Parliament admits it cannot stop DPP from dropping criminal cases anyhow

Malawi's Parliament has publicly acknowledged its constitutional inability to prevent the Director of Public Prosecutions (DPP) from discontinuing criminal cases, even when the reasons for such discontinuance are deemed unsatisfactory. This admission, made by the chairperson of Parliament’s Legal Affairs Committee, highlights a significant accountability gap within Malawi’s justice system. Legal experts and the Malawi Law Society have voiced grave concerns, particularly regarding the recent trend of high-profile corruption and abuse-of-office cases involving politically connected individuals being dropped. The current framework allows Parliament to scrutinise the DPP's reasons and make recommendations, but lacks the power to veto or compel the reinstatement of proceedings, prompting calls for urgent constitutional amendments to strengthen oversight and safeguard the rule of law.

Malawi's justice system is currently grappling with a profound challenge to its accountability mechanisms, following a candid admission by the country's Parliament. The chairperson of the Legal Affairs Committee of Parliament recently confirmed that the legislative body possesses no constitutional power to halt the Director of Public Prosecutions (DPP) from discontinuing criminal cases, irrespective of whether Parliament finds fault with the reasons provided for such decisions. This revelation has ignited a national debate among legal professionals and the public, exposing what many perceive as a critical flaw in the checks and balances designed to uphold the rule of law and ensure equitable justice.

The inability of Parliament to intervene directly in the DPP's exercise of the power of *nolle prosequi* has raised serious questions about prosecutorial independence versus accountability. The issue has gained particular prominence amidst a troubling pattern of high-profile corruption and abuse-of-office cases, often involving senior public officials and politically connected figures, being withdrawn. This article will delve into the constitutional framework governing the DPP's powers in Malawi, analyse the extent of parliamentary oversight, examine the implications of this accountability gap, and discuss proposed reforms aimed at strengthening the integrity of the justice system.

The office of the Director of Public Prosecutions in Malawi is a creature of the Constitution, established under Section 99. This section vests in the DPP significant powers, including the authority to institute and undertake criminal proceedings, to take over and continue any criminal proceedings, and crucially, "to discontinue at any stage before judgement is delivered any criminal proceedings instituted or undertaken by himself or herself or any other person or authority." This power of discontinuance, commonly known as *nolle prosequi*, is a fundamental aspect of prosecutorial discretion in many common law jurisdictions, intended to ensure that prosecutions are pursued in the public interest and based on sufficient evidence.

While the DPP is appointed by the President and confirmed by the Public Appointments Committee of the National Assembly, Section 101(2) of the Constitution stipulates that in the exercise of these powers, the DPP "shall be subject only to the general or special directions of the Attorney General but shall otherwise act independent of the direction or control of any other authority or person and in strict accordance with the law." However, a critical proviso to this independence is that "the Director of Public Prosecutions 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." Furthermore, whenever the power to discontinue proceedings is exercised, reasons for the exercise "shall be provided to the Legal Affairs Committee or Parliament within ten days."

The constitutional provisions, particularly Sections 99 and 101, establish a delicate balance between prosecutorial independence and accountability. While the DPP is granted broad discretion to discontinue cases, the requirement to provide reasons to Parliament's Legal Affairs Committee within ten days is intended as a safeguard against arbitrary or politically motivated decisions. However, the recent admission by Gilbert Khonyongwa, chairperson of Parliament's Legal Affairs Committee, underscores the inherent limitations of this oversight mechanism. He clarified that while the committee is mandated to scrutinise the reasons and make recommendations, it "has no power to veto or reject a decision to discontinue a case." This means that even if Parliament finds the DPP's reasons for discontinuance to be flawed or against public interest, it cannot compel the reinstatement of the case, rendering its oversight largely advisory.

This structural limitation has led to what legal experts and the Malawi Law Society (MLS) describe as a significant accountability gap. The MLS has expressed profound concern over a "troubling" pattern of discontinued prosecutions, particularly those involving individuals politically aligned with the current administration or former clients of the incumbent DPP, Fostino Maele. Such perceptions, whether accurate or not, erode public confidence in the impartiality and integrity of the criminal justice system. The High Court of Malawi has previously affirmed the executive nature of the DPP's powers, ruling that they are generally not subject to judicial review, with accountability primarily resting with the Legal Affairs Committee. This judicial stance further entrenches the current oversight deficit, as it limits avenues for challenging the DPP's decisions outside of the parliamentary review process.

The implications of this unchecked discretion are far-reaching. It creates an environment where prosecutorial decisions, especially in high-profile cases, can be perceived as influenced by political considerations rather than purely legal merits. This undermines the principle of equality before the law and fosters a climate of impunity, particularly for the powerful. In contrast, some other jurisdictions incorporate stronger checks, such as requiring judicial approval for the withdrawal of certain prosecutions or establishing independent oversight bodies to review prosecutorial decisions. Malawi's current reliance on the DPP's personal integrity, without robust institutional checks, is seen as a fragile safeguard for a constitutional democracy. To address this, the MLS has proposed constitutional amendments that would empower Parliament's Legal Affairs Committee to direct the DPP to reinstate cases where discontinuance reasons are unreasonable, and allow citizens with sufficient interest to challenge the DPP in court for non-compliance with such directions.

The acknowledgement by Malawi's Parliament of its inability to prevent the Director of Public Prosecutions from discontinuing criminal cases, despite finding fault with the reasons, lays bare a critical accountability deficit within the nation's justice system. While the Constitution grants the DPP independence and the power of *nolle prosequi*, the current oversight mechanism, which limits Parliament to scrutiny and recommendations without the power to veto or compel reinstatement, is demonstrably insufficient to prevent perceptions of political interference or abuse of discretion. This situation poses a serious threat to public trust in the rule of law and the fight against corruption.

For legal practitioners, this development highlights the challenges in ensuring justice, particularly in politically sensitive cases. The current framework may lead to increased public scepticism regarding the fairness and impartiality of prosecutions, potentially impacting the broader legal landscape. The proposals by the Malawi Law Society for constitutional amendments, which seek to empower Parliament and provide avenues for judicial challenge, represent a crucial step towards strengthening accountability. It is imperative for legal professionals, civil society, and policymakers to engage constructively in this debate to advocate for reforms that will ensure prosecutorial discretion is exercised responsibly, transparently, and in strict adherence to the public interest, thereby reinforcing the foundational principles of Malawi's constitutional democracy.