The Malawi Supreme Court of Appeal has dismissed an application by former president Peter Mutharika’s security aide Norman Chisale for an order to prevent his further arrests, saying granting such open-ended relief would frustrate law enforcement.
In his judgement delivered yesterday, Justice of Appeal Lovemore Chikopa, sitting as a single Malawi Supreme Court of Appeal judge, said the relief sought by Chisale through his lawyer Chancy Gondwe was “too general/wide” and that “in point of fact it is impossible” to grant the same.
The judge said: “Granting the injunction sought by the applicant [Chisale] would prevent law enforcement from even engaging in such consideration. They [police] would effectively never arrest/prosecute even in the face of good enough reason.
“We agree that the citizenry should be protected from unlawful arrests. That arresting an accused three times within three weeks might not sound legitimate. [But] it is our further view that our laws have an inbuilt protective mechanism against instances, potential or actual of the abuse of the powers of arrest.
“It [the law] specifically lays out how and when an arrest can/should be made. In either case, we think it is better, unless the situation leaves us with no other choice, to deal with alleged abuses after the arrest than to order the police not to arrest at all.”
Chikopa said the police should be allowed to exercise its lawful discretion on who to arrest and for what as long as they abide by the law.
He said: “On the order to release the applicant pending judicial review, there is, again as we have shown above, no dispute between the parties. The respondent [Police IG] having realised the error of his ways and the way to remedy the situation need only conduct himself in the manner of a law-abiding law enforcement officer. He does not need a court to do that. It is always his duty.”
Chisale, who until the court-ordered June 23 Fresh Presidential Election was State House head of security, was first arrested on July 14 2020. He was rearrested on July 17 soon after being granted court bail on another offence, but was again arrested for yet another offence on July 28.
On July 31 2020, Chisale asked the High Court in Lilongwe for a judicial review of his “multiple, endless and consecutive arrests” by the police. He argued that the police conduct was against Section 42(2)(f) of the Constitution and Section 20(c) of the Criminal Procedure and Evidence Code; hence, sought an order to quash the said arrest and declarations that the decision to arrest was illegal, unconstitutional, unjustified and unreasonable.
Further, he asked for an order staying the subsequent arrests and his prosecution, an injunction restraining the police from further interfering with his right to freedom and security of his person.
The High Court granted him leave for judicial review, but refused to give him his wish on the reliefs sought.
In his reaction, lawyer Gondwe insisted that his client continues to be in an unlawful detention.
On his part, Director of Public Prosecutions spokesperson Pirirani Masanjala, said the IG was in an appropriate position to respond on the matter.