Malawi Law Society (MLS) says President Lazarus Chakwera’s removal of Director of Public Prosecutions (DPP) Steven Kayuni for “unsound management of a personal grievance” could be in violation of Section 102 of the Constitution.
In a brief response to The Nation questionnaire on Wednesday following the President’s reaction to the Commission of Inquiry into the December 6 2022 arrest of Anti-Corruption Bureau (ACB) director general Martha Chizuma, MLS president Patrick Mpaka said the decision to remove Kayuni may be fine if he has accepted such a position, but it could be tricky if looked at in the context of Section 102 of the Constitution.
He said: “If Kayuni accepts the position taken by the President, that’s fine. If he does not, there may be an interesting situation because unsound judgement in the management of a personal grievance may not necessarily entail incompetence or compromise in exercise of duties of office.”
Section 102 (2) of the Constitution provides that a person may be removed from the office of the DPP if he or she is incompetent, compromised in the exercise of his or her duties to the extent that his or her ability to exercise his or her functions impartially is in serious question, incapacitated or has attained retirement age.
Blantyre-based private practice lawyer Jai Banda, an anti-money laundering law expert, echoed the Law Society’s position and said while the President has the prerogative to fire the DPP, Kayuni could either have been suspended or redeployed.
He said: “His reason that this was something personal and that there was conflict of interest, perhaps, the President might just have suspended Kayuni or send him to another department instead of actually dismissing him from the civil service just like that.”
The President’s decision followed a report by the inquiry headed by retired Justice of Appeal Edward Twea which faulted both Chizuma and Kayuni.
The inquiry said Kayuni, who lodged a criminal defamation complaint against Chizuma, demonstrated lack of sound judgement by prioritising his self-interest over the responsibility of his office in relation to the leaked audio where Chizuma was purportedly disclosing investigation details to a third party in January last year.
On the other hand, the report said Chizuma committed offences and that she also demonstrated lack of sound judgement in the leaked audio, and recommended appropriate action to deal with her conduct.
During a televised address from Kamuzu Palace in Lilongwe on Wednesday, Chakwera said the findings of the report have challenged the biases of many, including himself.
The President said he considered the act of unsound judgement on the fired DPP to be a breach of public trust as it was a serious matter for Malawi’s lead prosecutor to have a moment of unsound judgement or a conflict of interest.
He said that during his meeting with Kayuni, the fired DPP, he expressed deep regret on the matter, but made it clear that he felt deeply wounded by the continuing damage that the leaked audio caused to his reputation and personal safety.
The President said: “I consider this a great failure for Dr. Kayuni and a great disappointment to me.
“As such, to prevent him from using a public office to settle a personal injury, I have removed Dr. Kayuni from office with immediate effect and I thank him for his many years of service.
“In his place, I have appointed Masauko Edwin Chamkakala as Malawi’s new Director of Public Prosecutions…”
Turning to Chizuma, he said he had already taken a decision on the matter last January, but that he would not stop anyone from seeking redress against her over the leaked audio as determined by the High Court of Malawi last September.
Chakwera said: “I stand by my decision to not fire Ms. Chizuma a year ago and I stand by my choice of her as my champion against corruption today, but I have never said that this means that no one else is allowed to bring a case against her for their own injuries, because that would be unconstitutional.
“Even Ms. Chizuma herself has the constitutional right to file a police complaint against the person who recorded her against her wishes, if she so decides, in which case the law would take its course. That is our justice system.”
The President also recommended to Inspector General of Police Merylin Yolamu her two deputies, Deputy IG for Administration Happy Mkandawire and Deputy IG Op e r a t i o n s Casper Chalera for the Police Service Commission to begin disciplinary proceedings over insubordination for not releasing Chizuma unconditionally as he had ordered.
Meanwhile, the Unites States Embassy in Malawi has applauded Chakwera for stressing his government’s commitment to fight against corruption.
“We welcome the President’s important steps taken today to strengthen this fight. The United States will continue to support these efforts to help Malawi achieve its development goals,” reads a brief statement said.
On his part, Human Rights Defenders Coalition (HRDC) chairperson Gift Trapence said the office of the ACB director general has been under attack for long and was isolated, making the working environment difficult.
“HRDC is happy that the Pres ident acknowl edged the lack of cooperation and coordination among agencies in the fight against corruption. HRDC, therefore, calls for real commitment beyond the Presidential speech,” he said.
In a separate interview, accountability expert Willy Kambwandira said he was happy that the President did not use findings of the inquiry to victimise individuals leading the fight against corruption, arguing whatever happened was corruption fighting back.
Human Rights Consultative Committee, in a statement last evening, said it was not yet convinced if the Judiciary will accord Chizuma and ACB impartiality in its submissions given the fact that Judiciary remains one of the injured institutions by the Audio.
Both Chizuma and Kayuni could not be reached for comment on Wednesday.
Police arrested Chizuma on Tuesday following a complaint lodged by now suspended DPP Steven Kayuni in his personal capacity. Kayuni alleged he was injured by allegations made by Chizuma in a leaked audio clip in January this year
