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Muluzi, state in endless match

It is a dead end for former president Bakili Muluzi’s efforts to stop the Anti-Corruption Bureau (ACB) from prosecuting him after the Supreme Court on Tuesday gave the anti-graft body latitude to prosecute him.

But is Muluzi’s K1.7 billion corruption trial worthwhile after it has run for 16 years now and seen off eight ACB directors without noticeable progress while burning public funds that a high level Ministry of Justice source on Tuesday said is north of K1 billion?

His case to proceed: Muluzi

“We will have to go back to the drawing table to find a way forward on this case,” ACB director general Martha Chizuma said in an interview after  the bureau won the preliminary challenge that Muluzi, 79, raised.

Two former ACB director generals, Lucas Kondowe and Reyneck Matemba, are on record to have said the case requires a political solution while Public Affairs Committee (PAC) in January 2021, asked government to discontinue the case.

Following on Tuesday’s decision by the Supreme Court, Director of Public Prosecutions (DPP) Steven Kayuni on Tuesday, whose office is responsible for giving ACB consent to prosecute, said, in an interview, that prosecutorial discretion is a legal process.

“Evidence, including witnesses and availability of the same, are matters of serious consideration by prosecution,” he said.

The DPP said interests of justice would require a liaison with prosecutors and an introspection of a fresh look at this matter.

Once handled Muluzi case: Kondowe

But Attorney General Thabo Chakaka-Nyirenda said in a separate interview on Tuesdayrday he needed to understand the context in which the views that the case needed a political solution were made.

Muluzi, president from 1994 to 2004 who stands accused of amassing K1.7 billion corruptly, made an application where he was challenging the application of Section 32(2) (c) of the Corrupt Practices Act (CPA) in the case he started answering soon after leaving office.

The High Court’s Constitutional Court in February 2018 held the view that Section 32 (2) (c) of CPA was in tandem with the Republican Constitution;  that it did not in any way contravene Section 42 (2) (f) (iii) and Section 44 (2) and (3) of the Constitution, but unsatisfied with this finding, Muluzi appealed to the Supreme Court.

Section 32(2) (c) of the CPA stipulates that if one is found in possession of unexplained property, being property that exceeds one’s known sources of income and the person does not provide an account of it, it is presumed that the property or income was obtained corruptly.

Kayuni: Prosecution discretion is legal

Among others, Muluzi argued that the section reverses the onus of proof in respect of an essential element of the offence created and it places a legal burden of proof on the accused.

He further argued that the section does not pass the limitation tests in Section 44 (2) and (3) of the Constitution and that it infringes the prescription of innocence and the right to remain silent.

In an application challenging the High Court’s decision, Muluzi argued that the lower court erred in law by ignoring the applicant’s oral submissions and that it also erred for disregarding foreign case law.

He further argued that the High Court erred in law by failing to consider that the section lowers the standard of proof to that of a balance of probabilities and is, therefore, unreasonable, not recognised by international human rights standards and unnecessary in an open and democratic society and, therefore, unconstitutional.

Delivering the ruling in Blantyre on Tuesday, the Supreme Court of Appeal upheld the High Court’s decision.

The court noted that the first part of the section creates an offence that is complete in itself without any need for an accused person to prove his innocence. 

Reading the ruling, Justice of Appeal Frank Kapanda, accompanied by Chief Justice Rizine Mzikamanda and Lovemore Chikopa, said the burden of proving that the offence was committed remains throughout with the prosecution.

The court further found that the standard of proof required from the State is proof beyond reasonable doubt and dismissed the appeal in its entirety with each party to bear its own cost.

Said Kapanda: “As pointed out earlier, if at this point of interpreting a section it is found that the impugned provision does not place any legal burden on accused person and concludes that the section rather places an evidential burden, there is no need for further inquiry or analysis about the provision’s compatibility with Section 42 (2) (f) (iii) of the Constitution.

“As stated above, evidential burdens are regarded as compatible with the presumption of innocence. Of course, the court may proceed to discuss justification and proportionality of the evidential burden in order to justify the same in respect of Section 44 of the Constitution.”

Before delivering the ruling, Mzikamanda justified why out of seven Justices of Appeal hearing the case, only three were present. He said four judges have retired.

“By the time they retired, we had already made the decision,” said the Chief Justice.

In an interview after the ruling, Chakaka-Nyirenda and Chizuma said they were happy with the decision.

Chakaka Nyirenda said the provision that can help the country to fight corruption is Section 32 of the CPA, which criminalises possession of unexplained wealth by public officers.

He said: “We had so many cases that were pending, which could not be prosecuted on account of this pending case. So, the conclusion of this case will ease our work when we are pursuing cases in respect of corruption.”

Chakaka Nyirenda said the section has been there, but was rarely used by the bureau. He said his office would also use it in its civil assets recovery plan.

Chizuma said the ruling will ease the implementation of the lifestyle audit, which the bureau is planning to rollout before the end of the year.

In a separate interview, one of Muluzi’s lawyers, Jai Banda, said the defence will start preparing for the trial.

Muluzi is answering 15 counts of corruption, fraud and theft by public servants under the CPA Act and the Penal Code whose trial has dragged for 16 years.

Former ACB boss Reyneck Matemba, who once prosecuted Muluzi before he recused himself in the case when he was deputy director general, once said his personal view was that no one would come to the bureau and successfully prosecute Muluzi in the case, arguing the matter needed a political solution.

“I was the seventh person to prosecute that case; it doesn’t mean we are all failures and did not know our work. I had my own reasons why I recused myself from that case, which I only provided to the previous Legal Affairs Committee of Parliament.

“I repeat that case requires a political solution backed by the law. All relevant stakeholders must be involved, that is the ACB, Director of Public Prosecutions, the court and Parliament through the Legal Affairs Committee,” Matemba had suggested.

ACB directors that have overseen Muluzi’s case from 2004 to 2006: Gustav Kaliwo who resigned shortly after he arrested Muluzi, 2006 to 2007: The late Tumalisye Ndovi was rejected by Public Appointments Committee (PAC) of Parliament, 2007 to 2012: Alex Nampota was re-engaged after he previously deputised the first ACB boss Gilton Chiwaula in the late 1990s, 2012 to 2014: Justice Rizine Mzikamanda who returned to Judiciary, Malawi Supreme Court of Appeal, 2014 to 2017: Lucas Kondowe who left after his three-year contract expired, 2017 to 2020: Reyneck Matemba who at first was acting ACB chief and later as ACB DG, 2021 to date, Martha Chizum.

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