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Court throws out Kezzie Msukwa, nair plea

Grants temporary stay of ruling

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High Court Judge Redson Kapindu has dismissed an application by former minister of Lands Kezzie Msukwa and businessperson Zuneth Sattar’s agent Ashok Nair, who wanted their arrests by the Anti-Corruption Bureau (ACB) to be annulled.

Msukwa and Nair were granted leave for judicial review of their arrest as they were protesting the manner in which bureau operatives arrested them in December last year, as well as whether ACB could enter into mutual assistance with an international agency without the Attorney General’s involvement.

The two were arrested for allegedly being involved in corrupt activities with Sattar.

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Kapindu has, however, said Msukwa was wrongly handcuffed, hence he must be awarded costs.

In his ruling, which was delivered virtually, Kapindu said both Msukwa and Nair failed to establish that ACB’s application for a warrant of their arrest amounted to abuse of power and that it was done in bad faith.

He also said the court has also found no legal basis that a person may not be legally arrested while in hospital for purposes of treatment.

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“The first claimant [Msukwa] stated that he was fully in his right mind. The court has, therefore, found no legal basis for faulting the decision of the defendant to have him arrested at Partners in Hope hospital,” he said.

The judge further said the ACB is at liberty to arrest anyone, anywhere and any day.

Kapindu, however, said the court has found that the conduct of ACB officers, who used handcuffs on Msukwa as he was in the course of being admitted to the hospital, as well as their decision to tie his hand to a drip stand when there was no security risk, amounted to inhuman and degrading treatment.

He said, as such, the former Cabinet must be awarded costs.

The judge, however, said the improper use of handcuffs on Msukwa was no basis for staying, let alone invalidating, the arrest that had already been affected and staying the related legal processes that were to proceed thereafter.

On the arrest of Nair, the judge said the court has not found any legal basis that arresting him on a Friday was only aimed at embarrassing him.

“The burden of proof lay on the claimant that being arrested on a Friday , which is followed by a weekend, amounts to improper arrest. This court has also found no basis that his constitutional right, including the right to personal liberty and privacy, was violated,” he said.

The court also faulted Msukwa and Nair for failing to demonstrate that ACB’s decision to arrest and prosecute them was based on information shared by the National Crime Agency (NCA) of the United Kingdom, rather than its investigations, after receiving triggering information from the agency.

Kapindu added that ACB did not act outside its powers by cooperating with NCA , without the involvement of the attorney general, under the Mutual Assistance in Criminal Matters Act.

“The court has found that the text of Section 5(1) of the Act, when read in the broad context of the Act as a whole, suggests that [an] enforcement agency can enter into formal or informal cooperation arrangement with such other agencies outside Malawi,” the ruling reads.

The court has, however, cautioned prosecuting agencies in the country to be careful and ensure that they proceed with all the diplomatic decorum that should be consistent with operations of the NCA nature.

The ruling, according to Kapindu, meant that all stay orders obtained have been vacated.

However, Msukwa’s lawyer, Chimwemwe Kalua, indicated to the judge that they would appeal the decision to the Supreme Court of Appeal.

He further asked the court to make a fresh order to stay implementation of the decision pending a determination of appeal proceedings.

In his response, Kapindu said the court did not see the essence of an enduring order of stay of proceedings in the present matter.

But he said, in the interest of balancing between the need for the defendant to proceed with legal processes at their own discretion and the right of the first claimant to have a prospect for a meaningful remedy in the Supreme Court of Appeal, the court granted only a limited and temporary order of stay for 14 days

“It restrains the ACB from remanding Msukwa into custody pending the determination of the Supreme Court of Appeal on a broader application of stay of proceedings for 14 days,” he said

Kapindu, however, said ACB is at liberty to proceed with all other legal processes that it might wish to pursue in connection with the matter.

The ACB said Msukwa, in his capacity as Minister of Lands, Housing and Urban Development, between July and August in Lilongwe, was concerned with a land dispute matter connected with his jurisdiction in Lilongwe’s Area 46 plot number 46/2057 between Sattar and local inhabitants and corruptly obtained an advantage in form of a Mercedes Benz C Class from Sattar for the advantage of a Moses Kafunda.

Msukwa is also alleged to have corruptly obtained from Sattar, through Jussab, the sum of K4 million to cool down local inhabitants.

In the third count, Msukwa is alleged to have corruptly obtained from Sattar, through his agent Ashok Kumar Sreedharan, the sum of K15 million to buy land in Chipoka, Salima District.

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