The High Court in Zomba on Monday granted the State its wish to postpone to a later date confiscation of assets of convicted businessperson and politician Oswald Lutepo and proceed with sentencing first.
High Court judge Redson Kapindu made the ruling after the State, through Director of Public Prosecutions (DPP) Mary Kachali, requested the court to defer the confiscation order and pecuniary penalties citing, among others, discrepancies in the values of assets declared by Lutepo, a former People’s Party (PP) national governing council (NGC) member.
In its submission, the State argued that the law mandates it to apply for a confiscation order not more than 12 months after the suspect’s conviction.
But when the State made the request last Thursday, Lutepo’s lawyer, Oswald Mtupila, objected, arguing that doing so would have meant meting out “double punishment” to the convict in the event that he is handed a severe sentence.
However, the development resulted in a lengthy debate between the State and defence legal teams that took almost the whole day, forcing the presiding judge to adjourn the matter to Monday for his declaration and determination on whether to proceed with sentencing.
on Monday, the judge ruled that sentencing and confiscation order could be treated differently and granted the State’s desire to have the sentencing precede the confiscation order, but with a few conditions, including that the State should consider bringing either the confiscation order alone or together with pecuniary penalty order as the two have different implications.
Ruled the judge: “I order that the sentencing process can continue while the application [for confiscation order by the State] is postponed for a period of 60 calendar days or to such an earlier day as the State may apply.”
In an interview after the adjournment, both the State and defence said they had no problems with the court’s determination.
Said Mtupila: “The ruling is beneficial to the jurisprudence of the Malawian legal system in the sense that previously we didn’t know what is supposed to be done when one has been convicted. So, the court has said confiscation order may be postponed and proceed with the sentencing but with some conditions which are contained in the ruling.
“And we have requested the court to give us a few days to digest the ruling. So, in this regard, we have no problem with the court’s decision.”
The matter has since been adjourned to August 7 when the State will advise the court about its decision on the type of application to make.
On her part, the DPP said the State needed to seriously consider the type of application in order not to misrepresent to the public what the ruling is about.
She said: “We don’t want the government and Malawians to lose out because of the decision we will make. That is why we have asked the court that we pause a bit and think seriously before coming up with a decision.”
Lutepo was convicted on his own plea of guilty on charges of conspiracy to defraud government and money laundering K4.2 billion between April and September 2013. n