𝗧𝗵𝗲 𝗦𝘁𝗮𝘁𝗲 (𝗼𝗻 𝘁𝗵𝗲 𝗮𝗽𝗽𝗹𝗶𝗰𝗮𝘁𝗶𝗼𝗻 𝗼𝗳 𝗗𝗿 𝗠𝗶𝗰𝗵𝗮𝗲𝗹 𝗕. 𝗨𝘀𝗶) 𝘃 𝗧𝗵𝗲 𝗔𝗰𝘁𝗶𝗻𝗴 𝗗𝗶𝗿𝗲𝗰𝘁𝗼𝗿 𝗼𝗳 𝘁𝗵𝗲 𝗔𝗻𝘁𝗶-𝗖𝗼𝗿𝗿𝘂𝗽𝘁𝗶𝗼𝗻 𝗕𝘂𝗿𝗲𝗮𝘂

High Court of Malawi, Financial Crimes Division, Judicial Review Cause No. 5 of 2025, before Hon. Justice Redson Kapindu, PhD

Lilongwe, 31st August 2025

Facts

The claimant, the Right Honourable Dr Michael B. Usi, Vice President of the Republic of Malawi and presidential candidate in the forthcoming general elections, sought permission to apply for judicial review of a notice issued by the Acting Director of the Anti-Corruption Bureau (ACB). The notice, dated 29 August 2025, required him to appear before the Bureau to answer questions relating to allegations of corruption by senior public officers which he had made in campaign speeches, and to produce relevant documents within 24 hours. The notice included a warning that non-compliance with its demands was an offence under section 49A of the Corrupt Practices Act.

The claimant contended that the Acting Director lacked authority, his acting tenure having expired under section 6B(7) of the Corrupt Practices Act; that the notice was unreasonable in demanding the production of documents within 24 hours; and that it infringed his constitutional right to freedom of expression under section 35 of the Constitution, read with section 53 of the Presidential, Parliamentary and Local Government Elections Act )(Elections Act), which guarantees candidates “complete and unhindered freedom of expression” during the official campaign period. He sought permission to apply for judicial review and an interim stay of the notice.

Held - granting permission to apply for judicial review in part and granting an interim stay of the notice during the campaign period:

          𝟭. On a proper construction of the Corrupt Practices Act, and particularly sections 6B(7), 6B(8) and 8(1), the Deputy Director of the Bureau is empowered to act as Director during a vacancy or absence in the substantive office, without time limitation. The Acting Director therefore had authority to issue the notice. There was accordingly no arguable case on this ground warranting further investigation at a full judicial review hearing (paras 25–28).

          𝟮. The requirement that the claimant produce documents within 24 hours, at the risk of committing an offence under section 49A, was unreasonable in the circumstances. The claimant is a sitting Vice President of the Republic and a presidential candidate engaged in a national campaign. As such, compliance within so short a period would be impracticable and unfair. That aspect of the notice was therefore stayed during the official campaign period, and any subsequent requirement would need to allow reasonable notice (paras 29–31, 41(b)).

          𝟯. There was a serious issue to be tried as to whether the ACB’s invocation of its investigative powers under sections 10 and 11 of the Corrupt Practices Act, based on campaign statements made during the official campaign period, undermined the right to “complete and unhindered” freedom of expression under section 35 of the Constitution and section 53 of the Elections Act. That issue warranted a full hearing of judicial review, particularly given the competing considerations of safeguarding electoral freedoms and ensuring accountability in combating corruption (paras 32–39, 41(c)).

          𝟰. Pending the determination of the substantive proceedings, the ACB and any other law enforcement agency were restrained from compelling the claimant to produce documents or answer questions pursuant to the notice during the official campaign period, and from threatening criminal liability for non-compliance under section 49A. The stay order was expressly limited to the duration of the official campaign period, but the threat of prosecution under section 49A of the Corrupt Practices Act was stayed until final determination of the judicial review (paras 40–41(d)–(e)).

          𝟱. The application for permission to apply for judicial review was therefore allowed in part.

          𝟲. An interim stay of the Notice, limited to the duration of the official campaign period, was granted.

          𝟳. The Court made no order as to costs.

Access the full ruling: https://www.judiciary.mw/node/778