High Court Judge Violet Palikena-Chipao has rebuffed an application by former Solicitor General and Principal Secretary in the Ministry of Justice, Reyneck Matemba against the Anti-Corruption Bureau’s (ACB) intention to institute prosecution without obtaining consent from the Director of Public Prosecutions (DPP).
Matemba was arrested in August last year on allegations that he corruptly received USD10,000 as an advantage for the vetting process of the food rations contract from Zuneth Sattar, Managing Director of Xaviar Limited.
The Chief Resident Magistrate Madalitso Chimwaza released him on bail after he was charged of corrupt use of official powers contrary to section 25(1) of the Corrupt Practices Act (the CPA).
At that time, the State indicated that they could not proceed with plea before obtaining consent to prosecute from the DPP in line with section 42 of the Corrupt Practices Act
Magistrate Chimwanza committed to the High Court for trial.
When the Court convened for plea and directions, Matemba raised a preliminary issue asking whether the State had obtained consent from the DPP to prosecute him, which the State responded that consent was not necessary in view of the repeal of section 42 of the CPA
According to Justice Chipawo’s ruling dated July 11, 2023, Matemba argued that the cases cited by the State support his proposition that retrospective application of a statute is not permissible in cases which deal with substantive matters, including rights and obligations.
At the time Matemba was arrested and brought before the court, it was a requirement under section 42 of the CPA for the ACB to obtain consent to prosecute from the DPP before instituting proceedings.
It was however repealed by Parliament.
“He is correct in saying so and I wish to add that the cited authorities also state that retrospective application is permissible in certain circumstances including where the change in a statute only alters procedural requirements. The question in the present case would be whether the alteration in the CPA is a substantive matter or a matter of procedural requirement.
“This court’s view is that the requirement of consent to prosecute is more of a procedural requirement than a substantive rights and obligations. The requirement prescribes the procedure that has to be taken before proceedings can be commenced. It does not alter the rights of the Accused person. The obligation it created for the ACB was a matter of procedural requirement in regard to commencement of prosecution and not a matter of substantive rights.
“My understanding is that although under subsection 1, no prosecution can be instituted without consent of the DPP, where the ACB applies for consent and 30 days expire and without receive a grant of the consent or reasons in writing denying the grant of consent, the ACB can proceed with the matter as if consent to prosecute has been granted.
“All in all, I find the preliminary objection not attainable. It is my conclusion that the ACB can proceed to institute criminal proceedings against the Accused Person without requirement of obtaining consent from the DPP,” reads the ruling in part
