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Blantyre Magistrate’s Court on Thursday threw out an application by Humphrey Mvula’s lawyer Kalekeni Kaphale not to allow Anti-Corruption Bureau (ACB) director Gustav Kaliwo prosecute his client because he was not confirmed by Parliament’s committee on public appointments when he brought the case. But the court ordered the bureau to drop three counts and amend three others that were levelled against Mvula.
Mvula’s lawyer Chimwemwe Kalua told the court that the law requires that the ACB should constitute of a director, deputy director and other officers to discharge its duties. In the absence of the bureau’s chief, Kalua said, the law requires that a deputy director could act or the President could appoint someone to act in the absence of the two.
Kalua added that Kaliwo had no legal mandate to prosecute Mvula because his appointment as the bureau’s chief had not yet been confirmed by the parliamentary committee.
He said the ACB had no mandate to prosecute Mvula because the body had no deputy who could act in the absence of the bureau’s chief.
Delivering the ruling on Thursday, senior resident magistrate David Kadwa said powers to prosecute rest in the bureau itself and not in individuals who work in it.
He said in essence it is not the individuals who are prosecuting the case but the bureau.
“The case hinges on the question of mandate to prosecute. Powers to prosecute are vested in the bureau and not in individuals alone. So I hold that the ACB has the capacity to prosecute,” said Kadwa.
Kadwa also ruled that Kaliwo has the mandate to prosecute cases for the bureau even without the confirmation.
“I hold that even if the director of ACB has not been confirmed in appointment any duties carried out by him would still be valid,” said Kadwa
But Kadwa upheld the application by the defence lawyer to strike off some counts from the charge sheet because “they are embarrassing and lack particulars of the benefits the accused is alleged to have received”.
“The state concedes that count five lacks particulars and I hold that counts one and two should be amended to give the accused sufficient particulars as in their present form they would embarrass the accused.
“I therefore, order that counts three and four be removed from the present charge sheet until there is determination on the issues raised by the constitutional court,” said Kadwa.
The former Shire Buslines boss is accused of corruptly receiving benefits and abusing his office in awarding tenders to suppliers to the company.
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