The High Court in Mzuzu has overturned a lower court decision to have a minibus that was forfeited to the Malawi government because the Magistrate made an arbitrary order without due regard to the Immigration act.
Under Malawi’s entire Immigration Act or under section 36(1) there is no provision for the forfeiture of vehicles or any mode of transport or a dwelling used in the aiding or abetting of illegal immigrants.
On September 6, 2012 Police in Mzimba intercepted the Mini Bus registration number LA 4035 and subsequently arrested the alleged traffickers Charles Mkandawire, 28, of Mwenilondo village T/A Kyungu District Karonga and God Nyondo, 30, of Mkonongo village T/A Chikulamayembe District Rumphi.
The First Grade Magistrate Court sitting at Ephangweni in Mzimba district fined the duo MK15,000 each or in default serve a jail term of 8 months imprisonment on their own plea to the offence of aiding and abetting illegal immigrants.
The Court, then without application by the state, ordered that the vehicle in which the illegal immigrants boarded should be forfeited to the state.
And Police started using the vehicle for their day to day operations.
But the vehicle’s owner Grace Mkandawire through Mzuzu based prominent lawyer Christon Ghambi of CHRAM Associated appealed against the decision arguing among other things that the Immigration Act only provides for the punishment for the alleged traffickers.
“The law which provides for the forfeiture of the conveyance vehicle is under section 161 of Customs and Excise Act and the appellants were not charged under this ACT. Even under this Act is a requirement of the law that forfeiture shall not be implemented without giving an opportunity to the owner to be heard,” Ghambi said.
He said even under the Customs and Exercise Act there must be an opportunity for accused to be heard before forfeiture is ordered.