R v Matemba (Criminal Cause 5 of 2023) [2023] MWHC 31 (11 July 2023)

i IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY FINANCIAL CRIMES DIVISION CRIMINAL CAUSE NO. 05 OF 2023

BETWEEN

‘THE REPUBLIC

-AND- REYNECK MATEMBA

Coram

HON. JUSTICE VIOLET PALIKENA-CHIPAO ‘Ms. Lapozo/Mr. Sambani, Counsel for the State Accused Person present but unrepresented ‘Ms. Mkochi, Coutt Clerk Chipao, J

Ruling

1, Reyneck Matemba, was taken before the Chief Resident Magistrate Court on S* August 2022 upon his arrest to be told of reasons for his arrestin compliance with section 422) of the Constitution. The State indicated that they could not proceed with plea before obtaining consent to prosecute from the Director of Public Prosecutions in line with section 42 of the Corrupt Practices Act. At that time the charge levelled against the accused person was that of corrupt use of official powers contrary to section 25(1) of the Corrupt Practices Act (the CPA) as read together with section 34 of the CPA.

2. ‘The Accused Person was released on bail and the matter was adjoumed pending the obtaining of consent from the Director of Public Prosecutions (DP) by the Anti- Corruption Bureau. Later the matter was committed to this court for trial. Following the receipt of the file by the High Court, a date was fixed for plea and directions. A charge sheet was filed containing three counts namely corrupt use of official powers contrary to section 25(1) of the CPA as read together with section 34 of the CPA, misuse of public office contrary to section 25B (1) of the CPA as read together with section 34 of the CPA and failure to declare interest by a public officer contrary to section 2SD(1)(a) of the CPA as read together with section 34 of the CPA.

3. When the Court convened for plea and directions, the Accused person raised a preliminary issue asking whether the State had obtained consent from the DPP to prosecute him. The ‘State's response was that consent was not necessary in view of the repeal of section 42 of the CPA. Since the issue was raised orally and without prior notice, the Court directed that the Accused Person should formally raise the issue with supporting arguments to enable the State respond. The issue raised by the Accused Person is whether the ACB needs to obtain consent of the DPP before instituting the prosecution of the Accused Person.

4, At the time the Accused Person was arrested and brought before the court, it was a requirement under section 42 of the CPA for the ACB to obtain consent to prosecute from the DPP before instituting proceedings. This is the reason why the Chief Resident Magistrate's Court (CRM’s) court could not proceed with plea taking on the S® of August when the Accused Person appeared before the court. Section 42 of the CPA provided as follows;

() No prosecution for an offence under Part IV shall be instituted except by or with the written consent of the Director of Public Prosecutions.

(2) Where under subsection (1) the Director of Public Prosecutions withholds consent to any prosecution under this Act, he shall—

‘@. provide to the Director reasons in writing, devoid of any consideration ‘other than those of fact and the law, for the withholding of consent; and

1b. imaddition to providing reasons to the Director, inform the Legal Affairs Committee of Parliament of his decision within thirty days of the

Decision

(3) The Director of Public Prosecutions shall give consent under subsection (1), or ‘reasons in writing under subsection (2) (a), as case may be, within thirty days,

Sailing which the Director shall be entitled to proceed as if consent fo prosecute +had been given under subsection (1).

(4 Notwithstanding the provisions of subsection (1),a person may be arrested and charged with an offence under Part IV or a warrant for his arrest may be issued ‘and executed, and any such person may be remanded in custody or on bail, ‘notwithstanding that the written consent of the Director of Public Prosecutions to the institution of a prosecution for the offence with which he is charged has not been obtained, but no such person shall continue to be remanded in custody or on bail for a period longer than fourteen days on such charge unless in the ‘meantime the written consent of the Director of Public Prosecutions aforesaid has been obtained.

(5) When a person is brought before a court before the written consent of the Director of Public Prosecutions to the institution of a prosecution against him is obtained, the charge shall be explained to the person accused but he shall not be called upon to plead

(6) No proceedings for an offence under Part IV shall be commenced after the ‘expiry of twelve months from the date the written consent of the Director of Public Prosecutions is given.

5. Section 42 of the CPA was however repealed by the Corrupt Practices (Amendment) Act, 2022. The Corrupt Practices (Amendment) Act, 2022 was passed in Parliament on 28” July 2022 and came into effect on the 13" of September 2022.

6. It is argued by the Accused Person that according to section 74 of the Constitution and section 9(1) of the General Interpretation Act that the Corrupt Practices (Amendment) Act, 2022 which repealed section 42 of the CPA and therefore removed the requirement of obtaining consent from the DPP was not yet operational at the time he was arrested and brought to court.

7. The Accused Person further argues that according to section 14 of the General Interpretation Act, the repeal of section 42 notwithstanding, the position of the law is that unless the contrary intention appeared, the ACB was still legally bound to obtain written, ‘consent from the DPP before instituting the prosecution of the Accused Person. He further argued that there being no contrary intention in the Corrupt Practices (Amendment) Act, 2022, the enactment of the Corrupt Practices (Amendment) Act, 2022 did not affect the previous operation of that section.

8, Section 74 of the Constitution and section 9 of the General Interpretation Act makes provision in relation as to when laws come into force. Section 74 of the Constitution provides as follows;

‘No law made by Parliament shall come into force until it has been published in the Gazette, but Parliament may prescribe that a law shall not come into force until some later date after is publication in the Gazette

9. Section 9 of the General Interpretation Act is also instructive on the issue. The section provides as follows;

(1) Subject to subsections (2) and (3), an Act assented to by the President shall come into operation immediately on the expiration of the day next preceding the day on which itis published in the Gazette.

(2) Where itis enacted in the Act, or in any other written law, that such Act or any provision thereof shall come or be deemed to have come into operation on some specified day, the Act or, as the case may be, such provision shall come or be deemed to have come into operation immediately on the expiration of the day next preceding such day.

(3) Where itis enacted in an Act, that such Act shall come into operation on such date as may be appointed by any person, such person may, by notice or order, bring the Act into operation on a day specified in the notice or order, or may by the same or by different notices or orders bring different provisions of the Act into operation on different dates.

10, My reading of the two sections is that a law comes into force either on the expiration of the day next preceding the day on which itis published in the Gazette or on a day specified in the Act or on a date specified by notice or order where an Act specifies that it shall come into operation on such date as may be appointed by any person.

11. According to the Accused Person, there is no provision in the Corrupt Practices (Amendment Act) providing for a date as to when the Act shall come into operation and that as such, the Act came into operation on 13® September 2023 upon being published in the Gazette. Its therefore the argument of the Accused Person that there is no retrospective

application of the law and that as such in his case, the ACB is still obliged to obtain consent of the DPP to prosecute him.

12. The State has argued on the authority of the case of Stanbic Bank Limited v. Mwalwanda [2008] MLR 361 that the rule against retrospective application of a statute is not a rigid rule, The State has also relied on cases of Blyth v. Blyth (1966) All ER; Rodway v. R [1990] 169 CLR 515 and Republic v. Kamwangala (Application for Jury Trial) Criminal Case No. 43 of 2013. It has been argued by the State that the requirement in the repealed section 42 was a procedural requirement and not a substantive requirement and that alterations in the form of procedure are always retrospective unless there is good reason why that cannot be the case.

13, The State has further argued on the authority of section 83 of the CP & EC, section 42(1) of the CPA and cases R v. Goldan Lambert [2009] EWCA Crim 700; DPP v. Bull (1994) 4 All ER 411 and R vy, Welsh (Snr) and 17 Others (2015] EWCA 1516 that proceedings are deemed to have been instituted when the Accused comes to court to answer the charge. It was argued by the State that the Accused Person was merely presented before the court for purposes of conforming with section 42 of the Constitution and was never charged and did not take plea. It was argued by the State that the State only intended to institute the proceedings on 28% June 2023 when it presented its chargesheet to the court, when the requirement of the consent had already fallen off. It was thus submitted that the applicable Jaw is the Corrupt Practices (Amendment) Act which does not require the obtaining of ‘consent,

14. In reply, the Accused person relying on section 42(2)(b) of the Constitution and section 83 of the CP & EC argued that the State instituted prosecution of the Accused Person under section 83(1}(¢) of the CP & EC. The Accused person argued that the State did not bring the accused person to court to be informed of reasons for his further detention but to be charged.

15, Relevant to the issue of commencement of proceedings is section 42(1), (4) and (5) of the CPA which provides as follows;

() No prosecution for an offence under Part IV shall be instituted except by or with the written consent of the Director of Public Prosecutions.

(4) Notwithstanding the provisions of subsection (1), a person may be arrested and ‘charged with an offence under Part IV or a warrant for his arrest may be issued ‘and executed, and any such person may be remanded in custody or on bail, notwithstanding that the written consent of the Director of Public Prosecutions 10 the institution of a prosecution for the offence with which he is charged has not been obtained, but no such person shall continue to be remanded in custody ‘or on bail for a period longer than fourteen days on such charge unless in the ‘meantime the written consent of the Director of Public Prosecutions aforesaid ‘has been obtained.

(8) When a person is brought before a court before the written consent of the Director of Public Prosecutions to the institution of a prosecution against him is obtained, the charge shall be explained to the person accused but he shall not be called upon to plead.

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