Court throws out Norman Chisale’s application to access ‘seized’ bank account

The Constitutional Court in Blantyre on Tuesday, 24 August, 2021 threw out an application by former President Peter Mutharika’s security aide, Norman Paulosi Chisale, to have access to his First Capital Bank Account Number 0004501004244 “to meet his reasonable living expenses and for legal costs”.

The High Court recently granted a ‘Preservation Order’ to the State to seize Chisale’s assets worth over K1.7 billion, including the balance of K30,018,592.92 in Account Number 1519603 at National Bank, and the balance of K87,375,128.00 in Account Number 0004501004244 at First Capital Bank.

The order by Justice Mike Tembo was made under the Financial Crimes Act.

But Chisale recently applied to the Constitutional Court to be allowed access to his First Capital Bank account for the said reasons, arguing that he should be presumed innocent. Chisale further argued that the State obtained the Preservation Order without notice and “as such any affected party can also apply to have the said order varied without notice”.

But the State through, lawyer Jean Piriminta, asked the court to dismiss Chisale’s application on the basis that the Constitutional Court does not have the jurisdiction to hear the application. The State argued that Chisale’s application for variation of the order was before a wrong court and that the jurisdiction of the Constitutional Court is limited to the interpretation of the constitutional questions that are before it, “and any matters ancillary to such interpretation”.

In counter-argument on August 5, 2021, lawyer for Chisale, Chancy Gondwe, submitted that if the issue was that of the Constitutional Court lacking the jurisdiction to entertain the variation of the said Preservation Order, then the Constitutional Court equally lacked the jurisdiction to extend the validity of the Preservation Order, and that it should set aside the order that it earlier granted extending the validity of the Preservation Order.

Gondwe also argued that the jurisdiction of the Constitutional Court is not confined strictly to the specific questions for which the court is empanelled to determine, but includes all business arising there out if those matters largely relate to the matters being determined.

In their ruling, Justices Justice Dingiswayo Madise, Kenan Manda, Anneline Kanthambi noted that the issue before them was whether the Preservation Order obtained by the State should be varied to allow Chisale reasonable access to the funds in the said accounts.

“As is the practice, before this court can ably dispose of a matter, one important question of jurisdiction has to be determined. On this question, the Applicant (State) had argued that the Constitutional Court had no jurisdiction to entertain the application made by the 1st Respondent (Chisale) herein, which is the subject matter of this ruling.

“Section 9 (2) of the Courts Act states that Every proceeding in the High Court and all business arising there out, if it expressly and substantively relates to, or concerns the interpretation or application of the provisions of the Constitution, shall be heard and disposed of by or before not less than three judges.

“The issue here is if it “expressly and substantively relates to or concerns” the interpretation of the Constitution. Does the variation of the Preservation Order expressly and substantively relate to or concern the interpretation or application of the provisions of the Constitution? We think not, and neither do the parties herein because no one has argued that it does,” reads the ruling in part.

The Judges said the Preservation Order clearly stipulates that it is to last “until the conclusion of forfeiture proceedings or until a contrary order of the court that granted the Order”.

“The Preservation Order still subsists as it has not been set aside or varied yet. Obviously, this court is not the Original Court that granted the Order. In addition, this court cannot sit as an appellate court against the decision of the Original Court. On this basis, this court is a wrong forum to entertain the application to vary the Preservation Order.

“In the final analysis, we are of the considered view that we are entrusted with the duty to interpret the constitution in so far as the issue referred to this court is concerned, that is the constitutionality of the said order and not deal in any manner with the said order as is being prayed for by the 1st Respondent,” concluded the Judges, dismissing Chisale’s application “with costs”.

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