By Audrey Kapalamula & Wezzie Gausi
The High Court sitting in Lilongwe on Wednesday removed three counts from the charge sheet of Norman Chisale, former bodyguard of former president Peter Mutharika, and Peter Mukhito, former Chief of State Residences, who are answering a variety of counts in a K5 billion cement-gate case.
Chisale and Mukhito are among five suspects that are answering 18 counts for their alleged involvement in duty-free imported cement worth K5 billion.
Judge Chimbizgani Kacheche made the ruling following five preliminary objections that the two accused raised.
The objections included limitations of prosecution time for counts that are statute barred
The three counts include conspiracy to commit customs offences, in line with the Customs and Excise Act, aiding and abetting smuggling, in line with the Customs and Excise Act, and abuse of office, as provided for in the Penal Code, specifically the Criminal Procedures (CP) and Evidence Code (EC).
Chisale and Mukhito argued that, under Section 302A of the CP and EC, trial should have commenced within 12 months from the date the complaints arose and trial should have been completed within 12 months from the date trial commenced.
But the office of the Director of Public Prosecutions said in a situation where lesser offences have been charged jointly with more serious offences, the accused must not be discharged.
The State argued that the accused failed to elaborate the basis on which the State’s charges should be discharged, adding that the accused did not state whether the prosecutions are the cause for such delays, as required by Section 302A (3).
But Kacheche said the State has not disputed that the trial has not commenced within the time and that it was the duty of the State to show that the delay was not attributed to its conduct.
“Whether the offense is very serious or not is not up to us to decide. The Legislature decided that already. I will sustain the injunction and order that the accused person be discharged on counts 2.4 and 18,” he said.
Kacheche overruled the rest of the objections, which include use of a general instead of specific law, multiplicity of counts, lack of sufficient particulars of the offence in some charges and lack of certainty in Section 42 of the Money laundering Act for the purposes of charging an accused.
He has since asked the State to amend the particulars of count 17 of money laundering to show the particulars of the acts that amounted to aiding and abetting, and amend the charges according to the order before the accused can be called for plea.
Lawyer for Mukhito, Shadreck Mhango, described the ruling as fair.
“Some of the objections we raised were sustained, others were not,” he said.
In another development, High Court Judge Matapa Kacheche Thursday reserved his ruling on an application from the first accused person in the importation of cement case, Mohamed Shafee Chunara, to release his travel documents to go for a medical check-up in the United Kingdom.
Speaking to The Daily Times after the hearing, defence lawyer Gilbert Khonyongwa said his client applied for the release of the documents because he has booked an appointment with a doctor.
“Our client has a doctor’s appointment; so, we want the court to give the go ahead to have his travel documents released so that he should visit the hospital. So, we will be waiting for the ruling,” Khonyongwa said.
State lawyer, Senior State Advocate Mathews Chione, said the State has objected to the application made by the defence.
He said the case has commenced and that there is no need for him to travel outside the country.