Law professor queries Attorney General over cashgate

Malawian professor of law, Danwood Chirwa, has faulted Attorney General Kalekeni Kaphale over alleged undue interference with the work of the investigative and prosecutorial agencies in relation to cashgate cases.

Kaphale has been facing criticism in some sections of the media and social media on allegations that he was interfering with Anti Corruption Bureau (ACB) in their operations as regards cashgate crackdown.

Chirwa, a professor of law at the prestigious University of Cape Town in South Africa, said the media reports against the top government lawyer “seem to have a ring of truth,”  judging from the utterances of Kaphale himself.

The law scholar said noted reports that quote Attorney General making “dubious comments” on the cashgate report.

Attorney General has previously been reported to have said that he demands updates from the prosecutorial agencies. There is also some evidence that some of his purported interferences have been sternly opposed by the Anti-Corruption Bureau authorities.

“My understanding is that the Attorney General has no mandate whatsoever in criminal prosecutions and investigations,” said Chirwa in comments emailed to Nyasa Times.

He added: “This is why we see the A-G appearing for government in civil cases only.”

He observed that some previous Attorneys General entangled themselves in these activities is due to “their own misplaced enthusiasm, lack of appreciation of their job description and lack of professionalism and due to the docility of the leadership of the prosecutorial agencies.”

Chirwa said Kaphale – as a top notch lawyer in Malawi – was expected to restore honour and decorum to the office of head of the legal bar “which it has long lost.”

Stated Chirwa: “The A-G’s primary and only job is to serve as the principal legal adviser to the government. This constitutional mandate has to be discharged professionally and independently.”

The law expert added: “It is in fact a ground for the dismissal of an Attorney General that he or she is compromised in his or her performance of this function. The only role that the A-G has in prosecutions relates to the general and special directions he may give to the Director of Public Prosecutions (DPP).

“The literature on this role suggests that the A-G cannot comment or give directions on specific cases the DPP (is prosecuting. His directions are also not binding and must not impair the independence of the DPP. His office is clearly not superior to the DPP. He’s not the boss! As far as the ACB is concerned there is no such relationship, tenuous as it already is with respect to the DPP, with the A-G.”

Chirwa further explained: “Even if the A-G had any authority over the ACB and the DPP, his involvement as counsel for accused persons in cashgate cases preclude him from doing and saying anything relating to cashgate. I have already commented on this simple ethical responsibility. For his, however, it is explicitly referred to in the constitution. He is supposed to delegate his authority to advise the government on cashgate to other people at the Ministry of Justice as the constitution clearly expects.”

The law scholar commended ACB deputy director Reyneck Matemba for the work he and his colleagues are doing in crackdown to corruption and that they need strong public support.

“For the first time we have someone with the right frame of mind and professionalism who understands his job and is prepared to guard his independence,” Chirwa said in praise of Matemba.

He said Matemba and the ACB face an “uphill battle”, saying the number of the accused and suspects is too high, and some of them have the wherewithal to threaten his life or use political means to swing public opinion against him and his colleagues.

“The enormity of the task is such that he cannot afford petty power struggles with the A-G. On the contrary, he needs the support of the A-G. Needless to point out that it is in fact good politically and intrinsically for this government to effectively and competently investigate and prosecute all cashgate cases,” stated Chirwa.

Chirwa recently also faulted Malawi Law Society (MLS) for failing to uphold the legal profession that respects minimum standards of integrity and ethical behaviour by letting lawyers answering criminal charges to continue representing clients in court.

Currently, lawyers answering criminal charges and representing clients on the same are private practice lawyers Ralph Kasambara (Senior Counsel) and Wapona Kita.

The two are being co-accused in conspiracy, possession of property suspected to have been stolen amounting to K55 million and money laundering, but at the same time they are also representing their clients in similar cases.

Sharing is caring!