A victim of the Forfeiture Act of the Kamuzu Banda administration has taken government to the African Court on Human and People’s Rights for failure to honour a compensation claim of about K800 million.
According to court documents we have seen, the applicant, Harold Mbalanda Munthali, has sued government on behalf of his family and late father, whose property was seized in 1976.
His father, according to the application, was a businessperson who had accumulated substantial wealth, including houses and land, which were confiscated in an unreasonable manner.
He further claims that the deceased registered a complaint with the constitutionally–established National Compensation Tribunal (NCT), which validated the complaint, but never paid compensation until its mandate expired around 2004.
NCT was given a 10–year mandate (1994 -2004) to compensate victims of the brutal one-party rule as a process of national healing and reconciliation.
“In spite of the deceased’s best endeavours, no compensation or reparation was forthcoming from the tribunal until it wound up its operations upon the expiration of its lifespan. The deceased’s complaint before the tribunal, therefore, remains one of those matters that the tribunal wound up without having conclusively resolved.
“Frustrated with the lack of progress on his claim before the tribunal, in or around 2005 the deceased instructed lawyers to commence action against the government before the High Court of Malawi, seeking compensation for all the real and personal property that he had lost,” reads part of the application to the African Court.
Through his lawyers, Barnet and James, Munthali argues that his case was unfairly dismissed by the High Court, which contended that there was no need for compensation on account that the NCT had been barred under the statute of limitations in Malawi.
But the applicant’s submission to the continental court argues that his right to compensation remains valid because he had lodged a complaint to the tribunal on time.
“As of the year 1995, the deceased, in compiling and valuing his lost property, pegged his total loss at K10 285 254.97. At the time the compilation and computation was done, the official exchange rate between the Malawi kwacha and United State Dollar was K15.28 to $1. And the total value of the deceased’s loss is presently estimated at $ 1 104 539.87 [about K800 million],” further reads the application.
In an interview with Nation on Sunday, chief State advocate Pacharo Kayira confirmed receiving a writ from the African Court on Human and People’s Rights.
“I can confirm that the case is being handled by a team led by the Ministry of Justice and Constitutional Affairs and also Ministry of Foreign Affairs. Our arguments have been duly filed and we are waiting for the court to let us know when the case will be held,” he responded.
The Munthali case is just one example of thousands of cases in official government files, seeking compensation for the suffering endured during the one-party rule on account of arbitrary loss of property and detention without trial, among other issues.
Last October, the office of the Ombudsman launched a report titled ‘Malawi’s unhealed Wounds’, which revealed abuse of funds allocated for compensation under the compensation tribunal.
According to the report, the tribunal prioritised compensation for individuals connected to the United Democratic Front (UDF) over other victims.
When launching the report, Ombudsman Martha–Chizuma Mwangonde asked the office of the Attorney General to start negotiations with claimants’ representatives through a process overseen by a mediator before the end of January this year.
But in an e-mail response last Friday, Mwangonde expressed frustration that the office of the Attorney General had not yet respected the call to compensate about 19 000 victims who missed out on the NCT list.
“The fact of the matter is that until this issue is properly sorted out by the Government of the day, it will not die a natural death. The wounds remain unhealed. Unfortunately, all the governments of the multiparty era—[UDF, DPP and PP]—have all failed to do that,” she said, adding that the issue will always haunt the nation.
Commenting on the development, Human Rights Defender Undule Mwakasungula appealed to government to allocate funds for compensation in the interest of justice, reconciliation and national building. Mwakasungula, like the Ombudsman, fears that this issue will continue haunting the country; hence the need to sort it out once and for all.
Malawi is party to the African Charter on Human and People’s Rights, which establishes the African Court on Human and People’s Rights, which basically is the final resort when citizens in member States have exhausted or are dissatisfied with local justice system.