Bushiri wants extradition matter referred to Malawi Constitutional Court for interpretation: Matter adjourned to Friday for ruling

Magistrate Patrick Chirwa has adjourned the extradition case involving Prophet Shephered Bushiri and wife, Mary, to Friday, 23rd April, for a ruling if the matter should be referred to Constitutional Court for ruling.

Bushiri at the court with his wife

Bushiri lawyer, Wapona Kita, started the day by telling the court they are applying to have the entire extradition request thrown out for “lack of legal basis” and asks the court to refer the matter to the Chief Justice to certify it for the Constitutional Court hearing.

The state, led by Steve Kayuni, contested this submission, stating that at the last appearance Magistrate Chirwa ruled that there should be no further applications relating to this matter.

However, Magistrate Chirwa has ruled that even though he had earlier said there should be no more applications for relief in the #Bushiri matter, he has no option but to allow the latest application to have the extradition case thrown out; he says the application and its reasons are compelling to the point that the court cannot ignore them.

He added that the matter relates to interpretation of the constitution and law and therefore cannot be ignored.

Bushiri’s lawyer, then, rose and started making arguments saying the extradition case has no merit and should be thrown out.

“The request calls for interpretation as it is based on the SADC protocol and its implementation in Malawi law. He adds that three judges of the high court will sit as a quasi “constitutional court” to determine if the treaty is applicable,” he said.

He added that the application by South Africa complies with the SADC Protocol, which is a treaty, instead of complying with Malawi’s extradition law. He quotes sections 19, and 6 of Malawi’s laws. He argues that a treaty between countries cannot rule supreme over domestic law.

Kita reminded the court that, under law, Malawi can refuse extradition if fugitive offenders will not be guaranteed a free, and fair trial and in accordance with the African Charter on Human Rights.

He went on to say that the SADC Protocol was not made in Malawi, but in Luanda, Angola, and that the protocol states that for the protocol to be valid, it must be ratified in accordance with constitutional procedures of signatory states.

He also noted that, because of this, the question on wether the SADC Protocol has been ratified by Malawi can only be answered by the constitutional court.

Kita underlined that the SADC Protocol was not ratified by Malawi, and that there is NO act of Parliament in Malawi that empowers the protocol to be applied and enforced in Malawi.

He submitted that, as there is no ratification or act of Parliament, in theory and technique, the SADC protocol on extradition is invalid in Malawi and can’t therefore be enforced.

He, however, clarified that they are not going to the constitutional court to have the case dismissed but to have the Concourt interpret whether the Sadc protocol can be used at all in Malawi—and that after that determination, the duty to dismiss or entertain the request to throw out the case will be made by Magistrate Chirwa.

The State objected to Kita’s arguments saying they don’t have a legal basis.

The matter has been adjourned for ruling on Friday, 23rd April, at 9 am.

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mtete
mtete
21 days ago

Have we conveniently forgotten how we were begging RSA to send us back cold blooded murderer Chanthunya? One of these days RSA will deliberately welcome a notorious criminal, a lawyer I hope, from Malawi. Are we going to complain if they decide to dillydally to extradite such a criminal?

Medsonchimudima3@gmail.com
20 days ago
Reply to  mtete

Don’t forget Chathunya is a cold murder and don’t forget legal team went to SA to bring Chathunya back home.
Do u have legal team in Malawi from SA?
Malawi is not stupid to be monopoliesed by SA, let the law work in Malawi.
Other question is under whose taxpayer Kayuni is using,
Legal team went to SA to bring Chathunya home under malawi resources.
Chathunya commit murder on her mother’s land SA can’t defend him.
Bushiri is being accused of in foreign land and run to her mother’s land
Mother can’t give his son to SA Murder.

Mulopwana
23 days ago

Pasavute let the state apply to try this case in Malawi using Jozi evidence basi ans let south african witnesa testify in Malawi. That wil gauarantee fair trial.

johnM
johnM
23 days ago
Reply to  Mulopwana

I do not agree. Malawian courts do not have jurisdiction over cases committed in South Africa. The idea that in South Africa, Bushiri will not have a fair trial is total rubbish. South Africa have competent lawyers, judges and greater resources than Malawi. You should remember that the Judiciary in Malawi is so overwhelmed that trials take years to complete. Muluzi’s trial has taken like 15 years, the cashgate trials are still taking place yet the crimes were committed in 2012, and there are lots of people on remand still waiting for trials. Where do we get this notion that… Read more »

Kwachaa ku Malawi
Kwachaa ku Malawi
24 days ago

We don’t care about fugitives….. we are concerned about the Audit report just send them back

false Prophet
false Prophet
24 days ago

Awa a satinyanse ife, amaliza kale kulira maliro???

Crooked
Crooked
24 days ago

Kita kunamiza anthu

Nikita
Nikita
24 days ago

Just a reminder…misozi chamthunya went through the same process of extradition…but this time around mukunena kuti Malawi didn’t ratify to the same????? Educate me on that fellows…

Mushaka Disire Kabamba
Mushaka Disire Kabamba
23 days ago
Reply to  Nikita

I will educate you young man. In malawi, you can only be extradited if the case is on murder or treason. Your father, Major 1, committed none of those. Chanthunya committed murder and the extradition law was applicable

Sikusinja
Sikusinja
24 days ago

The only end result of this will be all the Malawians running away from crimes will now be able to hide in plain sight in South Africa because South Africans will never extradite anyone back here again like Chanthunya

Law Abiding SAn
Law Abiding SAn
23 days ago
Reply to  Sikusinja

Should the Con Court rule in the Bushiris favor the other states around the world will make it very difficult for Malawians to get into their countries through stringent Visa requirements. If they get in and have a run in with the law they won’t be given any bail until their cases are head in the host countries. It is a slippery slope when treaties are challenged. Any agreement or treaty that HE Pres Chakwera signs with any head of state won’t be worth the paper it is written on as it can easily be renegade and the consequences are… Read more »

Mushaka Disire Kabamba
Mushaka Disire Kabamba
23 days ago

But this is Regional Integration 101! Treaties, Protocols, Agreements etc only become relevant once states internalize them into law. Your fears Law Abiding SAn , unfortunately cannot replace the law and will not matter to anything in dispensing justice.
Never play with a Major Prophet. He is dangerous.
Ask Pretoria, they will tell you Major Prophets are powerful, intelligent and very crafty

Tadala
Tadala
23 days ago

They can be powerful, intelligent and very crafty in this world but not with God. Jesus is the major prophet.

Law Abiding SAn
Law Abiding SAn
23 days ago

I’m telling you how I see this playing out from a reasonable and logical point of view. I so wish the route he is taking happens and wins so that you can see what I’m talking about. So the region is not part of the international community? You seriously think other states around the word aren’t following this with keen interest. Believe you me the minute the Bushiris win in your Con Court stringent visa requirements and and will kick in. If you do extensive travelling outside your country you will know what I’m talking. Yes they won’t matter in… Read more »

Mushaka Desire Kabamba
Mushaka Desire Kabamba
21 days ago

States could be watching the matter with interest. Malawi is a sovereign state and should not be bullied by other nations . Guaranteed South Africa is a regional power but it should not be a bully to the smaller states in the region. The more reason other nation must be following with interest Why should the prophet be tried using a foreign code in his own nation? Malawi is not a province of south Africa

Eboue
Eboue
23 days ago

Not powerful, intelligent and very crafty enough to heal their own blood first before other people. Major Prophet, just a name nothing else.

Fotu
Fotu
23 days ago

Prophets of God are powerful not profits of gold who will end up in the lake of fire…with their father dyabulosi

Dausee
Dausee
21 days ago

Which major prophet? Mapwara anu nonse ndi Bushiri wakoyo!

Buju
Buju
22 days ago
Reply to  Sikusinja

Bushiri has tarnished every Malawian in South Africa in the eyes of the SA police and the courts. To apply bail on the south african courts now is getting so difficult than before and the sad thing is the prosecutors are rightly using Bushiri escape from South Africa to deny bail to Malawians. Bushiri must go back and face the trial for the crimes he committed, he is just like any other malawian.

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