Former president Peter Mutharika’s aide Norman Chisale has applied to the Supreme Court of Appeal to have his civil forfeiture case stayed pending conclusion of the criminal case he is answering which, he says, relates to the same property.
In the alternative, Chisale wants the court to refer his application to the Constitutional Court to determine if the requirement for him to explain his wealth is not infringing on his right to remain silent in the criminal case he is answering.
“The first respondent shall seek the determination of the four questions and where the honourable court finds that the same relate to application of and interpretation of the Constitution, the court should refer them to Chief Justice for certification as constitutional matter under Order 19 Rule 7 (1) of the Courts (High Court) (Civil Procedure) Rules, 2017,” the application reads.
Justice of Appeal Ivy Kamanga is expected to hear the application today in her chambers and Attorney General Thabo Chakaka Nyirenda said he will challenge it.
“We will appear before Justice of Appeal Kamanga Tuesday [today] and we will vehemently oppose that application,” he said.
On November 17 this year, High Court Judge Michael Tembo dismissed, with costs, Chisale’s application to stay the proceedings.
Hearing the application virtually, Tembo dismissed Chisale’s application but ordered that whatever he says in the civil forfeiture case should not be used in the criminal proceedings Chisale wants to remain silent in.
“By making this order that evidence in these proceedings will not be used in the criminal proceedings, the court will protect his right to remain silent and, for that reason, his request to stay the proceedings is dismissed with costs to the claimants because this application is far off. The respondents are therefore required to respond to the forfeiture application within 21 days,” he said.
Tembo also declined Chisale’s application to refer the interpretation of the right to remain silent, in relation to the requirement of respondents to explain their wealth, to the Chief Justice for certification as a constitutional case, saying it was not worth it.
Both the Attorney General and Director of Public Prosecutions Steven Kayuni objected to the application, saying staying the proceedings would pose a huge risk on the property in question.
Kayuni said Chisale’s argument that the civil forfeiture proceedings can prejudice the criminal proceedings bordering on the same subject matter is stale and no longer part of common law.
He claimed that Chisale’s application to stay the forfeiture proceedings is only aimed at delaying the proceedings, saying, so far, Chisale has only been bringing applications on technical issues, such that there is no challenge on the substantial forfeiture application that is before the court.
Chakaka Nyirenda concurred with Kayuni, saying staying civil proceedings to pave the way for criminal proceedings is an archaic principle that is no longer applicable.
“Even if the common law was to grant such stays, the court still has discretion either to stay the proceedings or not. These are unique proceedings dealing with significant property that can dissipate, lose value or even be disposed of although there is a preservation order in place,” he said.
Chakaka Nyirenda said it would be a waste of time for the court to refer interpretation of the right to remain silent in relation to unexplained wealth to the Chief Justice for certification as a constitutional matter, saying the Supreme Court of Appeal already dealt with the issue in the Bakili Muluzi case.