Court rebuffs Chisale on preservation order

The High Court of Malawi sitting as a Constitutional Court has dismissed with cost an application by former president Peter Mutharika’s personal bodyguard Norman Chisale challenging a preservation order.

The Director of Public Prosecutions (DPP) Steve Kayuni through State law enforcement agencies successfully made an application before High Court Judge Mike Tembo to seize Chisale’s property worth K5 billion.

Other agencies are Assets Forfeiture Unit, the Financial Intelligence Authority (FIA), Anti-Corruption Bureau (ACB), and Malawi Police Service (MPS) Fiscal and Fraud Department.

However, through his lawyers led by Chauncy Gondwe, Chisale wanted the Constitutional Court to determine whether the preservation order is not a violation of his rights and those of other accused in the case to privacy and to own property.

The others are Deborah Zimatha Chisale, Esnart Guga, Floney Guga, Janet Fatch Kamanga and Christina Mvula.

In the application, Chisale also wanted the Constitutional Court to determine whether Kayuni was within his mandate to commence civil proceedings by obtaining the preservation order when Section 99 of the Constitution stipulates that DPP’s mandate is on criminal matters only.

But delivering the ruling yesterday, the three-judge panel, comprising Justices Dingiswayo Madise, Kenani Manda and Anneline Kanthambi observed that preservation orders under the Financial Crimes Act (FCA) are there to combat crimes which is a matter of public policy.

The court said the DPP was within his mandate under the law when he instituted civil proceedings under the Financial Crimes Act in the original court.

“Preservation Orders are part of the combined regime which constitutes preservation orders as the first step, and forfeiture,” reads part of the ruling.

“In our view, we thus find preservation orders obtained under Section 65 of the FCA do not violate the right to a fair trial, right to be presumed innocent, the right to dignity and the right to property as enshrined in our Constitution,” it adds.

The preservation orders targeted 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 Constitutional Court has since referred the case back to the High Court to continue with the trial. 

In an interview after the ruling, Attorney General Thabo Chakaka Nyirenda welcomed the ruling, saying the State was ready to continue with the case.

He said the State is planning to file a forfeiture application before the High Court to enable the government to sell Chisale’s seized property.

On April 13 2021, High Court Judge Mike Tembo referred the case to then Chief Justice Andrew Nyirenda to certify it as a constitutional matter.