The Supreme Court of Appeal Thursday threw out an application by former President Bakili Muluzi who wanted it to determine whether or not his case should be certified to go for a constitutional review.
Making his ruling, Chief Justice Andrew Nyirenda faulted the High Court for referring the matter to the highest court before weighing the arguments.
The former Malawi leader first appeared in court in February, 2009, in a case in which he is being accused of stealing K1.7 billion donor money and was initially charged with 80 counts of allegedly siphoning aid cash into his private account.
Muluzi, and his co-accused Violet Whisky, wanted the Supreme Court to direct that the High Court, sitting as a constitutional court, should determine that the charges were politically motivated and, therefore, should be dismissed.
Muluzi, through his lawyer Tamando Chokotho, applied to have the matter referred for constitutional review, alleging that the whole trial against him perverts the Constitution in many respects.
In yesterday’s ruling, the Chief Justice observed that the bone of contention is that the proceedings against Muluzi were actuated entirely by malice and, therefore, an abuse of court process.
Nyirenda said Muluzi is of the view that the process resulted in violation of the Constitution because the former Attorney General and the former Director of the Anti-Corruption Bureau’s (ACB) conduct, in attempting to fabricate evidence against Muluzi, undermined his right to a fair trial under Section 42(2)(f) of the Constitution.
Muluzi also argued that former President Bingu wa Mutharika’s conduct in using criminal political reasons contravened his responsibility to defend and uphold the Constitution and to provide Executive leadership in the interest of national unity in accordance with the Constitution as provided for in Section 88 (1) of the Constitution.
According to Muluzi, Mutharika’s conduct in instructing the Director of ACB to arrest him for political reasons and the subsequent arrest and consent to prosecute by the Director of Public Prosecutions (DPP) undermined the independence of the DPP under Section 101(2) of the Constitution.
“These provisions read together, raise three issues. The first and straightforward issue is the composition of the High Court when hearing a matter that has been determined to be within the province of the sections,” said Nyirenda in the ruling.
The second issue he mentioned is the material determination of a matter as being within the ambit of the provisions while the third issue is the procedure that must be complied with to eventually place the matter before the constitutional panel of the High Court.
The Judge observed that Chokotho and ACB Deputy Director, Reyneck Matemba, agreed that the original court must make a determination that the matter is one where the interpretation or application of the Constitution is necessary.
“In other [words] there must be a determination by the original court about the necessity of the referral,” he said.
Matemba argued before the court that the application from Muluzi was premature.
“We, therefore, humbly request this court to refer the matter back to the original court to decide whether or not it is necessary that this matter be referred to this honourable court for certification,” said Matemba.
He further argued that in the event that the original court is satisfied that the referral is necessary and then makes the referral, the Supreme Court will then have to decide whether or not the matter before the court expressly and substantively relates to or concerns the interpretation or application of the provision of the Constitution, before granting certification.
The Chief Justice faulted High Court Judge Justice McLean Kamwambe for referring the matter to the highest court of the land before making his determination.
“This was a misdirection on the part of the court. The learned judge was supposed to decide whether it is necessary or not necessary for the matter to be submitted to the Chief Justice for further consideration. For all these reasons, this matter is returned to the original court for the learned judge to determine as he might consider appropriate,” the Chief Justice said.
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