By Deogratias Mmana:
The High Court sitting in Blantyre has thrown out an application by businessman Zuneth Sattar for permission for a judicial review of the decision by the Anti-Corruption Bureau (ACB) to offer assistance to the United Kingdom (UK) government’s investigative agencies in obtaining evidence or information in Malawi concerning suspected criminal acts that he committed.
In pleading with the court to grant leave for judicial review, lawyer for Sattar argued that the Attorney General (AG) is the appropriate authority to deal with the UK government investigative agencies, not the ACB Director.
The court has also rejected another application for an injunction that sought to restrain the ACB from any sort of cooperation with the UK’s investigation agencies on matter’s surrounding the investigation on Sattar.
The application for an injunction also sought to restrain the sharing of any evidence that was obtained by the Anti-Corruption Bureau during the search and seizure operation it conducted on the homes and offices of Sattar.
The court declined to grant permission for judicial review holding that the grounds raised by Sattar were significantly based on speculation.
The court held that the claimant did not state with certainty that the officers of the UK’s investigative agencies would return to Malawi to get evidence obtained from the search.
Crucially, the court held, there was no evidence to show that the ACB had at all decided to share information from the search with their UK counterparts.
The court said that, even if officers from the UK’s investigative agency accompanied ACB officers during the search and seizure operation, as alleged by the claimant, that did not in itself show that the ACB intends to share the evidence gathered.
The court also dismissed the application for an injunction restraining any sort of cooperation between the ACB and UK investigative agencies because, having already found that there was no actual decision by the ACB but a probable future decision, there was no current decision worth restraining.”
Sattar wanted the court to quash ACB’s decision and to declare that the graft-busting body acted ultra vires [beyond its powers] and unreasonably. He further wanted the court to declare that all things done by the ACB in the purported mutual cooperation with the UK government are illegal and invalid.
The court order shows that Sattar was arrested on October 5 2021 in the UK on allegations of committing bribery in Malawi with unknown politically exposed persons.
On the same day, his home and offices were searched and several documents and cell phones were taken from him.
Simultaneously, the order says, on the same date and around the same time, the ACB officers also searched and seized several documents and cell phones from Sattar’s offices at Ocean Industries Ltd in Malawi.
According to the court order signed by Justice Michael Tembo and dated November 24 2021, Sattar’s lawyer Gilbert Khonyongwa argues that, according to law, it is only the office of the AG that is authorised to offer assistance and share evidence or information obtained from investigations in criminal matters in Malawi with foreign governments, including the UK.
The order says, according to Sattar’s lawyer, the search in Malawi, while being spearheaded by the ACB, was carried out in the company of some officials from the UK government.
“The claimant understands that these United Kingdom Government officers are due to return to Malawi so that they can be shared with evidence that was obtained by the 1st defendant at his premises,” reads the order under judicial review case number 68 of 2021.
The court agrees with Sattar that whenever assistance of the Malawi Government is sought by Commonwealth countries in criminal matters, by way of obtaining evidence or information from Malawi regarding criminal investigations for offences in those countries, the AG is the appropriate authority to receive requests for such assistance and to deal with them according to the Mutual Assistance in Criminal Matters (Designation of Authority) Order.
The court also agrees with Sattar that the AG is also the appropriate authority when it comes to similar requests under the Financial Crimes Act.
But, in his ruling, Tembo dismisses the applications arguing that the case is not worth investigating at a full trial because it appears to be significantly based on speculation.