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 KAPINDU J, RULING 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 10th 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 understand that the aim of this requirement is therefore to ‘sieve out’ proceedings which, in the court’s view, are spurious, and remain with those which the court is satisfied are ‘arguable cases.’ The purpose for the requirement of leave is to eliminate at an early stage any applications which are either frivolous, vexatious or hopeless and to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained is designed to prevent the time of the court being wasted by busy bodies with misguided complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left.” 48. These are, therefore, the principles that this Court bears in mind in considering whether, based on the information laid before the Court, the Claimant has made a satisfactory case for this Court to permit him to proceed with an application for judicial review. 49. In proceeding on this enquiry, the Court will engage in an examination of foreign (comparative) case law, and rest with our domestic case law. In our system of stare decisis, the importance of paying careful attention to judicial precedent cannot be overemphasised. In the case of Chaponda & the President of Malawi vs Kajoloweka & Others (above), the Supreme Court of Appeal, citing with approval a statement by Dr. M. R. E. Machika, advised that “One can say very little against judges paying the greatest attention to earlier decisions of their colleagues in an effort to decide cases.” 50. In the English case of In re Ashton [1994] 1 A. C. 9, Lord Slynn of Hadley stated, at page 17, that: “absent dishonesty or mala fides or some other wholly exceptional circumstance, the High Court will as a matter of discretion, not entertain judicial review proceedings of a decision to prosecute. There are some dicta to this effect: Reg. v. Panel on Takeovers and Mergers, Ex parte Fayed [1992] B. C. C. 524, at p. 536; Reg. v. Chief Constable of Kent, Ex parte L [1993] 1 All E. R. 756, 770-771 and Elguzouli-Daf v. Commissioner of Police of the Metropolis [1995] Q. B. 335.” 51. In Reg. v. Chief Constable of Kent, Ex parte L [1993] 1 All E. R. 756, 770-771 referred to above, Watkins, LJ stated that: “Judicial review of a decision not to discontinue a prosecution is unlikely to be available. The danger of opening too wide the door of review of the discretion to continue a prosecution is manifest and such review, if it exists, must, therefore, be confined to very narrow limits.” 52. Further, in the case of R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326. Lord Steyn stated that: “My Lords, I would rule that absent dishonesty or mala fides or an exceptional circumstance, the decision of the DPP to consent to the prosecution of the Respondents is not amenable to judicial review. And I would further rule that the present case falls on the wrong side of that line.” 53. In the case of Raymond v Attorney General, [1982] 2 All ER 486, the English Court of Appeal, per Sir Sebag Shaw, stated at page 490, that: “Unless his decision is manifestly such that it could not be honestly and reasonably arrived at it cannot, in our opinion, be impugned. The safeguard against an unnecessary or gratuitous exercise of this power is that...that officer of the Crown is, in his turn, answerable to Parliament if it should appear that his or the director’s powers under the statute have in any case been abused.” 54. In Malawi, in the case of The State vs DPP, Ex-parte Gift Trapence & Timothy Pagonachi Mtambo, Constitutional Cause No. 1 of 2017 (Trapence & Mtambo case), the Court stated that: “While we agree that Courts have unlimited jurisdiction to review all constitutional decisions. When it comes to executive powers, the Courts will review those decisions only in rare and extreme circumstances…We are of the humble view that the decision of the DPP is not in excess of her constitutional powers. The Constitution gives her power to arrive at a decision not to prosecute and in such situations, to furnish reasons to the [Legal Affairs Committee] LAC of Parliament. The DPP complied with that Constitutional requirement. Again, the Constitution does not state that where the DPP is of the view that some human rights will be affected by her decision, then she has to furnish reasons to affected individuals or human rights activists. We are of the view that the LAC of Parliament is better placed to determine that fact in scrutinising her decision not to prosecute.” [Emphasis added] 55. The Court proceeded to make reference to Section l01 (2) of the Constitution which provides that: “In the exercise of the powers conferred on him or her by this Constitution or any other law, the Director of Public Prosecutions shall be subject only to the general and special directions of the Attorney General but shall otherwise act independent of the control of any other authority or person and in strict accordance with the law; Provided that the DPP or the Attorney General may be summoned by the Legal Affairs Committee of Parliament to appear before it to give account for the exercise of those powers.” 56. The Court then stated that: “The question to ask in the face of these two constitutional provisions is what is it that one should do when dissatisfied with the manner in which the DPP has carried out his or her constitutional powers or duties? The answer lies in the two constitutional provisions as I have hinted above. It is important to adhere to the spirit of the Constitution which regulates our steps or behaviour. The LAC is made responsible for overseeing the due exercise of constitutional duties vested in the DPP.” [Emphasis added] 57. The Court went further to explain that: “The Constitution has created a mechanism whereby the LAC is vested with constitutional oversight responsibilities over the decisions of the DPP in the way he or she exercises her constitutional powers under section 99 (2) of the Constitution. Once a mechanism has been established especially by the Constitution, it is for a purpose. A democratic constitutional order is guided by other democratic principles such as adherence to the rule of law which is very fundamental to good order so as to maintain peace and tranquillity and orderliness or sanity. As the oversight constitutional responsibility lies on the LAC, the DPP has a correlative duty to account to the LAC. So long as the DPP proves that he or she has accounted to the LAC, no more is required from him or her. This principle of separation of powers, is to be respected at all times as one of the pillars of our democracy. It does not matter that there is a public duty under Section 43 of the Constitution. The specific duties enshrined in Section 99 (2) are hardly subject to the requirements of Section 43 of the Constitution because they do not fall under the ambit of administrative actions. So how is the scheme of things expected to operate? The correct procedure is that when one is aggrieved with the decision of the DPP to take over and discontinue a case in which he or she has an interest, the first port of call should never be at Judicial Review mechanism but to refer the matter to the LAC which has oversight responsibilities over the actions of the DPP in terms of her constitutional powers. That is the legal position as provided for in the Constitution. I can understand why aggrieved parties will almost at all times prefer to rush to courts. It is because that is what we are used to since courts are there to resolve issues. Constitutional or executive powers of the DPP suspected to have been exercised improperly must always be referred to the [LAC] which has primary responsibility to look into the decisions of the DPP. Courts’ intervention should be the last thing to do.” [Emphasis added] 58. The general import of these passages is very clear. The Constitution has created accountability mechanisms in respect of the exercise of powers by the DPP. Specifically, the passages make it very clear that any person who is aggrieved by the decision of the DPP, in exercise of his or her Constitutional or executive powers, must be referred to the Legal Affairs Committee of Parliament which has primary responsibility to look into the decisions of the DPP. The passages make it patently clear that where the constitutional or executive powers of the DPP suspected to have been exercised improperly, they “must always” be referred to the Legal Affairs Committee of Parliament which has the “primary responsibility to look into the decisions of the DPP” and that intervention by the courts “should be the last thing to do.” 59. The Court went on to address a concern that had been raised by the Applicants in that case, which concern basically rested on the suspected lack of transparency by the Legal Affairs Committee of Parliament. The Court stated that: “On the Applicants’ contention that the reasons once furnished to the LAC are clothed in secrecy, we are of the view that the DPP is not to be held responsible for such state of affairs. Moreover, the Applicants did not adduce evidence in court showing that they attempted to get the reasons as furnished by the DPP from the LAC. Further, the Court will be slow in subjecting a decision to judicial review, of any authority under the Constitution where the Constitution already provides for a review mechanism, as in the present case. The Constitution provides review mechanism of the DPP’s decision not to prosecute [through] the LAC. We are of the humble view that courts are to respect the principle of separation of powers as enshrined in the Constitution.” 60. It is evident that in the Trapence & Mtambo case above, the High Court, sitting as a three-judge panel to determine a constitutional matter in terms of section 9(2) of the Courts Act, was clear and emphatic on its findings and directions. First, the Court decided that the exercise of the DPP’s executive prosecutorial powers may only be interfered with by the courts in extremely rare and exceptional circumstances. Secondly, the Court emphasised that it is a peremptory requirement that a person aggrieved by the decision of the DPP in exercise of his or her constitutional prosecutorial powers, must first explore and exhaust the parliamentary accountability mechanism for review that the Constitution established, before attempting to seek judicial redress. This Court finds no basis or necessity for seeking to reinvent the jurisprudential wheel by attempting to revisit such a position. When read together with the decision of the Supreme Court of Appeal in Chaponda & the President of Malawi vs Kajoloweka & Others (above), the Court takes the firm view that the law is, in this regard, settled. 61. In Chaponda & the President of Malawi vs Kajoloweka & Others, the SCA stated that: “For all intents and purposes, with regards to the issue of sustenance or vacation of leave to proceed with judicial review, the pivotal issue is whether or not the executive powers of the 2nd appellant (The State President), in the circumstances of the case at hand, are reviewable…In the discussion and analysis that follows, the Court will demonstrate that no arguable case was made out fit for judicial review. This finding and conclusion will be grounded on the fact that there was no viable ground for the judicial scrutiny of executive action disclosed by the respondents and also because largely, there was no arguable case for judicial review that was made out.” 62. The Supreme Court of Appeal went on to say that: “one would…have expected that the applicants (respondents), at leave stage, would have demonstrated why the issue of Ministerial appointment or suspension or the appointment of Commissioners of Inquiry would have qualified for review in light of numerous instructive authority precedent pointing the other way. Actually, the court should have asked itself the important question why it thought the matter would fit a billing for further inquiry at a full inter parte judicial review hearing in view of the plethora of authorities of which cases are fit for judicial review from comparable jurisdictions where the subject matter concerns exercise of Presidential Executive powers.” 63. Similarly, in the present case, one would have expected that the Claimant herein would have, at the permission stage, demonstrated why the issue of commencement of prosecution against certain individuals and not others by the DPP would have qualified for review in light of numerous instructive authorities that point the other way. 64. In Chaponda & the President of Malawi vs Kajoloweka & Others, the Supreme Court of Appeal excoriated the High Court for suspending a sitting Cabinet Minister because the Minister had been suspected of committing certain crimes. The Supreme Court of Appeal emphasised the need for courts to make their reasoning very clear even at the leave (permission) stage, when handing down their decisions. The Court stated that: “The [High] court did not delve deep into the question of identifying the questions fit for judicial review purportedly ‘out of fear of usurping the powers of the court which is to handle the substantive judicial review.’ This was wrong. At least on the challenge of the grant of leave, these issues ought to have been identified for the challenger to be convinced that the court was ‘satisfied’ of the existence of such issues.” 65. Thus, in a contested application for permission to apply for judicial review such as the present, the Court must delve deeper into identifying the existence or lack thereof, of questions fit for judicial review so that when the Court makes its decision to grant permission, or indeed to deny permission, the parties should be convinced that the Court has “satisfied” on the issues that it has addressed. 66. The upshot of all the foregoing is that the Claimant has not succeeded in satisfying this Court that he has an arguable case that is fit for further inquiry at a full inter partes judicial review hearing. 67. Whilst the Court is alive to the important constitutional issues raised in the application, particularly the right to equality before the law, the attendant principle of non- discrimination, and the need for accountability in the exercise of public powers, the present matter concerns the exercise of prosecutorial discretion. Under both comparative and domestic jurisprudence, as explored above, the exercise of prosecutorial discretion is reviewable only in the most exceptional of circumstances. 68. As seen above, the legal issues which the Claimant sought for this Court to determine were already previously referred to a three Judge High Court panel in Ex-parte Trapence & Mtambo, to determine on their constitutionality, incidentally upon a referral of the matter by this very Court. The Court in Ex-parte Trapence & Mtambo was very clear in its decision. The Court held that judicial review of the prosecutorial decisions of the DPP should be sparingly granted, and only in the most extreme and exceptional of cases. The Court further held that where any person is aggrieved by the manner in which the DPP has exercised his or her powers, such an issue “must always be referred” to the Legal Affairs Committee of Parliament, rather than to the courts. The Court went further to hold that if at all such a matter is to come to the courts, it must be demonstrated that such a matter is being brought as a measure of last resort after the other avenues have been exhausted. 69. The Court wishes to point out that under section 99(2)(a) of the Constitution, the DPP has very wide constitutional discretion when it comes to prosecutions. According to that section, the DPP may “institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person” where “he or she considers it desirable so to do.” The words “he or she considers it desirable so to do” were meant to confer a wide margin of discretion on the DPP when making prosecutorial decisions. There are, in this regard, various factors that the DPP may take into account in arriving at his or her prosecutorial decisions, for instance, deciding on who should be a witness and who should be an accused person in any particular case. These are purely prosecutorial decisions that are, as a general rule, left to the wide discretion of the DPP. Such decisions would be arrived at, in many cases after considering a number of issues, which may include economic, social, political or cultural considerations, and not merely the law. Thus courts, as the legal principles herein already suggest, should be extremely slow to interfere with such prosecutorial decisions unless it be shown that there is colourable evidence of dishonesty, mala fides, or some wholly exceptional circumstance that displaces the presumption of legality and good faith which ordinarily attaches to the DPP’s decisions. 70. In the present case, on examination of the facts, no such exceptional circumstance has been established. The only reason given by the Claimant is that in the instant case, in charges related to a decision that the Board of the RBM made to donate MK6.2 billion to the Government to fight the Covid-19 pandemic, only some individuals who were part of the Board have been charged whilst others have not been so charged. Nothing more has been said about, for instance, whether some of the persons alleged to be excluded have not been or would not be lined up as witnesses or not, or indeed any other pointers that the said decision is colourably in bad faith. 71. In addition, and to emphasise a point already made, the authorities above are clear that the DPP, as a constitutional office, has been constitutionally mandated to act independently in instituting or undertaking prosecution, or indeed in taking any other decisions relating to prosecutions, and that he or she is accountable to the Legal Affairs Committee of Parliament in the exercise of his or her powers. 72. As clearly stated in the Trapence case, it is understandable that aggrieved parties will almost always prefer to rush to the courts because that is what people are used to, since courts are there to resolve issues. However, constitutional or executive powers of the DPP, which are suspected to have been exercised improperly, “must always” be referred to the Legal Affairs Committee of Parliament which has the primary responsibility to look into the decisions of the DPP, and intervention by the Courts should be the last thing to do. 73. The foregoing discussion shows that the fundamental principles that must undergird, and which indeed have undergirded the Court’s consideration of and decision in the instant case, have already been addressed by these courts before, albeit under different specific factual circumstances. The different specific factual circumstances notwithstanding, the underlying fundamental principles still point the Court to the same conclusion, namely that the application herein must fail. 74. The application herein must fail, first, because it is premature. The jurisprudence is clear that the Constitution has placed the primary accountability mechanism in respect of the making of prosecutorial decisions by the DPP in the Legislature, specifically within the Legal Affairs Committee of Parliament, rather than with the courts. 75. Secondly, the application must fail because the jurisprudence in this country has clearly established that whilst court action challenging the exercise by the DPP of his or her constitutional prosecutorial powers may be resorted to in certain circumstances, which instances include the decisions on whom to prosecute, whom not to prosecute or whom not to continue to prosecute, and whether to take over prosecution of a particular criminal matter or not, such court action should only be resorted to in extreme cases – in the most exceptional of circumstances – and as a last resort. 76. The Court opines that there are sound reasons for the courts adopting these positions. 77. Firstly, court action in respect of the exercise of such powers or discretion should only come as a last resort because the Constitution itself has already prescribed a primary mechanism for keeping the office of the DPP accountable for the exercise of the DPP’s constitutional powers, and such mechanism primarily lies in Parliament rather than in the courts. 78. Secondly, court action should be resorted to only in the most exceptional of circumstances because the exercise of prosecutorial discretion by the DPP is a species of executive action rather than mere administrative action, and as a general rule, in respect of the doctrine of separation of powers, courts must as much as possible, keep away from the DPP’s executive lane. 79. Further, the Court finds it wholly unnecessary in the instant case, to take the extant criminal proceedings through a civil procedure detour in the form of separate judicial review proceedings, when the criminal process itself provides a straightforward and non-meandering path, complete with ample opportunities for the bringing of any procedural and substantive challenges in respect of any harm, injury or the threat thereof, that the Claimant may have before the Judge. The matter was already committed to the High Court for trial and the Claimant is at liberty to bring any such issues of concern before the trial Judge. In the case of Ledua v State [2008] FJSC 31; CAV0004.2007, the Supreme Court of Fiji stated, at para. 42, that: “It will generally be an abuse of process deserving summary dismissal to launch a free- standing application in the High Court’s civil jurisdiction in relation to an application for an adjournment and/or stay that could and therefore should be made as part of the pre-trial processes of a criminal prosecution. These principles apply to criminal proceedings in any court.” 80. This, in the Court’s view, is an apt statement of a position that equally obtains in Malawi. The issues raised in the present case could competently have been raised in the criminal court rather than bringing the challenge as a separate, free-standing application under civil law. 81. Consequently, the Court finds the application for permission to apply for judicial review herein to be misconceived. It has failed to meet the legal threshold required under Order 19 Rule 20 of the CPR, 2017. This Court is not satisfied that the Claimant has made out a case fit for further investigation and consideration at a full judicial review hearing. Accordingly, the application for permission to apply for judicial review is hereby refused. 82. In the light of the foregoing, the application for interim relief, including the prayer for a stay of the criminal proceedings herein, also automatically falls away. 83. All in all, the application herein is dismissed in its entirety. 84. Costs for these proceedings shall be borne by the Claimant. 85. It is so ordered. Delivered in Chambers at Lilongwe this 28th Day of April, R. E. KAPINDU, PhD JUDGE 34