Former president Peter Mutharika’s personal bodyguard Norman Chisale and four others have filed a notice in the High Court of Malawi expressing their intentions to challenge preservation orders in relation to K1.7 billion worth of assets.
Their application follows a February 25 2021 High Court order granted to the State by way of preservation orders targeting 86 motor vehicles and 21 real estate properties that include residential houses and commercial buildings believed to be owned by Chisale and his associates.
The court also granted a freeze order on Chisale’s two bank accounts following the State’s application jointly filed by the Anti-Corruption Bureau (ACB), the Director of Public Prosecutions (DPP) through Assets Forfeiture Unit, Financial Intelligence Unit (FIA) and Malawi Police Service Fiscal and Fraud Department.
Through their lawyer Chancy Gondwe, Chisale and four others—Deborah ZimathaChisale, EsnartGuga, FlonyGuga and Christina Mvula—are asking the court to dismiss or discharge the preservation orders High Court Judge Mike Tembo granted to the State.
They argue that in the preliminary issues, the State is not the right party or competent authority to the proceedings because the proceedings are civil in terms of Section 54 (1) of the Financial Crimes Act of 2017.
Chisale and his co-respondents also argue that the matters being raised in the notice relate to the application and interpretation of the Constitution; hence, the court should refer the same to the Chief Justice for certification as a constitutional matter.
Reads in part the filed notice: “The property preservation orders granted by this court without notice [ex-parte] in terms of Section 65  of the Financial Crimes Act are tantamount to an unconstitutional infringement of the right to fair hearing, the presumption of innocence [Section 42 (2)(f) (iii) of the Constitution], the right to property [Section 28 of the Constitution] and the right to dignity [Section 19 of the Constitution].
“The evidence in the form of sworn statements adduced before this court by the claimant did not meet the threshold test to be applied at the preservation stage under Section 65 (2) of the Financial Crimes Act 2017 to make the court reasonably believe that the property concerned constitutes proceeds of an offence.”
Chisale and the third, fourth, fifth and seventh respondents, who are being represented by Gondwe, further argued that Section 65 (1) of the Financial Crimes Act, which permits the granting of ex-parte preservation orders, is contrary to the right to equality and to equal treatment before the law provided under Section 20 (1) of the Constitution.
They submit: “The retrospective application of the Financial Crimes Act, as provided for in Section 141 (2) of the Financial Crimes Act 2017, is not consistent with the principle of legality and the rule of law which lies at the heart of the constitutional dispensation of 1994.
“Ex-parte orders under Section 65 (2) of the Financial Crimes Act are clearly a draconian intrusion into the rights of the people who are affected by such orders as they authorise serious erosion of the rights contained in the Bill of Rights under Chapter 4 of the Constitution which is the cornerstone of Malawi’s constitutional democracy as the said orders do not afford the affected parties an opportunity to challenge the same…and, as such, such orders are unconstitutional.”
Further, Chisale and team also argued that the claimant, the State, is not a legal person at law capable of instituting civil proceedings while the DPP, who filed the application, lacks authority in civil proceedings as his constitutional mandate is in criminal matters.
“The conduct of the Director of Public Prosecutions in commencing these civil proceedings in the Civil Division of the High Court is not consistent with the powers and duties of the DPP as enshrined under Section 99 (2) (a) of the Constitution of Republic of Malawi,” they argued.
They also argued that the DPP’s actions are unconstitutional, stating that they would seek, during the hearing, to have the preservation orders dismissed or varied, and the claimant be made to pay costs for the proceedings.
The second respondent, ChimwemwePaulosi of Namauya Investments and the sixth respondent Janet FatchKamanga, are yet to express their position on the matter and have not filed to the court yet, according to our inquiries.
Earlier after the State was granted the orders, Gondwe indicated that the list of properties was misleading on the basis that Chisale, who is answering other criminal charges related to fraud and money laundering, did not own all the listed property.
In an interview with the local media last week, Chisale is on record as having said that most of the vehicles on the list of 86 affected by the preservation order were imported by Mutharika and were distributed to chiefs, among other beneficiaries.
The High Court granted government the order to seize assets from Chisale estimated at K1.7 billion.
Of the 86 motor vehicles listed, the State attached 63 cars to the name Norman P. Chisale as importer and left blank spaces on 23 other vehicles.
The freeze order also affected two bank accounts, one held at National Bank of Malawi, Capital City Service Centre with a cash balance of over K30 million and the other at First Capital Bank with cash balance of over K87 million.
Some of the 21 properties seized include residential houses in suburbs and commercial buildings in Blantyre, Lilongwe, Dedza and Ntcheu as well as Zimatha Executive Lodge in Mangochi.
In his order, Tembo ruled that the claimant shall cause the preservation order to be published in the Government Gazette or two newspapers of the widest circulation within 21 days.