Africa-Press – Malawi. Let’s say you were authorised to allow or veto prosecutions, and one day, a prosecutor seeking to prosecute your relative comes to seek approval. a) What are the chances you would approve?
b) What’s the likelihood you would say, “after reviewing the file, I think you need to do a, b and c to ensure that this low-life relative of mine gets locked up”? What would be the right thing to do under such circumstances? I will address this question but first, kindly permit me to digress.
In a story by Aesop, a man had two pets. A cat and a monkey. These two were buddies and were getting into all sorts of mischief together. They loved food and always tried to finagle more by hook or crook.
One day they were sitting by the fire, and in the fireplace, their master was roasting chestnuts. On the mischievous duo’s mind was how to get the chestnuts before the master returned.
“I would gladly get them,” said the sly monkey. “But you are much more adept at such things than I am. If you draw them out, I’ll divide them equally.”
The gullible cat, flattered, stretched out her paw very carefully, pushed aside some of the embers, and quickly withdrew her paw. She tried again; this time, a chestnut was pulled half out of the fire. A third time and a whole chestnut was out.
She repeated this several times, burning her paw severely. Now, as soon as she pulled a chestnut out of the fire, the monkey ate it. The monkey repeated this until the last chestnut was safely tucked in its belly.
Suddenly, the master came in, and the two rascals scampered away; the cat with a burnt paw and no chestnuts and the monkey with a belly full of chestnuts but no single burn.
From that time on, Aesop says, the cat contented herself with mice and rats and vowed never to enter anything resembling a Tonse-like alliance or pact with the monkey.
The cat learnt the hard way that flattery, like perfume, should only be smelt, not swallowed, and lo and behold, the term using “cat’s paws” was born.
The term has since evolved. In the United States, for example, the “cat’s paws” found its way into US employment discrimination law by Posner in 1990 (Shager v. Upjohn Co., 913 F. 2d 398, 405 (CA7)). Further, in a Supreme Court opinion, Justice Scalia in Staub v. Proctor Hospital, 562 US 411 (2011) likens the cat to a prince who, flattered by a king, performs unpleasant services on the king’s behalf but receives no reward.
From the Aesop’s Fables and majority opinions by Justice Scalia, let’s detour to the United Kingdom en route to Malawi. Following a three-year-long investigation by Britain’s National Crimes Agency (NCA) into his suspected corrupt dealings with the Malawi government, Britain’s anti-corruption authorities arrested Malawian-born businessman Zuneth Sattar in early October 2021.
This arrest shook the core of the Malawi Government, and there is virtually no office, high or low, spared. The first local official arrested was former Minister of Lands, Housing and Urban Development Kezzie Msukwa over alleged corruption in land deals.
Ironically, instead of marking the genesis of corrupt low-lives woes, it was the beginning of sleepless nights for ACB Director General Martha Chizuma.
In or around January 2022, while waiting for the Director of Public Prosecutions (DPP)’s consent to start prosecution, she was entrapped and recorded by a person she trusted.
That person is yet to be investigated for a possible criminal offence under Section 319A(f) of the Penal Code, under which engaging in deceit to induce another person to do or say something that she or he is lawfully entitled to abstain from doing or saying is an offence punishable by seven years imprisonment.
Following the entrapment, while lawsuits, demonstrations, and threats of protests have stuck on Martha Chizuma like a stamp to a letter, neither the Director of Public Prosecutions (DPP) Steven Kayuni nor the police has shown the slightest interest in the actual offender.
On the contrary, Chizuma was summoned in April 2022 to the National Police headquarters for questioning over that leaked audio. This irked many stakeholders and forced President Chakwera to reign his dogs in.
Anyway, seeing zero progress in Sattar-related cases, in February 2022, the Parliamentary Legal Affairs Committee (LAC) separately summoned DPP Steven Kayuni and Martha Chizuma.
After meeting the two and learning about the deadlock over “consent to prosecute”, the LAC resolved to amend the Corrupt Practices Act (CPA) and unshackle the ACB. While Parliament was negotiating the amendment, the Tom-and-Jerry tug-of-war between the DPP Steven Kayuni and the ACB DG Martha Chizuma worsened.
For example, in a leaked letter dated 19 July 2022, Kayuni raised severe allegations against the ACB. This motivated the LAC to push harder, and the CPA Amendment Bill giving the ACB power to prosecute cases without obtaining consent from the DPP was successfully tabled and passed.
If the LAC thought this was the end of the cat-and-mouse brawling between the DPP and the ACB, they have another thought coming. A few weeks ago, Kayuni was at it again, throwing spanners in the works in the case against Vice-President Saulos Chilima. He barred lawyer Modecai Msisha from prosecuting the case.
However, this past week, Chizuma’s woes reached a crescendo. She was arrested on Tuesday and charged with prejudicing judicial proceedings before being released on bail. This was after DPP Steven Kayuni “alleged that he was injured by allegations [of corruption] that were made by the ACB director-general in a leaked audio clip” this year, the Malawian police said.
Now, what do we make of all this? ACB has investigated, arrested, and tried many high-profile people with varying degrees of success. However, it has never faced the pushback it is getting now on Sattar-related cases. The Director of Public Prosecutions (DPP) is ironically leading the resistance.
The second issue is the intense disinformation and misinformation campaign war on both mainstream and social media. The third is that vis-à-vis the leaked audio, the DPP, the police and what have you seem totally ignorant of the existence and contents of Section 319A(f).
The fourth issue is in the question that I shelved earlier, i.e. what should the DPP do with cases involving his or her relatives? This applies to the current DPP because he admitted being related to one suspect while meeting the LAC. This being the case, shouldn’t he have recused himself?
In my book, he goofed big time because, for many Malawians it doesn’t matter whether his actions are right or wrong, the mere potential of conflict of interest:
a) raises a lot of questions, b) sets the bad precedence, and c) sends the wrong message to subordinates in similar situation. That is not all. More disturbing is that justice is not being seen to be done. I, for instance, am having a tough time:
• Separating which of his arguments and actions are driven by conflict of interest, i.e. saving uncle’s ass or self-preservation and,
• Apart from failing to recuse himself, what else is he doing vis-à-vis Sattar impeding the flow of justice?
If he is not careful, like the cat in Aesop’s fable above, it will be too late by the time he realises that he has burnt his fingers. At his age and with his potential, that would be a shame.
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