State v Mulonya (78 of 2004)  MWHC 54 (16 December 2004);
THE STATE (THE ANTI-CORRUPTION BUREAU)..………………APPELLANT
THE HON. MR. JUSTICE F.E. KAPANDA
Mr. Mwenelupembe of Counsel for the Appellant
Messrs Mhone and Phiri of Counsel for the Respondent
Mr. Ngwale Court Clerk
Mrs. Sinalo Court Reporter
Date of hearing: 17th December 2004
Date of order: 17th December 2004
The matter before us is an appeal by the State (the Anti-Corruption Bureau “the
ACB” to be specific). Indeed, Mr. Mwenelupembe had told this court that this appeal has been brought pursuant to Section 52A
of the Corruption Practices Act, 2003(the CPA) Act No. 17 of 2004. The said Section 52A provides as follows:
of acquittal, of the trial court if, and only if, dissatisfied upon a point of law; but, save as so provided, no appeal shall lie by the prosecution against a finding of acquittal by the trial court.” (emphasis
supplied by us)
of appeal filed with the court dated the 6th day of December 2004 which we quote hereunder in extension:
CRIMINAL APPEAL NUMBER 78 OF 2004
Practices (Amended) Act 2004.
Number 225 of 2000 (Lilongwe Registry).
Before we could proceed with the substantive appeal the respondent has raised a number
of preliminary issues. The court has thought of dealing with these preliminary issues and disposing of them for, if the objections
are sustained, they have a bearing on the substantive appeal.
The respondent has raised preliminary issues in the skeleton arguments filed with
the court. The appellant did not file any skeleton arguments but proceeded to argue the appeal. The said skeleton arguments filed
by the respondent, and the legal authorities in support are as follows:
or point of error of law – CPP vs. Phiri HC 10 MLR 202.
did not arise in course of a trial – Amalgamated Products Limited vs. Mkwanda I ALR (M) 684.
of the lower court can be appealed against and secondly that of capacity. In other words, whether the appellants are capable of bringing
the decision of the lower court dispose of the issues therein to finality? The answer has to be in the negative. The lower court
dealt with preliminary matters, inter alia, viz.:
dismissed the charge that was referred against the Respondent. In point of fact the lower court never acquitted the Respondent. What
then was the effect of the Ruling of the court? In our judgment since there was no trial of the criminal action the Ruling of the
court cannot, by any stretch of imagination, be said to have determined the rights of the parties. It is well to remember that it
is trite law that a decision of the court I am only be said to be final if it determines the rights of the parting. The lower court,
as found above, never made a final decision. We say this because of the following reasons:
fresh service. Secondly, as regards the small matter of the court not disclosing an offence the State ought to have just gone back
to redraft the charge so that it discloses an offence under the Corrupt Practices Act. Thirdly, the court advised the Anti-Corruption
Bureau to deal with the matter administratively. Again this does not mean that the Anti-Corruption Bureau was stopped from dealing
with the Respondent only that the former was told that there was no need to prosecute the Respondent for a criminal offence. Firstly,
the Magistrate was of the view that at the time when the Restriction Notice was issued no investigations had yet commenced. This
finding, in our view, was a finding of fact and therefore not amenable to appeal. Indeed, the lower court did not stop the Anti-Corruption
Bureau from starting investigating the Respondent and prosecute him later on if there were facts disclosing the commission of an
offence under the Corrupt Practices Act.
In sum the court never said it was acquitting the Respondent but rather just dismissing the charge before there was even a trial.
As we understand it, the position at law is that dismissal of a charge does not amount to an acquittal where there is no trial of
the criminal action. Accordingly, the lower court’s decision was only interlocutory. The Anti-Corruption Bureau, if it was
desirous of doing so, would have gone back to the drawing board and do the needful as advised by the Magistrate.
The decision of the Magistrate, in so far as we understand it, means that it was possible for the appellants to correct such irregularities
as were found by the lower court and recommence the prosecution before even the same court. It is clear in our judgment that this
appeal ought not have been brought. On that basis alone we would dismiss the appeal.
the one appointed by the Head of State. And that because he has not been so confirmed he has no business issuing restriction notices
and instructions to appeal herein the same being ultra vires to him. It became necessary during the hearing of Counsels’ arguments
to adjourn the hearing of the matter to facilitate the swearing of affidavits on this point. The idea was to allow both parties to
show as a matter of fact whether or not the said Director was indeed confirmed.
parts thereof are to the effect that the Mr. Kaliwo’s confirmation was raised in the course of another matter involving the
same parties pending judgment before Justice Mkandawire; that in response to a query that Mr. Kaliwo had not been confirmed the respondent
produced a letter authored by the Chairperson of the Public Accounts Committee of the National Assembly inviting Mr. Kaliwo to a
round table discussion relating to the conduct of corruption cases. The letter is dated October 29th 2004. The meeting was scheduled for November 12th 2004. As we understand the respondent, it is said that the said letter cannot be proof of Mr. Kaliwo’s confirmation because
firstly the letter comes from the Public Accounts Committee rather than the Public Appointments Committee. Secondly, that the letter
is not to the effect that Mr. Kaliwo had been confirmed by the said Public Appointments Committee.
The appellant also filed an affidavit. Its effect, as we understand it, is firstly to express a belief that the said Mr. Kaliwo was
confirmed. In point of fact, see paragraphs 8 and 9 of the affidavit where Mr. Mwenelupembe states as follows:
the Public Accounts Committee the reason being that this Committee being, just like the Public Appointments Committee, a creature
of the Legislature must be taken to have invited Mr. Kaliwo because it knew that he had been confirmed by the Public Appointments
Committee. Pausing here we wish to make the following observations i.e. firstly, that for all we know the letter is not personally
addressed to Mr. Kaliwo Esq. but rather whoever is the Director of the Anti Corruption Bureau properly appointed. Further, the Public
Accounts Committee could not be presumed to know that the “Director” has been confirmed in his appointment. As regards
the issue of the contract of employment between the Malawi Government and Mr. Kaliwo we must say that the said contract of employment
cannot be a substitute for the confirmation of his appointment by the Public Appointments Committee.
under the Penal Code. It is clear in our view that the operation of the Corrupt Practices Act (the Act) presupposes the existence
of an Anti Corruption Bureau and a Director thereto. It is also clear in our view that in respect of offences under the Act the said
Director has powers to, inter alia, investigate and prosecute Section 10(1)(b) states, inter alia, that the functions of the Bureau shall be to receive and investigate complaints of alleged or
suspected corrupt practices and, subject to the directions of the Director of Public Prosecution, prosecute for offences under this
Act for offences under the CPA. In respect of the latter the said Director is empowered to prosecute. Provided however that if the offence
is one that falls under part IV of the Act she has to seek the consent of the Director of Public Prosecutions before he can commence
a prosecution in terms of section 42 of the Act. The immediately notwithstanding it is obvious in our view that running through the
Act though is the fact that prosecutions are under the general direction of the Director of Public Prosecutions. In the above scheme
of things it will be noted that the said Director is to a large extent both the complainant and the prosecutor.
allegation against the respondent was that he disobeyed such a restriction notice. When the lower court ‘threw out’ the
case against the respondent it is the Director’s complaint that he threw out. It is the Director who issued the Restriction
Notice who could be said to be aggrieved by the decision of the court in throwing out his complaint. Accordingly, it is the Director
who has the right of appeal. Indeed, the appeal cannot be from the air. The one vested with the responsibility to administer the
CPA is the one to appeal. Actually, it was the Director’s decision to issue a restriction notice, among others, and the alleged
non-compliance with his notice that was in issue in the criminal proceedings before the lower court. In the case before us, therefore,
it is a truism to say that the Director of the Anti Corruption Bureau is purporting to act like the aggrieved person. In point of
fact, the petition and grounds of appeal set out above clearly shows that the one petitioning is the Director of the ACB and that
he is purportedly doing so on behalf of the ACB. It is a further axiom in our opinion that the Director envisaged has to be one who
is/was appointed in terms of section 5 of the Act
The relevant parts of the said Section 5 of the Corrupt Practices Act stated that:
“5. (1) The President shall, on such terms and conditions as he thinks fit,
appoint the Director, and the appointment of any person as Director shall be subject to confirmation by the Public Appointment Committee.”
. Indeed, as we understand it the position at law is that the scheme of things is supposed to be like this: the President suggests
a person he wishes to appoint as the Director of Anti Corruption Bureau and the Public Appointments Committee should confirm such
appointment. Until there is such a confirmation one cannot be a Director. If anything such person is only a Director designate who
may be accepted or rejected by the Public Accounts Committee. Now a Director designate cannot start giving instructions to investigate,
prosecute or indeed cannot be said to be aggrieved by a decision of a Court and appeal against such decision on behalf of the ACB
as is obviously appearing in the petition and grounds of appeal. It is only such a Director who has a capacity to investigate prosecute
or carry out such duties of the Anti Corruption Bureau as are listed in the Act who may take out a petition of appeal. In the context
of this case it is only such a Director who had the power to issue the restriction notice in terms of section 23 abovementioned and
prosecute any alleged breach thereof including any appeal arising thereby. The questions in respect of this case being are there
in respect of this case or appeal such a Director? It is in our opinion a matter of fact who is a Director of the ACB.
of starting the prosecution the Director of the ACB was Honourable Justice Mtegha SC, J.A. However, at the time the case was dismissed
in the lower court, and an appeal commenced in this court, Justice Mtegha had been relieved of his position. Advocate Gustave Kaliwo
had been appointed. We want to believe that this was done under the powers provided for in section 5 of the Act.
of the provisions of Section 6(2) of the CPA Section 6(2) reads as follows:” A person holding the office of Director may be removed from office by the President, with the
confirmation of the Public Appointments Committee, for inability to perform the functions of his office (whether arising from infirmity
of body or mind or from any other cause) or for misbehaviour.. Secondly has the appointment of Kaliwo esq. been confirmed by the Public Appointments Committee? It is well to note that the powers
of appointment that are conferred on the President are required to be so made in accordance with the Constitution or an Act of Parliament.
Section 89(1)(a) of the Republic of Malawi Constitution actually states, that inter alia, that the President shall have the power
to make such appointments as may be necessary in accordance with powers conferred upon him or her by the Republic of Malawi Constitution
or an Act of Parliament. Now the CPA has stipulated in Section 5(1) how the appointment of the Director of the Anti Corruption Bureau
shall be made. The appointment is supposed to be confirmed by the Public Appointments Committee. The reason why the legislature wanted
confirmation are, in our view, spelt out in Section 6(1) of the CPA. The said Section 6(1) of the CPA provides that no person shall
qualify for appointment as Director unless he is of high integrity and possess qualification and training necessary for the performance
of the duties of that office. We hasten to add that the legislature wanted to be vetting the appointee so that the President does
not put in office a Director he could easily manipulate. Further, as we understand it the confirmation process is there to ensure
that there are checks and balances in place so that only those properly qualified are given the important position of Director of
We are mindful of the affidavits sworn by the parties herein. In particular we are alive to the fact that in his quest to establish
that Mr. Kaliwo Esq. was confirmed as required by the CPA Mr. Mwenelupembe of Counsel exhibited a written contract of employment
between the said Mr. Kaliwo and the Malawi Government. Further, the other best evidence that the appellant could produce as proof
of confirmation was a letter from the Chairperson of the Public Accounts Committee. Are these proof enough that the requirements
of the CPA were satisfied? We have no doubt however that in both instances the answer has to be in the negative. The letter referred
to by Mr. Mwenelupembe did not emanate from the Public Appointments Committee. It was from the Public Accounts Committee and it reads
Anti Corruption Bureau
Following my letter, 2004, I have the honour to invite you to a Round Table Discussion
to be held at Capital City Motel on 12th November at 9.00 a.m.
The Public Accounts Committee is very much concerned with delays in resolving high profile corruption cases and also acquittals by
the courts of corruption cases due to lack of sufficient evidence.
The discussion will want to hear from you plans which may lead to gaining the necessary
public confidence in your office and also saving Government funds.
R.P. Danjalimodzi M.P.
an invitation to discuss plans that may lead to the office of Director of ACB gaining public confidence and saving government funds.
Further, the letter however you read it does not say that Mr. Kaliwo had been confirmed in his office as Director of the ACB. Mr.
Mwenelupembe argues that we should assume/infer that Mr. Kaliwo was confirmed form the fact that the Public Accounts Committee invited
him in that capacity to attend a round table meeting. That is a dangerous thing to do in our view. Confirmations by their very nature
are open and transparent. We would be doing everybody a disservice if we proceeded to regard Mr. Kaliwo was confirmed in his position
on the basis that he was invited to a meeting. The correct position has to be that Mr. Kaliwo is not confirmed as required by section
5 abovementioned. Applying the above discussion to the present scenario the question is there a Director properly appointed who can
be said to be the aggrieved person and therefore the appellant herein? The answer has to be in the negative. The Public Appointments
Committee has not approved the ‘incumbent’ Director’s appointment. It is obvious in our view that any way you want
to look at this appeal it is stillborn. The appellant has no capacity to bring it. If we may say so it seems to us that Justice Mtegha
would probably stand a better chance of being an aggrieved person herein. His removal is yet to be approved by the Public Appointments
Committee. Indeed, we wonder whether the Public Appointments Committee of Parliament confirmed Justice Mtegha’s removal. If
his removal has not been confirmed then we are afraid to observe that what we have is a Director designate of the ACB and the Director
of the ACB who is yet to be legally removed. In point of fact, our reading of Section 6(2) of the CPA shows that it is permissible
for the President to remove a Director of the ACB but such removal can only be valid and legal if the Public Appointments Committee
of Parliament confirms it. In our judgment the need for confirmation is intended to ensure the independence of the Director in the
execution of his duties. Again if we may so it appears to us that there may be two directors of the Bureau. One whose removal has
not been confirmed by the Public Appointments Committee. Yet another one whose appointment has not been confirmed.
This appeal is not sustainable. It is dismissed on the preliminaries. It is not even necessary to go into its merits.
Pronounced in open court at Blantyre this December 17, 2004.