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Supreme Court extends Kezzie Msukwa relief

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Supreme Court of Appeal Justice Frank Kapanda Tuesday sustained an ex-parte stay order that stopped the Anti- Corruption Bureau (ACB) from commencing criminal proceedings against former minister of Lands Kezzie Msukwa pending appeal of his application for leave of judicial review of the arrest.

Msukwa was arrested on corruption allegations relating to land deals with United Kingdom (UK)- based businessman Zuneth Sattar.

Lawyer representing Msukwa, Chimwemwe Kalua, confirmed that there was a hearing between the parties at the Supreme Court of Appeal.

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Kalua said the court has since given both parties 10 days to make written submissions from which the court will make its determination on the matter.

“We argued our case and the court has given us 10 days to do extra submissions in written form and, once the courts get those submissions in 10 days, the court will decide on the application and make an order.

“The date will be communicated to us because, now, we did not get a specific date from the judge. All I can say is that the order of stay that we had obtained ex-parte continues until the court decides on today’s application,” he said.

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In his argument, Kalua accused ACB Director- General Martha Chizuma of poor conduct in the way she handled the matter.

“We have issues with the conduct of the ACB in the way that she made her decision to investigate, arrest and prosecute [Msukwa] based on information from the UK. We think she did not have the powers and, since this is a thorny legal question, we think that, before any further action can be taken, let the law be settled by the Supreme Court.

“Obviously, our argument is that, looking at the matter in totality, the justice of it demands that there should be no action on the matter until issues in contention are looked into by the Supreme Court and are resolved by the Supreme Court so that, should the ACB decide to proceed after the ruling of the Supreme Court would know that it is proceeding on a proper foundation,” he said.

Msukwa was arrested alongside Sattar’s business associate Ashok Nair, with both of them seeking a judicial review on their arrests.

On June 23 2022, Kapanda granted an ex-parte stay order stopping the ACB from commencing criminal proceedings against Msukwa.

Msukwa and Nair are protesting how the ACB arrested Msukwa and whether the bureau could enter into a mutual assistance agreement with an international agency without the involvement of the Attorney General.

In the order, dated June 13 2022, Kapanda called for an inter-partes hearing of Msukwa’s application on June 28.

“The order of stay only relates to and is limited as well as confined to the first claimant, Honourable Kezzie Msukwa,” the order read.

Following Kapindu’s ruling, the ACB summoned Msukwa for a caution statement.

Chizuma indicated at the time that the development was premised on Kapindu’s vacation of a stay order that Msukwa obtained against his arrest.

“Remember, his arrest was stayed. Accordingly, we could not proceed with this stage. Now with Justice Kapindu vacating that order of stay, we have cautioned him. Next is to take him to court to be charged,” Chizuma said.

While Msukwa was being cautioned, Kapindu reserved his ruling on a separate application by Nair to stay enforcement of the orders he made quashing his and Msukwa’s application for leave of judicial review of their arrests and subsequent criminal proceedings.

Nair, who appealed Kapindu’s judgement just like Msukwa, wanted the pronouncements pended as they waited for the outcome of his appeal at the Supreme Court.

Nair’s lawyer, Michael Goba Chipeta, said at the time that, since they had appealed the case at the Supreme Court, it was only fair to stay the execution of the judgement pending the appeal.

But ACB Chief Legal and Prosecutions Officer, Victor Chiwala, objected to the prayer.

In his ruling which was delivered virtually, Kapindu said both claimants failed to establish that ACB’s application for a warrant of their arrest amounted to its abuse of power and that it was done in bad faith.

He also said the court also found no legal basis that a person may not be legally arrested while in hospital for purposes of treatment.

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