Mistake for ACB to be free from DPP – off the wall of Mzondi Lungu

I see many others saying the constitution must change so ACB can unilaterally commence criminal proceedings against suspects without seeking approval from the Prosecution Services aka Director of Public Prosecution, what a mistake!

Even pa England the NCA which is revered pa Malawi cannot go alone in starting up cases in courts without seeking approval from the CPS ( Crown Prosecution Service). And sometimes the CPS may so no sometimes they may say yes depending on what evidence is available at the time of scrutiny. The reason for that is to make sure that there is proper scrutiny of the evidence whether it will be possible to bring about a successful conviction or not and if not then this may be just another wastage of tax payers’ money.

Dr Steve Kayuni, Director of Public Prosecution

Imagine you are pursuing to recover 10 billion kwacha which was looted. X and Z assisted Y to loot 10 billion kwacha and they are suspected of assisting an offender. However the evidence you have so far shows Y cannot be convicted unless if X and Z become state witnesses because they will disclose all material information to recover stolen assets. As a prosecutor in an ideal world you can make a decision, do you go for all three X, Y and Z with weak evidence or you can strengthen your case by agreeing with X, and Z that they would face a lesser charge, conviction or no case to answer if they work with you to convict Y the principal suspect and recover the 10 billion kwacha. The choice is yours based on your goals. I would choose to use X and Z as state witnesses to convict Y and recover assets or act emotionally to go after all of them X, Z and Y and sadly lose the case due to lack of strategy. These things unfortunately do happen in criminal litigation.

Mind you in criminal law the threshold is not on the balance of probability but beyond reasonable doubt that someone had intention and indeed carried out that intention to commit a crime. This is not an easy threshold to reach especially in cases where the evidence has been not collated properly or the evidence is disjointed so much that the mens reus and actus reus don’t meet at all. This means the ACB must not act on emotions or hearsay or on influence by what is posted on social media but on solid evidence.

This is where I agree with my learned friend Dr Steve Kayuni that if these things are not handled correctly or tactfully they may just bring embarrassingly shame to the whole ACB for rushing through cases and ignoring other factors that may bring down the whole case to collapse. If ACB is not checked on what evidence they have by the Office of the Director Public Prosecution we may have a dangerous scenario where people are arbitrary arrested and taken to courts even where the evidence itself is so weak or not there at all and in turn the hunter becomes the hunted where the acquitted ones in turn are after the state.

Therefore before you start building unnecessary negative view of DPP Dr Kayuni ask yourself whether ACB has solid evidence to win these cases or its just another public show which will end up in embarrassing the state aka ACB in taking on cases with weak or no evidence at all. I stand with the Director of Public Prosecution here.

**Views expressed were first posted on Mzondi Lungu Facebook and remains his views and not of the publisher*