The Lilongwe Chief Resident Magistrate’s Court on Wednesday threw out the perjury case against four of the 12 accused in the ongoing treason case pending a High Court ruling on whether the Director of Public Prosecutions (DPP) complied with the Malawi Constitution in taking the case back to the magistrate’s court.
The perjury case was one of the seven charges against the 12 accused and was alongside the other charges committed to the High Court before the DPP discontinued the case in the High Court and took it back to the magistrate’s court. This development raised protests from the accused’s lawyers.
Among other things, the defence lawyers argued that the DPP did not comply with constitutional provisions by not providing reasons to the Legal Affairs Committee of Parliament for the discontinuance of the matter in the High Court.
In her ruling, chief resident magistrate Ruth Chinangwa referred the matter to the High Court for determination on whether the DPP complied with the constitutional requirement of providing reasons to the committee.
Said Chinangwa: “The proceedings in this court regarding criminal cases number 383 to 386 of 2013 are stayed pending the decision and guidance from the High Court. Any aggrieved party has the right to appeal to the High Court within 30 days from date of pronouncement.”
In the perjury case, the four accused face two counts each. The four failed to take plea when they first appeared before the court on April 10 2013 following the protest by their lawyers against the DPP.
The four are Democratic Progressive Party (DPP) president Peter Mutharika who is under criminal case number 383, former chief secretary to the government Bright Msaka under criminal case number 384, former Cabinet ministers Goodall Gondwe under case number 385 and Jean Kalirani under case number 386 of 2013.
Although Chinangwa observed that the DPP’s action was legally in order to discontinue a matter which has been committed to the High Court, she faulted the State on a number of issues, including the failure to give reasons to the Legal Affairs Committee of Parliament as required by the Constitution.
Chinangwa said being a matter dealing with interpretation and application of the Constitution, the issue was beyond the jurisdiction of her court.
On whether the matter that was discontinued in the High Court is the same as the one which has started in the magistrate’s court, Chinangwa observed that although the charges are based on different sections, the offences are based on the same facts.
Chinangwa also left it to the High Court to give direction on whether a discontinued case can be recommenced and where such a discontinued matter could be restarted.
DPP Bruno Kalemba, in an interview after the ruling on Wednesday, could not immediately say what action the State will take.
He said: “We have 30 days to appeal, if we would want to appeal. Any decision will be decided after going through the ruling.”
Apart from the four, others in the treason case include former ministers Henry Mussa, Symon Vuwa Kaunda and Patricia Kaliati, former deputy ministers Nicholas Dausi and Kondwani Nankhumwa, former deputy chief secretary to the government Necton Mhura, former presidential guard commander Duncan Mwapasa and the late Bingu wa Mutharika’s legal adviser Allan Ntata.
While Mwapasa is yet to be charged, Ntata was charged in absentia as he is reported to be abroad.
The 12 are facing different charges in relation to the role they played during the death of Mutharika in April last year and in handling the transition. They are being accused of trying to circumvent the Constitution by preventing the then vice-president Joyce Banda from taking over as President soon after Mutharika’s death.
The arrests followed the release of a report by a commission of inquiry appointed by Banda to investigate the death of Bingu wa Mutharika and issues surrounding the succession.