The Chief Resident Magistrate’s Court in Lilongwe has faulted the Anti-Corruption Bureau (ACB) for dispossessing CDH Investment Bank chief executive officer (CEO) Misheck Esau of his two mobile phones without following procedures.
Chief resident magistrate Violet Chipao, who released on bail Esau following his arrest by the graft-busting body on Tuesday, yesterday ordered the ACB to return Esau’s phones.
The order effectively quashed the State’s request to hold on to the mobile phones purportedly for further examination and investigation.
Said Chipao: “The State is free to make a formal application for a search warrant which can be done interpartes or ex-parte, but in the meantime, the phones should be returned to the owner.”
Blantyre-based Esau was arrested on Tuesday for allegedly failing to conduct due diligence and monitor business relationship and the transactions of Pioneer Investments, a contractor in the controversial K2.7 billion Malawi Police Service (MPS) food rations deal, with the financial institution.
The bail conditions for Esau included a cash bond of K250 000, two sureties with K500 000 each not cash and that he should appear at ACB offices once every fortnight. Besides, he is also expected to notify ACB if he wants to travel abroad.
Four charges were read out to Esau, but he was not allowed to take a plea.
The charges include conspiracy contrary to Section 35 as read with Section 25 B of the Corrupt Practices Act (CPA); Failure to conduct due diligence and monitoring contrary to Section 29 of the Financial Crimes Act; influencing the use of public office for advantage contrary to Section 25B (2) of the CPA and money laundering contrary to Section 42 (1) (c) of the Financial Crimes Act.
Esau was all smiles outside the court as well-wishers and his relations hugged and shook hands with him.
Earlier in the courtroom, lawyer representing Esau, Alick Msowoya, described the conduct by ACB as a breach of the law, especially considering that the State had only obtained a warrant of arrest and not a search warrant.
But ACB lawyers pleaded with the court to allow them make an application for a search warrant for the phones, but the magistrate ruled in favour of the defendant.
The case has since been adjourned to March 21 2019.
Both prosecution and defence lawyers said the case is expected to be committed to the High Court where other suspects, including Zameer Karim of Pioneer Investments, are also answering charges on the dubious K2.7 billion deal.
The office of the Attorney General (AG) is said to have committed Malawi Government to pay CDH Investment Bank, on behalf of a private contractor, in the deal.
The case came to light last June through a leaked ACB investigation report which indicated that government paid K2.7 billion directly to Pioneer Investment against an undertaking by an officer at MPS to pay the contract price to CDH investment Bank Limited.
The direct payment to the contractor saw the bank losing out; hence, the court action.
The investigation report also mentioned the governing Democratic Progressive Party (DPP) as a beneficiary of the proceeds as Karim deposited K145 million into its bank account at Standard Bank whose sole signatory was President Peter Mutharika.
The AG voluntarily joined the case as a third defendant after CDH Investment Bank took to court Karim as first defendant and The Oil and Protein Company Limited as second defendant in the High Court Commercial Division classified as commercial case No. 276 of 2017. n