It’s been 12 years and still counting. The prosecution of former president Bakili Muluzi this month enters a crucial phase with the Constitutional Court expected to deliver judgement amid frustration from various parties on cost implications of the delay of the case.
Judiciary has told Nation on Sunday that the judgement is ready and will be delivered this month and, according to legal experts, the ruling could see the court invalidating Section 32 of the Corrupt Practices Act, or validating it, something that will have bearing on direction of the case.
Muluzi is being accused of diverting K1.7 billion of public funds to his personal account during his rule—between 1994 and 2004. Trial began in 2006 but since then the case has not moved a distance.
In 2011, Muluzi’s case was referred to the Constitutional Court to determine the constitutionality of Section 32 of Corrupt Practices Act, which puts the burden on the accused to prove their case against the general principle, where the burden lies in the hands of the State.
This followed an application by the defence counsel and a panel of three judges—Slyvester Kalembera, Dorothy Nyakaunda Kamanga and Dingiswayo Madise—are expected to make a determination on the matter.
The Judiciary and the defence cite the complexity and technicalities of the case as the cause for the delay.
In an interview with Nation on Sunday, High Court and Supreme Court of Appeal registrar Agnes Patemba, without being specific on the actual date, said the judgement is ready and will be delivered within this month.
Asked why the case has dragged for years—igniting suspicion—Patemba cited a number of reasons, ranging from Muluzi’s ill-health to judges’ busy schedules as well as the complexity of the case.
“There are times when courts are geared to speed up matters. However, parties sometimes accuse courts that the spirit will not do justice to the case where you have lots of documents to tender and so many witnesses to testify. We should also note that judges have other equally important cases that they attend to,” said Patemba.
In a telephone interview, defence lawyer Tamando Chokotho said while it is in the interest of Muluzi to have the matter concluded as soon as it is practical, he shares the opinion of the Judiciary that the case at hand is delayed due to technicalities.
“The case has indeed taken long. We understand there are a number of technical issues and the arguments were quite voluminous. So, as a legal practitioner, I understand why it is taking long, but only the courts can explain better,” he said.
But private practice lawyer and executive director of Justice Link, Justin Dzonzi, the delay is more of a tactic than an issue of technicality as he heaped blame on both the defence counsel and the Judiciary.
He contends that courts have powers to set time frame for any case, adding that it is surprising that this discretion does not seem to apply in the Muluzi case.
“What one sees is a deliberate move by either the government or defence counsel to frustrate or deliberately prolong proceedings. And in some cases, the courts, too, have been complicit because the judge has the mandate to say this case has been going on for so long and I want it concluded by this period of time,” explained Dzonzi.
Another private practice lawyer Bright Theu said it sounded ridiculous to cite complexity as one of the reasons for delaying conclusion of the case.
“I think that it is an indictment of our criminal justice system: here, mainly the prosecution, and the courts to an extent. The case symptomises that the wheels of criminal justice can be slowed down and pander to political dynamics and convenience.
“The prosecution has failed to do what it ought to do to prosecute the case to finality within reasonable time, to which Muluzi is entitled as a matter of right. The prosecution’s failure has been marred with reported political pressure that is informed by what is politically convenient at a time. The courts have facilitated such tardy prosecution of the case by failing to give trial directions that would see the case through to its finality while ensuring that the accused’s rights are respected.
“Instead, the courts have, among others, allowed for inexplicably lengthy adjournments. I should like to think that there have been complex cases prosecuted to finality in the course of the life of this case, even though the issues in such other cases may not be identical to those in Muluzi’s case. By any stretch of imagination, this case falls outside of the margin of what would be considered reasonable time for running a case to its finality,” he said.
Last year, at the end of a two–day conference on corruption in Lilongwe, Chief Justice Andrew Nyirenda said corruption derailed the country’s progress; hence it should be treated as an ‘emergency’.
He talked about handling cases of corruption with urgency and speed, a statement which is in sharp contrast with what is happening around the Muluzi case.
The continued delay of the Muluzi case also comes in the face of witnessed speedy trials of similar nature under Cashgate, with both the Anti-Corruption Bureau (ACB) and the office of the Director of Public Prosecution (DPP) scoring marks for some successful prosecutions.
But the Muluzi case gives a wrong impression of the country’s commitment to fighting corruption as some commentators speak of selective justice.
Sources within the justice system claim that government has blown over $12 million—which is more than the contested amount of K1.7 billion—in prosecuting the case in terms of legal fees, logistics and other administrative expenses.
However, ACB spokesperson Egritta Ndala could not confirm how much has been spent so far in the Muluzi case, but she said the delay has negatively affected their operations.
“The ACB cannot quantify how much it has used in prosecuting the case. This would require a lot of time and human resource to retrieve that information, some of which maybe in the archive,” she said.
Ndala also indicated that the Judiciary has contributed to the delay of the case, which also risks of losing memory when trial commences again.
“Delays in concluding prosecution of any case are a cause for worry for the ACB as this negatively affects the bureau. There is also a risk of loss of memory about the facts of the case by the witnesses.
“In addition, such delays are more costly to the State as the witnesses sometimes relocate from their original places to other places which may be farther than where they were when the offence was committed. Sometimes the State loses witnesses due to death,” added Ndala. n