
Asked what the President was doing about the Chief of Staff on suspension for over 10 months and in connection to the delayed investigations, presidential press secretary Anthony Kasunda said in a response to a questionnaire on Friday that ACB presented a report to the President, which mentioned names of public officers suspected to have conducted themselves corruptly.
“The President took action based on the contents of that report. Any further action by the President on the matter depends on the outcome of investigations by the ACB,” Kasunda said.
In September 2022, a long time and seasoned public prosecutor Kamudoni Nyasulu told The Nation that lack of a clear strategy in recent years was one of the main reasons for ACB’s poor performance.
Nyasulu’s sentiments mirrored those expressed by National Elections Systems Trust executive director Unandi Banda that despite commitment from government and other stakeholders to support the bureau with financial and human resources, there has been minimal progress in the fight against corruption.
“Nest is troubled with lack of proper strategy by Chizuma in fighting corruption as she has relied in creating fear across the board. The ACB has resorted to wanton arrests that yield nothing more than a single court appearance followed by deafening silence,” Banda had observed.
In August 2022, experts that included National Anti-Corruption Alliance chairperson Moses Mkandawire had said hasty arrests before investigations contribute to delays by the bureau to bring graft cases for trial.
Out of the 60 Cashgate-related cases in 2024, at least 40 never made it to the trial stage five years after arrests, according to a 2021 Global Integrity Anti-Corruption Evidence Project report.
Two other cases that have dragged on for years include that of former president Bakili Muluzi, running close to 17 years now and it has seen eight ACB directors handling it, with government spending over K1 billion for a K1.7 billion corruption case and also the probe on the wealth of former president the late Bingu wa Mutharika, running for almost 10 years now since the bureau opened the probe.
In December 2022, the ACB boss Martha Chizuma expressed frustrations owing to challenges her office was facing to prosecute high profile corruption cases due to hurdles such as preliminary court orders that stall progress.
She told journalists that grand corruption cases were complex and their movements slow as they attract numerous interlocutory applications. ACB has also on a number of occasions attributed the delays to financial constraints and human capacity.
In September 2022, Minister of Justice Titus Mvalo announced that with government support, ACB had hired 17 new prosecutors and four private lawyers.