The Malawi Law Society (MLS) has faulted High Court Judge Zione Ntaba for suspending the arrest of Lands Minister Kezzie Msukwa, saying she should not have granted the order to stay the arrest.
Msukwa was arrested on allegations of corrupt practices in relation to how Zuneth Sattar acquired land in the country.
However, Ntaba stopped the arrest for at least seven days after being moved by Msukwa, who also applied for leave of judicial review on the arrest.
MLS— in a statement which its president Patrick Mpaka and Honorary Secretary Chrispin Ngunde have signed— opines that since Ntaba refused to determine the main application, which is the application for the leave of judicial review, she should not have granted the order to stay the arrest.
“The Law Society observes that the public is concerned with the way the court has dealt with and decided the issues of stay.
“The Law Society shares in the public concerns. Given that the court has not decided the first question (i.e. to grant or not to grant leave for judicial review), there appears to the Law Society no basis to deal with the conditional question of stay given that the ruling records that Mr Msukwa expressly asked for stay ‘if permission to apply for judicial review is granted’. And on that basis the Law Society is of the view that the court should not have proceeded to grant the order of stay,” it says in a statement.
MLS recommends that, while it respects the ruling, for the time being, the Anti- Corruption Bureau (ACB) may apply to courts, asking them to set aside the order or to review it and for the bureau to point out the apparent errors in the January 1 2022 ruling so that the bureau is able to carry out its mandate without any legal impediment.
The society, however, observes that the ruling remains valid until it is dealt with by the court.
“The Law Society wishes to advise the general public to understand that the above observations notwithstanding, an order of the court remains valid and effective unless otherwise dealt with by the court.
“The court may have an explanation for crafting [the] order in a certain way and it is advisable to revert to court for the court to explain, vary or set aside its order,” the statement points out.
ACB Director Martha Chizuma is quoted in the local media as saying the bureau would, indeed, comply with the order but approach the court to discharge it.
Law expert Kamudoni Nyasulu said the ACB could as well ignore the court’s ruling, describing it as illegal.
“The decision of the High Court purporting to suspend or stay the arrest of Kezzie Msukwa is, in legal terms, per incuriam, and in common language, illegal. Since illegality is not enforceable the Anti-Corruption Bureau is at liberty to ignore this court’s decision and therefore, the ACB, the police and the prisons, whichever authority is holding Kezzie Msukwa, can refuse to release him on the basis of this court order.
“It is per incuriam because it ignores Section 6 of the Criminal Procedure and Evidence Code, which requires that all criminal matters should be inquired into or otherwise dealt with in accordance with the said Code; the Court in Zomba dealt with the matter as if it was civil,” he said.