Prophet Shepherd Bushiri and his wife Mary will continue enjoying their freedom outside police custody until December 14 when High Court judge Fiona Mwale will determine whether they should be re-arrested or not.
The judge was supposed to preside over a judicial review on a ruling the Lilongwe Magistrate’s Court made on November 19 to free the Bushiris on account that their arrest, after they had jumped bail in South Africa.
She was to determine whether the lower court erred by freeing the couple or whether it was justifiable that they be released unconditionally.
But the defence counsel served the State with an application challenging that the higher court does not have the jurisdiction to preside over civil matters, a development that prompted Mwale to set December 14 for hearing arguments from both sides on the issue of criminal review.
In her ruling yesterday, Mwale, who presided over the session through the Internet portal of Zoom, argued that the higher court has jurisdiction to supervise the lower court, be it on criminal or civil cases.
She cited the Criminal Procedure and Evidence Court (CP&EC) as well as the Courts Act as the basis on which the higher court can supervise the lower court.
However, the judge faul ted the defence team for serving State lawyers with documents only 24 hours before the commencement of hearing, describing the move as an ambush.
Stated Mwale in her ruling: “Unfortunately, the CP&EC does not provide procedural guidelines for the filing of a preliminary objection. Had this been a civil matter, the High Court Civil Procedure Rules under the Court’s Act would have been instructive, and we would have been clear on how many days’ clear notice the State should have had of this preliminary objection so as to enable them to respond.
“The purpose of setting a time limit is to enable the other party to properly respond to the issues and not be ambushed by them. It is unfair on the State to have been served an objection comprising an entire lever arch file in less than 24 hours. Not that the amount of documentation filed in support of the objection is what makes it unfair; the fact that the State were served with a preliminary objection without being given sufficient time to respond is what is unfair…”
After presenting her arguments, the judge set December 14 for concluding hearing of the application, which the defence counsel filed seeking the court to conduct a review judgement made by principal magistrate Viva Nyimba. to conduct a review on the
In an interview, Bushiris lawyer Wapona Kita said the objection was made against the application that the Enlightened Christian Gathering (ECG) leader and his wife should be re-arrested and that the judge does not have the jurisdiction to make a determination on civil matters passed in a lower court.
He said: “There is a preliminary objection we made and the court says it must deal with that first. So, both sides have been asked to submit arguments within seven days before hearing on December 14.
“The argument we are making is that there is an application for a criminal review, when the case is a civil matter. The judge cannot preside over a civil review…”
State lawyer Steven Kayuni also acknowledged in an interview that the determination will be made on December 14 and that his team has been served with documents on preliminary issues which the defence counsel raised.
He said the primary concern is that the defence served the documents late.
The Bushiris arrived in Malawi on November 11 having mysteriously fled South Africa following the ECG leader’s claims that their lives were in danger and that they feared they could not be given a fair trial, partly because some of their prosecutors had tried to extort money from them and were not being prosecuted over the extortion charges he had filed against them.
The couple turned themselves in at police headquarters in Lilongwe on November 18, hours after the law-enforcers embarked on a manhunt for them following a South Africa-generated International Police (Interpol) warrant of arrest.
However, Nyimba freed the Bushiris on the basis that their arrest was not authorised by the Minister of Homeland Security and that they were illegally arrested because there was no Malawian court-generated warrant of arrest against them.
The ruling prompted the State counsel to file an application for the Bushiris to be re-arrested for committing a criminal offence.