Lawyer for Enlightened Christian Gathering leader Shepherd Bushiri and his wife Mary Monday applied to the Lilongwe Chief Resident Magistrate Court to have their extradition case referred to Chief Justice (CJ) Andrew Nyirenda for certification as a constitutional matter.
Lawyer Wapona Kita said there was a need for the Constitutional Court to interpret whether the Southern African Development Community (Sadc) Extradition Protocol, which he said has not been domesticated in Malawi, could be used in discharging the matter.
He argued that Gauteng Director of Public Prosecutions Sibongile Mzinyathi based her extradition request for the Bushiris on the Sadc instrument.
The Sadc Extradition Protocol was signed in 2003 on behalf of Malawi by former president Bakili Muluzi but, 18 years after he did so in Angola, the instrument is yet to be domesticated in Malawi.
“Contrary to the thinking by the State, the defence is not trying to delay the hearing of the matter but it wants procedures to be followed
“The request to refer the matter to the Constitutional Court is not for the Constitutional Court to dismiss the matter, but that the Constitutional Court should help in interpreting the issue of the Sadc Protocol. The onus on whether the case should be dismissed would still be in the hands of this court,” Kita said.
He added that South Africa’s Extradition Request conforms to the Sadc Protocol, which is the treaty, instead of complying with Malawi’s extradition law.
But, in his submission, Director of Public Prosecutions Steven Kayuni said Kita had deliberately chosen to ignore the existence of the 1972 Bilateral Agreement between Malawi and South Africa as well as provisions of the Extradition Act.
Kayuni said the State did not dispute the fact that the Sadc Protocol had not been domesticated but was quick to note that, even by taking away the Sadc Protocol, the case could still be discharged using the Extradition Act and the Bilateral Agreement.
Kayuni wondered about the question the Constitutional Court would attempt to resolve in the matter.
Chief Resident Magistrate Patrick Chirwa has, meanwhile, adjourned the case to Friday, when he would deliver his ruling on whether to refer the matter to the CJ for certification of referral to the Constitutional Court.