Lawyers representing personal bodyguard for former president Peter Mutharika, Norman Chisale, and six others Thursday faulted the Preservation Order obtained to seize property belonging to Chisale, saying it was replete with irregularities.
Among other things, the lawyers, Chancy Gondwe and James Masumbu, Thursday filed an application before High Court Judge Mike Tembo and brought 13 grounds for the court to dismiss, with costs, the order which was granted late last month.
In their submissions, the lawyers argued that the State is not the right party or competent authority to these proceedings in view of the fact that these are civil proceedings in terms of Section 54(1) of the Financial Crimes Act of 2017.
The lawyers further argued that State is not a legal person at law capable of instituting civil proceedings.
“The proceedings have been filed by the Directorate of Public Prosecutions (DPP) who lacks locus standi in civil proceedings as his constitutional mandate is in criminal matters.
“The conduct of the Directorate of Public Prosecutions in commencing these civil proceedings in the Civil Division of the High Court is contrary to the powers and duties of the Director of Public Prosecutions as enshrined under Section 99(2) (a) of the Constitution of the Republic of Malawi,” the application reads,” the lawyers argued.
They further observed that the civil property preservation orders granted without notice (ex-parte) in terms of section 65 (2) of the Financial Crimes Act are tantamount to an unconstitutional infringement of the right to a fair hearing, including the presumption of innocence, the right to property and the right to dignity.
But the State, comprising DPP Steven Kayuni, Jean Priminta, Pilirani Masanjala, and Owen Chuma from the DPP’s office; Edwin Mtonga and Collins Chitsime from the Financial Intelligence Authority and Imran Saidi from the Anti-Corruption Bureau argued that the law was followed to the letter in obtaining the Preservation Order.
They argued that the State can pursue properties in relation to the fight against organised crime.
According to the lawyers, the actions by the State are pursuant to criminal investigations and possible prosecutions.
Justice Mike Tembo has adjourned the matter to a later date for ruling.