High Court Judge Redson Kapindu Tuesday rebuffed Vice President Saulos Chilima’s application, in which he was seeking disclosure of the Malawi Defence Force (MDF)’s Council Minutes on the basis that the application is premature.
Delivering the ruling Tuesday morning, Kapindu said the court looked into the relevance of the sought documents to the charges that the accused (Chilima) is answering and found that they are not relevant to the case at this stage but that they could be admissible during trial if they have a bearing on fair trial.
Stressing this point, Kapindu said the matter is not closed as the defence can ask for the documents later after trial commences.
He, however, said the relevance must also be established by the defence at the point that the documents are needed.
In the event that this happens, the judge said the State would have to make a choice either to make the documents available or terminate the case to protect national security.
“If, during trial, such sensitive documents will prove to be relevant to fair trial for the accused, then the State, through the Anti-Corruption Bureau (ACB), will have to decide whether to have such sensitive information disclosed in open court or discontinue the case,” Kapindu said.
To appreciate the court’s observation that the documents being sought are, indeed, sensitive and not relevant to the case at this point, the judge has directed that the defence team’s lead lawyer, the Attorney General and ACB lead lawyer be allowed access to the sensitive documents on “only see basis”.
According to the judge, an oath of secrecy will be taken by the individuals to keep the information confidential.
The judge said the viewing would take place in the chamber, where custodians of the documents, namely the MDF, would show the documents to the team next week.
Commenting on the matter, ACB Chief Legal and Prosecutions Officer Imran Saidi said they would do everything possible to make sure that the case is not discontinued.
“The court has dismissed the request by the defence, where they were asking for three documents from MDF. The court says those documents are, at the moment, not relevant to the case and that the defence has not demonstrated relevance.
“So, because of that, the court has not found it necessary to allow those documents to be used as part of evidence now. When the trial commences and the defence proves that the said sensitive documents are relevant to the case, the State will do everything possible to make sure the matter continues,” Saidi said.
The documents the defence wanted to be disclosed include Minutes of the Defence Council Meeting held on October 16 2020 when it allegedly authorised the procurement of armoured personnel carriers (APCs); a Memorandum to President Lazarus Chakwera seeking authorisation to procure APCs from Malachite FZE, a company linked to United Kingdom (UK)-based businessperson Zuneth Sattar; and a Memo from President Chakwera to MDF responding to the request from the MDF Commander.
Defence lawyer Khumbo Soko said the defence is not weeping over the court outcome because the court has provided a big window for the defence to revisit the matter.
“Our lead counsel will have an opportunity to see that material. So, at the end of the day, what the court has said is that we cannot have a copy but we will see what is contained in those documents.
“Once we know what is in the documents, we can preposition ourselves and advise our client accordingly. We are not worried; this is a well-balanced ruling and fair in these circumstances,” Soko said
On Tuesday, the defence further asked for one more disclosure from the State, which is a Memorandum of Understanding between UK’s National Crimes Agency and ACB.
The MoU allegedly stipulates that what the UK sends to Malawi should be treated as intelligence and not evidence in court.
According to defence lawyers, the document in question was made available to other ongoing Sattar-related cases except for Chilima’s case.
Kapindu has since adjourned the case to May 3 2024 for the way forward and plea taking.
