By Mercy Matonga:
Barely weeks after former vice president Cassim Chilumpha sued government for unlawful arrest for the protracted treason case, government has filed an application to revive the case.
In October last year, the High Court discharged Chilumpha from the treason case, saying the State had failed to prosecute the matter.
Chilumpha was, for the past 17 years, under prosecution after being accused of plotting to assassinate former president Bingu wa Mutharika, when he served as Mutharika’s deputy, in 2006.
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He was arrested alongside businessman Yusuf Matumula.
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The move to release Chilumpha from prosecution prompted the former vice president to launch a K24 billion lawsuit.
But in court documents seen by The Daily Times, the State says it wants to continue prosecuting him, with hearing before a judge scheduled for April 22 this year.
“Despite the slow going of the matter, the State is still keen on prosecuting this matter. It is on account of this fact that the State makes this application for reinstatement of the case,” reads a submission filed by Chief State Advocate Josephine Kumitengo Gwaza.
“It is the State’s submission that the application for reinstatement be granted. The law under Section 247 (2) of the CP&EC [Criminal Prosecution and Evidence Code] allows the State to recommence the prosecution of a discharged accused if it is done within 12 months from the date of the discharge and the prosecution is based on the same facts as the previous matter. The two requirements are satisfied in the present application,” she adds.
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According to the State’s charges, the key witness was Thomas Ndlovu, a South Africa-based Malawi national who proposed to Matumula the idea of assassinating Mutharika.
The State further alleges that the idea was for Chilumpha to take over power.
The two allegedly met Chilumpha at the vice president’s official residence, Mudi Residence, and discussed the assassination plan, with Ndhlovu reportedly recording the conversations.
The government has invested significant resources in prosecuting the case, including hiring United Kingdom-based Queen’s Counsel Anthony Berry to handle the legal proceedings.
In an interview, Chilumpha’s lawyer Sammer Chilumpha accused the State of reinstating the case because of Chilumpha’s multi-billion Kwacha lawsuit.
“In their application, they have failed to explain why they sat and did nothing for the 11 years that the case was dormant. I suspect that they have only taken an interest because Dr Chilumpha is seeking to be compensated and they are hoping that this strategy will delay those attempts at being compensated,” the lawyer said.
The case has gone to both the High Court and Constitutional Court, with the government also providing allowances to investigators for foreign research.
According to The Nation newspaper, by 2013, government had spent K200 million ($487,804) on the case.
According to The Nation, Berry alone claimed £158,227.22 (approximately K70 million at the June 2012 exchange rate and around K110 million at the current exchange rate) in legal fees for the previous year alone.
Given the passage of 10 years and inflation, current costs are likely higher than those that applied before.
Recently, Chilumpha dragged the Attorney General (AG), as principal legal officer for the Malawi Government, to court and demanded K24 billion in damages over his arrest on April 28 2006, while he was serving as State vice president.
He also wanted the government to pay him for prosecuting him for 17 years.
But AG Thabo Chakaka Nyirenda said at the time that he would defend the claim.
According to court documents, Chilumpha is seeking K6 billion as punitive/exemplary damages; K4 billion as damages for inconvenience; K5 billion being damages for malicious prosecution; and K4 billion as damages for defamation.
The Assembly for Democracy and Development leader is also demanding K5 billion as Common Law damages and compensation, as per sections 41(3) 46(4) of the Constitution, for the violation of his rights as provided under sections 41 and 42 of the Republican Constitution.
Further, Chilumpha is claiming money expended, accrued and currently owed as fees for his legal practitioners under Criminal Cause Number 13 of 2006 and Constitutional Cause Number 5 of 2006.
The money is yet to be assessed.
He is also demanding the sum expended as his bail bond to be assessed.
According to the court summons, the Government of Malawi, on or about April 28 2006, arrested Chilumpha and subsequently held him in police custody at various police stations and prisons.
It says Chilumpha was charged with the offences of treason, in line with Section 38 of the Penal Code, and conspiracy to murder, in line with Section 227 of the Penal Code, under Criminal Cause Number 13 of 2006.
He was eventually granted bail by the High Court of Malawi on or around May 15 2006.
“The claimant [Chilumpha] resultingly remained accused of the above offences for the period of 17 years and two months, until he was finally discharged as an accused person by Order of the High Court of Malawi on the 18th of October 2023, despite stem opposition from the defendant [AG] at the time.
“The failure on the part of the prosecution to have the matter heard and/or concluded over such an unreasonably long period was not only unfair and unjust, but also cruel, inhumane and greatly infringed on the claimant’s rights as guaranteed under sections 41 and 42 of the Constitution of Malawi, among other rights,” court documents read.
It adds that the AG’s actions throughout the period had clearly indicated a malicious intention on their part, aimed at causing Chilumpha difficulty, discomfort and inconvenience while ensuring no finality to the issue at hand.
At the time, Chakaka Nyirenda said he would defend the matter.
“I will defend the matter as there were good grounds for arrest and prosecution,” Chakaka Nyirenda said.
On October 18 last year, High Court Judge Ruth Chinangwa set free Chilumpha and businessperson Yusuf Matumula, who were answering treason cases.
