BLANTYRE-(MaraviPost)-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.
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.
Mpaka was reacting from Chakwera’s decision for reason firing Kayuni.
Commission of Inquiry into the December 6 2022 arrest of Anti-Corruption Bureau (ACB) director general Martha Chizuma faulted both Kayuni and Chizuma.
But Chakwera spared Chizuma for fear of losing America and British aids and political future.
“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,” Mpaka told Nation Newspaper.
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.
“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,” echoed Banda.
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 (IG) of Police Merylin Yolamu her two deputies, Deputy IG for Administration Happy Mkandawire and Deputy IG Operations Casper Chalera for the Police Service Commission to begin disciplinary proceedings over insubordination for not releasing Chizuma unconditionally as he had ordered.
As expected the Unites States Embassy in Malawi has applauded Chakwera for stressing his government’s commitment to fight against corruption.
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.
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.
