The Director of Public Prosecution (DPP) began his appearance before the Parliament through the Legal Affairs Committee (LAC) to give reasons as to why he made decisions to discontinue a number of criminal cases.
By law, the DPP is empowered to discontinue any criminal proceeding at any stage provided the Court has not yet rendered a decision on such proceeding (and that is according to section 99(2)(c) of the Constitution).
However, the exercise of this power is subject to providing reasons and such reasons are communicated to the people through the LAC which has the Constitutional mandate to review the DPP’s decision [according to the High Court Judgment in The State v Director of Public Prosecution; Ex-parte Gift Trapence and Timothy Mtambo (Constitution Cause 1 of 2017) [2018] MWHC 1293]. Also see section 100(2)(a) of the Constitution.
The underlying purpose of requiring supply of reasons is to ensure that only proper and fit reasons should determine why cases should be discontinued.
Such proper and fit reasons (and this is my view) may include lack of proper and/or sufficient evidence in which the prosecution process would simply be an exercise in futility while expending public resources.
Further, according to section 101(2) of the Constitution, the DPP shall in the exercise of the powers conferred on him be subject only to the GENERAL AND SPECIFIC DIRECTIONS OF THE ATTORNEY GENERAL, otherwise beside the Attorney General, the DPP shall 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.
So you see: the DPP does not have unlimited powers nor can he operate according to his private whims and caprices.
In the thick of his hurricane Nolle Prosequi (the discontinuance of criminal cases) the media reported that the DPP acted without even informing the Attorney General of his discontinuance errands such that the Attorney General had to hear about these developments from the media.
Well, one may argue that when the general and specific instructions of the Attorney General have not come forward, then the DPP is free to act independently. Theoretically that could be correct.
But does that offer any coordination in practice? Isn’t coordination essential in running affairs of the Government?
Well, let us leave that argument for another day, with an emphasis that the Attorney General has, on the circumstances, the Constitutional power to give any general or specific directions regarding any issue that the DPP ought to act on.
The business of his appearance yesterday was about the discontinuance of a criminal case involving Paramount Holdings Limited and it’s three directors.
For those who are not familiar with the case, Paramount Holdings and it’s three directors including Prakash Ghedia stand charged of criminal offences related to making and uttering fraudulent documents for the purposes of winning tender business in both private and public institutions.
The forged documents were presented for tenders at Ministries of Education, Health and Local Government as well as Kamuzu University of Health Sciences, UNC Project and Jhpiego (according to media reports).
I have followed this matter closely and have witnessed how the accused have been dodging court appearances while making endless efforts to have this matter not see a day in court.
For a defendant who believes the accusations leveled against him are not true, his interest would be to appear in court and be cleared by the court. By avoiding litigation, it only points to one factor that the accused is scared of what he is accused of doing.
His behaviour of avoiding the Court, therefore, cannot fall within the interest of justice. It can only be explained as a move conceived for a purpose of evading justice.
When the DPP discontinued such a case, therefore, it only placed him as an accomplice to the agenda of evading justice – and that amounts to violation of his oath and demonstration of furtive agenda.
The finding by the LAC that the reasons given by the DPP for discontinuance of this particular case are not satisfactory is not only welcome, but also a huge relief.
Forging documents is one of the serious crimes that procuring entities are fighting with. On 29th January this year (2024), the Magistrate Court in Lilongwe sentenced a Malawian named Harold Mwalambula to 3 years and 6 months’ imprisonment with hard labour for presenting a fake PPDA certificate to Japanese International Cooperation Agency (JICA).
Now, to have a big company like Paramount Holdings do such a thing and go scot-free on account of Nolle which does not have convincing reasons is intolerable and despicable. Paramount and its directors should face the music of their deeds.
The opinions expressed in this article are not those of the publication, but of Lord Denning QB
