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Malawi: Chizuma Arrest Commission of Inquiry Faults DPP Kayuni, Police On the Illegal Arrest

The Director of Public Prosecution (DPP) Dr Steven Kayuni and Malawi Police Service (MPS) officers have been faulted to have abused their offices in the illegal arrest of the Anti-Corruption Bureau (ACB) Director General Martha Chizuma.

This is contained in the official report which the Commission of Inquiry that President Chakwera President Lazarus Chakwera constituted 14 days ago to probe circumstances that led to Chizuma’s arrest on the dawn of the night of December 6.

On that day, a gang of police officers arrested Chizuma following a complaint from DPP Kayuni on allegations that the ACB boss had injured him in her leaked audio clip in January 2022 — in which Chizuma was caught discussing office issues with a third party on matters concerning corruption investigations involving Zuneth Sattar and his associates.

The Commission comprised citizenry of respectable standing of Justice Twea as chairperson; Enoch Chibwana; Monsignor Patrick Thawale; former Inspector General of the Malawi Police Service, Lot Dzonzi; Maureen Kachingwe; private lawyer John Gift Mwakhwawa; Innocencia Chilombo; Kassim Mdala Amuli; Reverend Elsie M. Tembo; Senior Chief Tengani; Lingalireni Mihowa and Frank Kalowamfumbi as the secretary.

The 12-member Commission of Inquiry was to establish the events of public and national interest concerning allegations of improper conduct, abuse of office and illegality surrounding Chizuma’s and all matters ancillary.

The Commission found Steven Kayuni was not entitled to bring a personal complaint based on issues pertaining to his office as DPP, saying while as the DPP, he represented the State in the case of review before Justice Mtalimanja and that he was conflicted when he decided to lodge complaint in his personal capacity to the exclusion of any others whose rights may have been injured by the leaked audio.

The report contends that Kayuni demonstrated lack of sound judgement by prioritising his self interest over the responsibility of his office in relation to the leaked audio and recommends that appropriate action be taken to deal with his conduct as he was deemed to have not been proactive in recusing himself where there was potential conflict of interest.

In its recommendations to President, the Office of DPP, the Police and other relevant stakeholders, the Commission maintains that there

exists reasonable grounds to suspect that Chizuma committed offenses and that she demonstrated lack of sound judgement in the leaked audio and recommends appropriate action be taken to deal with her conduct in so far as the leaked audio is concerned.

Evidence received by the Commission shows that there are serious mistrust issues among the different offices that are mandated to fight corruption with Chizuma pointing out that she was receiving pressure against prosecution of some corruption cases and non-cooperation from offices that are supposed to support the ACB.

On the other hand, the DPP and the Attorney General (AG), Thabo Chakaka Nyirenda testified that they had challenges with the manner in which Chizuma was handling confidential information and exposing sensitive information to third parties, and the lack of collaboration from the ACB DG on some cases such as the Cement-gate.

The Commission’s view is that the leaked audio creates the impression that Chizuma does not trust anyone, including but not limited to the judiciary, media, civil society, private and public officers in the fight against corruption.

It is also apparent, as in the determination of the Commission, that corruption exists in the country and creates a very difficult environment to work in — thus the Commission deducing that Chizuma displayed a sense of being isolated.

“However, it was also evident that in her commitment to fight against corruption, she has not been able to carry along critical offices that she needs to fight corruption and consequently she appears to be working alone and the fight against corruption has been compromised.”

The Commission thus recommends that urgent action be taken to restore the dignity, integrity and trust of the offices of that are involved in tackling corruption and further recommends reorganization of the leadership in the government offices responsible in the fight against the vice.

Furthermore, the ACB, the DPP, the AG and the Judiciary “should collaborate to complete prosecution of the major corruption cases to restore public confidence in the fight against corruption”.

The evidence before the Commission shows that critical members of the Executive were aware of Chizuma’s arrest before commencement of Parliament business of Tuesday, December 6 and that the government side had a caucus before business started.

The issue of the arrest was prompted by the Opposition and it took time before the government side brought an official statement and the delay in the issuance of the government statement resulted in suspension of proceedings of the House on more than one occasion.

The Commission also found out that the working relationship of Chizuma, the AG and the DPP is not cordial — that there is animosity and mistrust which started with the Sattar case and “the animosity has continued in spite is efforts by the Minister of Justice to mend the differences”.

The poor working relationship, as found out by the Commision, has jeopardized the operations of both offices and undermined the integrity of both — negatively affected the nation’s pursuit to fight corruption.

The Office of the President & Cabinet (OPC) was found that some formalities for action and record keeping were not complied with as should have been the case, saying there were lapses in formalizing the suspension of the DPP after the Minister of Justice announced the decision in Parliament on December 7 — yet at his testimony before the Commission Kayuni had not yet received his letter of suspension.

Chakwera made a directive on the unconditional release of Chizuma in the morning of December 6 but there was no written instructions from the relevant Government Ministries to formalise the directive and the Commission recommends that the officers responsible for “signifying oral directives from the President or Ministers must do so at the earliest opportunity to avoid communication and decision vacuum”.

Evidence shows the ACB is isolated and reduces its effectiveness as the driver of the anti-corruption agenda and it has been recommended that it should be rebuilt and to reinforce partnerships with other law enforcement institutions on matters pertaining to corruption.

While acknowledging the independence of the office of the DPP, the Commission found that there was no formal coordination on procedures regarding some of his external travels and his leave entitlements as he proceeded on leave and went out of the country without completion of the required leave formalities between the Ministry of Justice and the OPC — as a result, when Chizuma was arrested no one knew that the DPP was out of the country.

Evidence received is that the DPP received over 400 threatening calls and texts associated with his duties but none was reported to the Police and given the sensitive nature of the office the DPP and the security of the office holder, “it is important for any security threat to be reported to the national security agency”.

On the part played by the Malawi Police Service (MPC), the Commission says evidence gathered shows that other than officers involved in the planning of the arrest, no other authority had prior information of the arrest of such a high profile office holder.

It quoted MPS Standing Order 283, that states: “When it is necessary to effect or cause to the arrest of a person in the employ of the Government, the head of such person’s department or the senior member of the department in the district should be informed without delay. Where practicable time should be given to enable the person to be relieved of his duties prior to the arrest”.

“The Police did not keep records for the planning meetings of the operation and neither did they have records of the operational order for arrest giving evidence that the centre of the authority was displaced and there was serious lack of accountability on actions taken.

“Some officers that should have been involved in the decision making processes of the arrest were bypassed because they were recently appointed to their positions and this created the impression that the operation could have been pre-arranged.

“The MPS also did not hold an immediate debriefing and a post mortem meeting after the operation in order to review what was done right and what was done wrong following the public reaction and interest the matter generated in Parliament.”

This, says the Commission, deprived the MPS of lessons that would have been learnt and the recommendations is that whenever the MPS conducts such operations of public interest — that generates sensitivities — “debriefing and post-mortem meetings must be held with urgency for accountability and to generate lessons that can enhance thier professionalism”.

On the dawn of the night of December 6, a gang of police officers arrested Chizuma following the complaint from Kayuni that the ACB boss had injured him in that leaked audio clip in January 2022 — in which Chizuma was caught discussing office issues with a third party.

But the state has dropped all the charges levelled against her but Kayuni, who was immediately suspended after Chizuma’s arrest, claimed he did it in his personal capacity.

Facts on the ground — as established by an entourage of Members of Parliament led by Leader of Opposition, Kondwani Nankhumwa that visited her when she had just been released on bail after being recorded a statement at Namitete Station — were that Chizuma was highly humiliated to an extent that she was ordered to kneel down before the police officers who arrested her.

Nankhumwa told Parliament after the MPs’ visit that one female police officer attempted to assault her as they drove Namitete Station but was stopped by her colleagues.