Kabambe v Nyasulu & The Director of Public Prosecutions (Judicial Review 2 of 2025) [2025] MWHC 12 (28 April 2025)

IN THE HIGH COURT LILONGWE DISTRICT REGISTRY FINANCIAL CRIMES DIVISION JUDICIAL REVIEW CAUSE NUMBER 02 OF 2025

THE STATE (ON THE APPLICATION OF) DR DALITSO KABAMBE………………………………..CLAIMANT

-AND-

KAMUDONI NYASULU, (PUBLIC PROSECUTOR)…………………….…..1ST DEFENDANT

THE DIRECTOR OF PUBLIC PROSECUTIONS…………………..……2ND DEFENDANT

Coram

HON. JUSTICE R.E. KAPINDU Mr. Maele, Counsel for the Claimant Mr. Nyasulu, Counsel for the Defendants Mr. Dzikanyanga, Court Clerk/Court Interpreter

Ruling

KAPINDU J,

1. In the present matter, the Claimant, Dr. Dalitso Kabambe, former Governor of the Reserve Bank of Malawi (RBM), has applied for permission to apply for judicial review. The application is brought under Order 19 Rule 20 of the Courts (High Court)(Civil Procedure) Rules, 2017 (the CPR, 2017). The intended action is against the Director of Public Prosecutions (the DPP) and Mr. Kamudoni Nyasulu, the Public Prosecutor.

2. The Claimant, along with others, is being charged with the offence of soliciting to break the law, contrary to Section 124 of the Penal Code as read with Sections 27, 39, 63 and 64 of the Reserve Bank of Malawi Act.

3. The charge alleges that the Claimant as Governor of the Reserve Bank of Malawi (RBM), Mr. Henry Mathanga as Executive Director and later Deputy Governor of the RBM, Mr. Samuel Malitoni as General Counsel of the RBM, Mr. Cliff Kenneth Chiunda as Secretary to the Treasury, (all of these are now former holders of those respective offices), between April 2020 and July, 2020, at the RBM in the City of Lilongwe, solicited the Board of Directors of the RBM to contravene the law on appropriation of profits to pay Government for the Covid -19 Disaster response, Six Billion Two Hundred Million Malawi kwacha (K6, 200,000, 000.00) being the property of the Government.

4. The Claimant, in his application, is essentially asking this Court to do two things. Primarily, he is asking the Court to immediately nip the above criminal proceedings in the bud, by way of termination. Secondly and in the alternative, by necessary implication, he is inviting the Court to make an order that the said criminal proceedings may only proceed if some other people, as shown below, are also charged with the same crimes as those that the Claimant and others abovementioned are facing.

5. The application is supported by grounds on which the relief is sought, a sworn statement verifying the facts relied in support of the application for permission to apply for judicial review and for an interim stay of the decision, and skeleton arguments in support of the application.

6. Originally, the Claimant’s application came in the form of a without notice application but the Court, upon perusing the contents of the same, ordered that the application was to come with notice (inter partes).

7. The Claimant states that in 2020, in the wake of the global COVID-19 pandemic, the Board of the RBM unanimously passed a resolution to donate MK6.2 billion to the Malawi Government in order to assist in the fight against the COVID-19 pandemic. He states that this Board resolution was passed via a “robin round” method, that is to say via

email, due to the suspension of physical meetings during the pandemic period.

8. He states that at the material time, the RBM Board members included himself, as Governor and Chairperson of the Board, Dr. Grant Kabango, Mr. Henry Mathanga, Mrs. Maria Msiska, Mr. Cliff Chiunda, Mr. Pius Mulipa (deceased), Dr. Martin Phangaphanga (deceased), and Mr. Aleksandr Kalanda (deceased).

9. He states that on or around 10 th December, 2024, the DPP decided to charge him and two other Board members, namely Mr. Henry Mathanga and Mr. Cliff Kenneth Chiunda, with the offence of soliciting to break the law under Section 124 of the Penal Code (Cap 7:01 of the Laws of Malawi) as read with Sections 27, 39, 63, and 64 of the RBM Act (Cap. 44:02 of the Laws of Malawi).

10. He states that the prosecution alleges that the Board resolution to donate MK6.2 billion to the Government was unlawful. He however expresses surprise, concern and consternation that the Prosecution is not charging two other Board members, namely Dr. Grant Kabango and Mrs. Maria Msiska, who were equally part of the unanimous Board decision herein.

11. The Claimant argues that the decision to prosecute him and the two other former Board members, while at the same

time leaving out the two other members who were equally involved in making the said decision, amounts to selective and discriminatory prosecution, and that this violates the right to equality and equal treatment before the law under Section 20 of the Constitution of the Republic of Malawi (the Constitution).

12. The Claimant contends that if the said resolution of the Board was unlawful as alleged by the Prosecution, then all the Board members who were part of the decision should have been prosecuted, not just a select few.

13. The Claimant argues that the decision to prosecute him amounts to an abuse of prosecutorial discretion, as there is no reasonable basis for the selective decision to prosecute him and the two others while excluding another two available former Board members. In this regard, the Claimant argues that the said decision by the prosecution is tainted with bad faith, unconscionable, and unconstitutional.

14. He consequently seeks several declarations and orders from the Court, including:

(a) A declaration that the decision to prosecute him is an abuse of prosecutorial discretion and unconstitutional;

(b) A declaration that the decision is discriminatory in that it violates the right to equality before the law under Section 20 of the Constitution;

(c) An order to quash the decision to prosecute him;

(d) In the event that permission to apply for judicial review is granted, an order to stay the hearing of the criminal case pending the outcome of the judicial review herein;

(e) An order for expedited hearing of the judicial review application; and

(f) An order for costs.

15. The Claimant refers to Section 24 of the Penal Code (Cap. 7:01 of the Laws of Malawi), which states that:

“Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and shall be liable to be punished accordingly, unless it is proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be

committed, or that he took all reasonable steps to prevent its commission.”

16. He submits that in terms of this provision, if any offences were committed at all by the RBM through its Board, then every person charged with or concerned or acting in the control or management of the affairs or activities of the RBM as a body corporate, is guilty of that offence and liable to be punished accordingly.

17. He further contends that the decision to prosecute him herein amounts to an abuse of prosecutorial discretion, and that it is also unreasonable in the Wednesbury’s sense. By this he suggests that the decision to prosecute him under these circumstances is so absurd that no reasonable authority could have made it. It is his submission that the said decision is tainted with bad faith and is unconstitutional.

18. The Claimant emphasises that he has no alternative remedy to challenge the impugned decision herein, other than by way of judicial review, and that the judicial review process is the only appropriate procedure for examining and determining the lawfulness of such decisions.

19. The Claimant further submits that he has sufficient interest and therefore locus standi to bring the present action because he is directly affected by the impugned

decision herein, and that he seeks to enforce his constitutional rights to equality and to be free from arbitrary and discriminatory treatment in the form of selective prosecution as is the situation in the present case.

20. The Claimant proceeds to argue that the present case raises important constitutional issues related to the rule of law and the protection of individual rights, stating that the public interest lies in ensuring that prosecutorial decisions are made fairly and without discrimination.

21. He relies on section 46(2) and (3) of the Constitution, arguing that this Court has the authority to grant appropriate remedies where his rights or freedoms are unlawfully denied, violated, or threatened.

22. The Claimant therefore seeks permission from this Court to apply for judicial review, and, if such permission be granted, he seeks an interim stay of the criminal proceedings, arguing that the balance of convenience lies in granting such stay of proceedings in order to prevent irreparable harm to his reputation and career.

23. On its part, the State argues that the Claimant’s application for permission to apply for judicial review herein discloses no cause of action, injury, or damage suffered, nor does it reveal any threat thereof.

24. The State contends that the relief sought by the Claimant, namely to quash the decision to prosecute him and others on the grounds of selective prosecution, is misconceived. The State submits that the charge in question treats all Board members equally as a collective body, and that no individual has been charged for merely participating in the resolution.

25. It is the State’s further submission that the legal threshold for assessing the lawfulness or reasonableness of a prosecutorial decision has not been met, as no charges have been filed yet in the High Court, and no summaries of witness statements or relevant documents have yet been submitted.

26. The State maintains that the Claimant’s assertions of illegality and bad faith in the decision to prosecute him are purely speculative, premature, and that they are based on a misapprehension of the legal process that governs prosecutions.

27. The Claimant, according to the State, has omitted material facts concerning the distinct statutory and administrative responsibilities of the office of Governor that he held, and those of the Deputy Governor, the General Counsel, and the Secretary to the Treasury, and that he has failed to clarify who initiated the Board Paper or whether the “round robin” resolution was lawful.

28. The State acknowledges the Claimant’s skeleton arguments but asserts that they fail to support the relief that is being sought.

29. It is the State’s submission that the foreign case law cited by the Claimant herein has not been properly contextualised within Malawi’s constitutional and criminal procedure law frameworks, and that the issues that he raises have already been considered and addressed in our domestic jurisprudence.

30. The State points out that additionally, no affidavit has been filed in support of the application, thus rendering the documents attached to the application to be legally wanting, and thus leaving only insufficient evidence, if at all.

31. The State argues that the application herein improperly conflates civil and criminal procedure, as it attempts to invoke the civil process of judicial review in matters that are already governed by the criminal procedure law.

32. The State emphasises that the judicial review process under the Courts (High Court) (Civil Procedure) Rules, 2017 requires a demonstration of how the Claimant’s rights have been affected or threatened, and that in the instant case, this is something that the Claimant has not established.

33. The CP & EC, the State argues, governs all criminal matters in Malawi and provides mechanisms for addressing threats to or violations of rights during criminal proceedings, thereby rendering judicial review unnecessary and inappropriate in the present circumstances.

34. The State states that the decision to prosecute is actually a process, a procedural continuum, that involves multiple stages, and that the final decision to prosecute in this matter had not yet been made at the time of the application, as the charges had not yet been formally filed in the High Court.

35. It is the State’s case that that the accused persons herein will be afforded an opportunity to challenge the charges during the plea and directions hearing and through other processes for challenging the same in accordance with the CP & EC, including objections to formal defects and submissions on various issues as may emerge in the case in the course of trial.

36. The State emphasises that sections 15, 20, 41, 42, and 46 of the Constitution support the enforcement of rights in criminal proceedings, and that such enforcement needs not be done through collateral civil processes under the civil procedure law, such as the process of judicial review herein.

37. The State holds the view that the application herein is unnecessary, in that all the alleged threats to constitutional rights may be appropriately addressed during the criminal trial process itself.

38. The State contends that the Claimant herein has alternative and effective remedies available within the criminal procedure framework, and that the mechanism of judicial review should only be resorted to in exceptional cases, as a last resort, and that the present circumstances do not come close to meeting that threshold.

39. The State proceeds to state that the Claimant’s reliance on section 24 of the Penal Code, in arguing for prosecution of other Board members not yet indicted, is misguided, as none of the charges relate to offences committed by an organisation. but by individual persons.

40. The State submits that the particulars of the charge herein do not allege any wrongdoing by the Bank, the Board or its members as directors. Rather, the State argues, they have identified the specific conduct of the Claimant and others in their executive and legal advisory roles.

41. The State further submits that the Claimant’s own language reveals uncertainty about whether the other Board members should be prosecuted, which undermines his claim of discriminatory treatment.

42. In conclusion, it is the State’s submission that the application herein lacks a cause of action, that the Claimant has not shown that any of his rights have been threatened or violated by reason of the purported selective prosecution and, consequently, that the application herein should be dismissed with costs.

43. The Court wishes to begin by observing that at the core of the present application is the question as to the extent to which courts in Malawi may, as it were, second -guess the decisions of the DPP as regards who to prosecute or not to prosecute in any given matter. Fortunately for the Court, this is not a novel question in our law.

44. But before proceeding much further on that path, the Court pauses to remind itself that this is an application for permission to apply for judicial review, and that it must, therefore, first expound the principles that should guide it in determining such an application.

45. The Court is mindful that permission to apply for judicial review is a procedure that is expressly provided for under Order 19 Rule 20(3), of the CPR, 2017 which states that:

“Subject to sub-rule [(4)], an application for judicial review shall be commenced ex -parte with the permission of the Court.”

46. Subrule (4) then proceeds to state that: “The Court may upon hearing an ex parte hearing direct an inter -partes hearing.”

47. The CPR, 2017 are silent on the principles governing the grant or refusal of permission to apply for judicial review. However, it is common knowledge that the notion of permission to apply for judicial review before proceeding with the substantive application for judicial review is not an innovation of the CPR, 2017. It was part and parcel of the erstwhile Rules of the Supreme Court, 1965 (the RSC), under Order 53 thereof, and appropriate principles were developed and settled under those rules which, unless specifically excepted by subsequent rules to the contrary, still apply with regard to permission to apply for judicial review under Order 19 Rule 20(3) of the CPR, 2017. Those principles were properly summarised by the Supreme Court of Appeal in the case of Chaponda & the President of Malawi vs Kajoloweka & Others , MSCA Civil Appeal Number 05 of 2017. The Supreme Court of Appeal stated in that case, that:

“We would like to agree with the court below on its understanding of the law when it stated that ‘leave should be granted, if on the material then available the court thinks, without going into the matter at depth, that there is an arguable case for

granting the relief claimed by the applicant’ [see R. v inland Revenue Commissioners. ex parte National Federation of Self Employed and Small Businesses Limited [1982] A.C 617, 64-l]. The test to be applied in deciding whether the judge is satisfied that there is a case fit for further investigation at a full inter partes hearing for a substantive judicial review is also discussed in R v Secretary of State for the Home Department, Ex parte Rukshanda Begum [1990] COD 109 CA. As we understand it, the key words in the above dicta are the words ‘an arguable case’ and ‘if the judge is satisfied.’ What do these words import and what level of scrutiny must the material be subjected to before the judge grants leave? Thus, in R.v Inland Revenue Commissioner, Ex parte National Federation of the Self Employed and Small Businesses (1982) A.C 617, it was instructively put that the right to refuse leave to move for judicial review is an important safeguard against courts being flooded and public bodies being harassed by irresponsible applicants for judicial review. Further, in the same judgment, it was stated by Lord Diplock that the requirement of leave may prevent administrative action from being paralysed by a pending, but possibly spurious, legal challenge [Ibid. 643]. It is easy to