The High Court sitting as the Constitutional Court in Blantyre Wednesday threw out former president Bakili Muluzi’s application to declare Section 32(2) of the Corrupt Practices Act, which forms the basis of some of the 15 charges Muluzi is answering in the K1.7 billion corruption case, invalid.
The section states that any public officer who, after due investigation, is found to maintain a standard of living above that which is commensurate with his present or past official emoluments or other known sources of income shall be guilty of an offence.
Muluzi argued that the provision is in conflict with Section 42 of the Constitution which provides for a right to remain silent and also presumption of innocence until proven guilty. He, therefore, asked the court to declare Section 32(2) of the Corrupt Practices Act invalid.
But justices Dingiswayo Madise, Dorothy Nyakaunda Kamanga and Jack Nriva who sat in for Justice Sylvester Kalembera agreed with the State that the right to remain silent and presumption of innocence are limited rights.
The three judges said, in this case, the limitations are prescribed by law, reasonable and necessary in an open and democratic society of Malawi as per Section 44(2) of the Constitution.
The judges also said the Corrupt Practices Act was enacted to aid the Constitution and the Penal Code to curb corruption and enhance transparency and accountability among public officials, the bedrock of trust, the basis upon which all public officers govern, adding that the section cannot result in an unfair trial.
“It would be a bad day for justice for this court or any other court to come to a conclusion that giving an accused person [a chance] to explain the source of his/her property is violating his/her right to fair trial,” Madise said.
Steven Kayuni from the office of the Attorney General hailed the ruling while defence counsel Tamando Chokhotho expressed dissatisfaction with the ruling and said he would appeal against it.
“We have instructions [from our client] that if the ruling does not go our way, we should appeal,” Chokhotho said.
Muluzi was arrested in 2006 on suspicion that he diverted donor money amounting to K1.7 billion from Lybia, China, Morocco and other countries.
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