Former president Peter Mutharika and former top civil servant Lloyd Muhara on Tuesday suffered a fresh blow after the High Court dismissed their application to stop implementation of an order to pay K69.5 million in legal fees.
In a related development, the Lilongwe Chief Resident Magistrate’s Court ruled in favour of the Anti-Corruption Bureau (ACB) to renew a freeze order on the bank accounts of Mutharika and his associates.
Mutharika and Muhara, who was chief secretary to the government (title now reverted to Secretary to the President and Cabinet) during the Mutharika administration, were on March 12 2021 ordered to pay K69.5 million in legal fees to lawyers representing Malawi Law Society, Human Rights Defenders Coalition and Association of Magistrates in Malawi.
The three institutions sought a judicial review on the decision by Mutharika through Muhara to send Chief Justice Andrew Nyirenda and Justice of Appeal Edward Twea on leave pending retirement ahead of the court-sanctioned fresh presidential election on June 23 2020. They argued the decision threatened judicial independence, an argument the court upheld.
In his ruling dated March 22 2021 on the application by Mutharika and Muhara, High Court Judge Kenyatta Nyirenda said there was no merit in the application to put aside the execution of order for the duo to pay costs.
To add salt to injury, the judge further ordered Mutharika and Muhara to pay costs for the application to stay execution of the order for costs.
Said Nyirenda: “For the foregoing reasons, I am of the considered view that this application is devoid of merit. In the result, it has to be dismissed with costs to the applicants. It is so ordered.”
The judge also observed that it is common practice for a party seeking leave to appeal to apply at the same time for a stay, but observed that the respondents (Mutharika and Muhara) did not do this and that there was no explanation for their departure from such common practice.
Said Nyirenda: “In view of the foregoing, it is my finding and holding that the respondents are guilty of inexcusable and inordinate delay.
Let me hasten to add that there are other equally compelling reasons why this application has to fail. It is not necessary, in my view, that I discuss all the other reasons…”
It was a bad week in court for Mutharika as on Tuesday, Lilongwe chief resident magistrate Patrick Chirwa renewed orders restricting access to bank accounts for Mutharika, his wife Gertrude Mutharika, his bodyguard Norman Chisale and former Malawi Revenue Authority (MRA) deputy commissioner-general Roza Mbilizi.
The ACB on March 4 2021 applied for the renewal of the restrictions on the accounts arguing that their continued freeze will help protect money suspected to have been proceeds of crime.
The bureau said it needed the restriction notice to conclude investigations which were at an advanced stage requiring not more than 60 days.
But lawyers representing Mutharika argued that there was need to allow the former president have access to his accounts. They said the State did not provide sufficient grounds for the renewal, noting that Mutharika had been deprived access to his accounts for seven months.
Delivering his judgement dated March 23, Chirwa said he was mindful of the purpose the graft-busting body was seeking renewal of the restriction notice as indicated in the affidavits filed.
The magistrate said: “The desire of the State in such circumstances is to preserve the property in the account. The purpose for obtaining renewal, therefore, remains valid.
“For the foregoing reasons, I am of the view that the applicant [the ACB] has managed to satisfy the court of the need for further renewal of the restriction notice. I, therefore, grant the same as prayed. It is ordered.”
In all, there are eight accounts frozen, including one jointly held by the Mutharikas, one held by Mutharika, two each for Mbilizi and Chisale and another one under the name State Residences Presidency.
Four of the frozen accounts are held at Standard Bank, one at National Bank of Malawi, one at NBS Bank and two at First Capital Bank Limited.
In an interview on Wednesday, MLS president Patrick Mpaka, who represented MLS in the case, said he was not surprised that the court threw out the application to stay execution of order for costs.
He said by the time the application was being made, assessment of costs had not been done; hence, there was no figure to be disputed.
On how they intend to access money from Mutharika following renewal of restriction notice on his bank accounts, Mpaka said there are ways to go about it, including engagement of sheriffs.
He said: “We will see how to go about it. Of course, there is still time for the 14 days to expire.”
Mutharika’s lawyer Mwayi Banda said for the time being Mutharika’s accounts cannot be accessed.
Muhara’s lawyer Charles Mhango said he could not comment as he was yet to see the ruling.