The High Court has r eferred former president peter Mutharika’s personal bodyguard Norman Chisale’s assets case to Chief Justice Andrew Nyirenda to certify it as a constitutional matter.
In a ruling delivered yesterday, High Court Judge Mike Tembo said the court will wait for the Chief Justice’s determination to be guided on how to move forward.
On February 25, the State through the office of the Director of Public Prosecutions (DPP) was granted a preservation order in which Chisale’s property, worth K1.7 billion, was seized.
But in his arguments before the court, Chisale said the State is not the right party to begin such proceedings and that the State is not a legal person at law capable of instituting civil proceedings.
The defendant further argued that the preservation order was granted without notice in terms of Section 65 of the Financial Crimes Act, and that the DPP lacks mandate in civil proceedings as his constitutional mandate is in criminal matters.
Chisale also argued that beginning of the proceedings by the DPP in the civil division of the High Court is not consistent with his powers and duties as per Section 99 (2) of the Constitution.
He also argued that commencement of the proceedings by the DPP under Section 65 (2) and (3) of the Financial Crimes Act is unconstitutional as it contravenes Section 99 (2) (a) of the Constitution.
Chisale had initially asked the court to discharge the order.
Reacting to the ruling yesterday, Chisale’s lawyer Chancy Gondwe said he was happy that ruling on the preliminary issues on the preservation order has been referred for certification to the Constitutional Court.
Tembo has referred the matter to the Chief Justice to determine if court proceedings by the DPP under Section 65 (2) and (3) of the Financial Crimes Act, being civil proceedings, are unconstitutional and in contravention of Section 99 (2) (a) of the Constitution.
The matter has also been sent to the Chief Justice’s office to determine whether civil property preservation order granted by the court without notice in terms of Section 65 (2) of the Financial Crimes Act is tantamount to an unconstitutional infringement of the right to a fair hearing, the presumption of innocence, the right to property and the right to dignity as provided in the Constitution under sections 42 (2) (f) (iii) and 19, respectively.
The office of the DPP through the Asset Forfeiture Unit, the Financial Intelligence Authority , Ant i – Corruption Bureau and Malawi Police Service Fiscal and Fraud Department and other law enforcement agencies jointly applied for the court order which Tembo granted.
DPP Steve Kayuni is on record as having told The Nation in an interview that Chisale’s assets are believed to be proceeds of crime; hence, likely to be seized by government.