DPP, Chamkakala, under legal scrutiny for discontinuing Paramount Holdings criminal case
The business atmosphere has been recently characterised by a criminal case that, from the look of things, has been a glittering hope for the business community, especially the local sector of it, to challenge fraudulent and unfair dominance by foreign business enterprises.
The complexity of the Malawian business atmosphere is such that greed of some public officials who entrusted by law to make decisions sacrifice the local business sector at the altar of bribes. The so-called “foreign investors” who are in true sense traders targeting the national budget funds through supply business do everything possible to capture the officials and dominate the business terrain.
But all this, I must say, happens to the detriment of Malawi’s success because indigenous enterprises who would maintain the cash flow within the country thereby cutting on forex flight are beaten to death. The indigenous enterprises who would contribute to the success story of Malawi’s economy by employing several local citizens are assaulted to incapacity through erased opportunities for business.
In 2022, one of such dominant foreign stakeholders was caught up in a cobweb of fraud which gave rise to a criminal case.
This is Paramount Holdings, a company which, together with its three directors were caught pants down fogging documents in order to unlawfully win a supply tender. It transpired that the sort of fraud which they were caught with has been used to win several related contracts from Government.
But their 40th day arrived when their alleged fraud resulted into the arrest of two of the Directors of the company. But the arrest translated into nothing more as the Directors got released on police bail (which is still operating to this day) as they took questionable steps to avoid appearing in court.
The profile of events became indicative of a fact that the police eventually became unwilling to prosecute the case. The local business enterprises who had close interest to the case stepped in and sought to enter private prosecution.
Ordinarily, criminal matters are prosecuted by the State through the Director of Public Prosecution (DPP). There are other institutions such as the Police, the Anti-Corruption Bureau (ACB), etc who also prosecute criminal matters on behalf of the State by drawing their authority to do so from the DPP. This entails that the DPP is the overall in-charge of criminal prosecution and all other entities conduct criminal prosecution by drawing from his authority.
Apart from the State institutions and apparatus, under the laws of Malawi, any individual other than the State can also take charge of criminal prosecution through what is called Private Prosecution. This is provided for under sections 83 and 84 of the Criminal Procedure and Evidence Code (Chapter 7:01 of the Laws of Malawi). Even in such circumstances, the DPP as the main authority in criminal prosecution has to give authority to such individuals to proceed with Private Prosecution and this authority is known as Consent to Prosecute.
In the Paramount case, three indigenous enterprises who felt disadvantaged in the transaction where the said Paramount exercised the alleged fraud dully obtained the DPP’s Consent to Prosecute. However, in between, the accused has been employing every tactic possible to evade appearance in court. Recently, news has emerged that the DPP has entered what is known in legal circles as “nolle prosequi” a Latin word which simply means a decision to discontinue the criminal case.
The power, of the DPP, to discontinue a criminal case is provided for under the Constitution. Such powers as vested in the DPP are as stated under section 99 (2)(c) of the Constitution, which is to:
“to discontinue at any stage before judgment is delivered any criminal proceedings instituted or undertaken by himself or herself or any other person or authority.”
This power of the DPP is executive in nature. Ordinarily, officers holding executive powers are accountable to Constitutional bodies, such as, in this case, the Legal Affairs Committee (LAC) of Parliament. For avoidance of doubt, under section 100 (2)(a) of the Constitution the law provides for accountability mechanism in the exercise of powers vested in the DPP as follows:
“The person appointed to the office of DPP shall be accountable to the LAC of the National Assembly for the exercise of such powers in his or her own behalf and those powers exercised on his or her behalf by subordinates…”
The foregoing indicates that constitutional powers rest on the LAC to review the actions and decisions of the Director of Public Prosecution. What this means, therefore, is that if there are issues as to how the DPP has exercised his power, the LAC which oversees the exercise of constitutional powers by the DPP, can be relied upon to fix things. Section 101(2) of the Constitution buttresses section 100(2)(a) cited above by providing the following:
“In the exercise of the powers conferred on him or her by this Constitution or any other law, the Director of Public Prosecutions shall be subject only to the general and special directions of the Attorney General but shall otherwise act independent of the control of any other authority or person and in strict accordance with the law:
Provided that the DPP or the Attorney General may be summoned by the Legal Affairs Committee of Parliament to appear before it to give account for the exercise of those powers.”
The question to ask in the face of these two constitutional provisions is what is it that one should do when dissatisfied with the manner in which the DPP has carried out his constitutional powers or duties. The answer lies in the two constitutional provisions as I have hinted above. The LAC is made responsible for overseeing the due exercise of constitutional duties vested in the DPP. The question that LAC is bound to ask is what did the DPP do? The profile of the incident appears to indicate that the DPP discontinued the matter that was under private prosecution in presumed exercise of power conferred by section 99(2) paragraph (c) of the Constitution cited above.
Section 99(3) of the Constitution is also helpful because while it outlines the DPP’s power to exclusively make the decision to discontinue a case, it also binds him to legitimize the exercise of such power by being accountable to Parliament through LAC, by way of furnishing reasons for the discontinuance. It cannot be assumed that this oversight role by Parliament is ceremonial in nature. It is clearly for the purpose of prohibiting arbitrary exercise of such power. Thus LAC, when not convinced by the reasons given, should be in a position to object to the decision and allow the case to continue if the interest of justice requires it to see its day in court.
Having followed the case thoroughly, it is the accused defendants who have been dodging the appearance in court by advancing one excuse after another. For a defendant who believes the accusations leveled against him are not true, his interest would be to appear in court and be cleared after litigation. By avoiding litigation, it only points to one factor that the accused is scared of what he did and the court. His behaviour of avoiding the Court, therefore, cannot fall within the interest of justice. It can only be explained as a move engineered for a purpose of evading justice. When the DPP discontinues such a case, therefore, it only places him as an accomplice to the agenda of evading justice – and that amounts to violation of his oath and demonstration of incompetence.
It is reported that despite the public becoming aware of the development some six days ago, the DPP made and communicated the decision to discontinue the case somewhere on or around 1st April (the Fools Day). Today is 9th April, entailing that 9 days have elapsed so far. We have not heard any report that the DPP appeared before the LAC to account for his decision or that he intends to appear tomorrow. Thus to this very moment, the DPP has not given any reasons as to why he discontinued the case. To that extent, the DPP has exercised his power outside the law as provided by the Constitution.
It must be emphasized that the Constitution has created a mechanism whereby the LAC is vested with constitutional oversight responsibilities over the decisions of the DPP in the way he exercises his constitutional powers that are made available under section 99 (2) of the Constitution. Once a mechanism has been established especially by the Constitution, it is for a purpose. A democratic constitutional order is guided by other democratic principles such as adherence to the rule of law which is very fundamental to good order so as to maintain peace and tranquility and orderliness or sanity. As the oversight constitutional responsibility lies on the LAC, the DPP has a correlative duty to account to the LAC, but he has not done that to this date.
In the circumstances, the private prosecutors have the right to enforce their right which appears to be infringed by the unaccounted behaviour exhibited by the DPP, but this must be done in a correct procedure. The correct procedure is that as aggrieved with the decision of the DPP to discontinue the case in which they have an interest (which is a legitimate one for that matter), the first port of call should be the LAC. The Private Prosecutors should refer the matter to the LAC which has oversight responsibilities over the actions of the DPP in terms of his constitutional powers. That is the legal position as provided for in the Constitution.
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