High Court Judge Redson Kapindu has discharged former Reserve Bank Governor Dr Dalitso Kabambe and former Deputy Governor Henry Mathanga from an abuse of office charge where the two were being accused of instructing officials of the Reserve Bank of Malawi to misreport on Malawi’s Net International Reserves and Gross Reserve Liabilities to the International Monetary Fund IMF during the period 2018 -2019.
In his ruling, delivered on Friday, 19th April, 2024 at the High Court in Lilongwe, Kapindu discharged the charge on facts that the state failed to commence the trial on the charge of abuse of office against both defendants within twelve-month period as prescribed in the law since the matter is a misdemeanor which carries a maximum sentence of 3 years.
In their submissions, lawyers representing Kabambe and Mathanga observed that since their clients were arrested in 2021 and cautionary statements taken upon their arrest, counting a period of 12 months from those dates, the latest that the trial should have commenced was 7th March 2023.
The court agreeing with the defendants ruled that “the charge of abuse of office contrary to section 95 of the Penal Code, the two defendants herein accordingly stand “discharged” by the operation of the law, pursuant to section 302A (4) of the Criminal Procedure and Evidence Code, and this Court’s role is merely to formally acknowledge and declare this preordained fact and legal reality under the law. The Court therefore so declares the discharge.”
The court has also ruled in favour of an application by the defendant against the lead prosecutor hired by the state in the case, Kamdoni Nyasulu, from prosecuting the matter due to no-renewal of his practice license which according to the court is “mandatory” under section 30(4) of the Legal Education and Legal Practitioners Act, 2017 (LELPA) that a legal practitioner may only practice if he or she has a valid license to practice.
“The Court holds that since Counsel Nyasulu is a legal practitioner, and for as long as his name appears on the roll of legal practitioners, just like any other legal practitioner, whenever he appears to plead or argue cases before this Court, whether they be civil or criminal proceedings, then, unless he is appearing on his own behalf, the Court will require him to fulfil the requirements of a legal practitioner, and this includes fulfilling the mandatory requirement of having a valid licence to practice”, reads the ruling.
The court has however ruled to continue hearing the only remaining charge on the charge sheet of “Fraud other than false pretences under section 319A of the Criminal Procedure and Evidence Code” where the two are being accused of instructing officials at the Reserve Bank of Malawi to misreport on Malawi’s Net International Reserves and Gross Reserve Liabilities to the International Monetary Fund IMF, an action the state argue led to the Malawi Government suffering a detriment of the IMF cancelling the 2018 Extended Credit Facility (ECF) program, in which the state lost US$108 million.
In their preliminary submission, the defense argued that both Kabambe and Mathanga are falsely accused as the ECF was cancelled by the Malawi Government in September 2020 due to a change in policy of the new Government and not IMF as is being reflected as a detriment in this charge. The court indicated that it will consider these submissions at the ‘No Case to Answer’ stage.
