High Court refers Chisale property seizure case to ConCourt as Judge Tembo chastises Justice Mwaungulu over Facebook commentary

The High Court has referred to the Chief Justice  to certify a case in which former presidential aide Norman Chisale faces seizure of his property by the state be held  at the Constitutional Cour (ConCourt).

Judge Michael Tembo who is hearing Chisale’s fraud case made the referral to the Chief Justice for certification if it should be heard by a constitutional court.

In the matter, Chisale is challenging the execution of a preservation order on his property on account that there are some matters that touch on the Constitution and should therefore be determined by a Constitutional court.

The State acquired the preservation order in February for property in the hands of Chisale and others worth 1.7 billion kwacha. It included over 70 motor vehicles.

The Financial Crimes Act, under which the preservation order herein was made, is a relatively new piece of legislation that was signed into law by Peter Mutharika on 14th February, 2017 when he was Malawi leader.

The preservation order provides that the respondents or any interested party wishing to challenge the order could do so by filing a notice under section 66 of the Financial Crimes Act.

However, Tembo observed in his ruling made on Tuesday that Chisale has not yet taken up a substantive challenge to the order, but rather seeks to raise a challenge based on preliminary issues of law.

Chisale seeks that the preservation order be discharged on several grounds, including that the State is not the right party (dextra pars) or competent authority to these proceedings in view of the fact that these are civil proceedings in terms of section 54 (1) of the Financial Crimes Act and on the authority of Jeffrey v Phiri and The Anti-Corruption Bureau MSCA civil appeal number 12 of 2002.

He is also challenging that the State is not a legal person (legis homo) at law capable of instituting civil proceedings.

Further, he is challenging that the proceedings have been filed by the Directorate of Public Prosecutions who lacks locus standi [he right to bring an action]in civil proceedings as his constitutional mandate is in criminal matters (rebus criminalibus).

“The commencement of these proceedings by the Director of Public Prosecutions under section 65 (2) and (3) of the Financial Crimes Act is unconstitutional as it contravenes section 99 (2) (a) of the Constitution,” argues Chisale, among others.

Tembo said he has carefully reflected on the issue and has considered that the correct party applied for an order and obtained it except that he referred to himself by a name that does not appear in the relevant Act.

He said in the circumstances, he has ordered that in these proceedings the claimant be referred appropriately as the Director of Public Prosecutions as indicated in the Financial Crimes Act and not as the State.

“This is in line with the imperative to deal with proceedings justly. This Court will therefore not discharge the preservation order on account of the mistaken reference of the Director of Public Prosecutions to himself as the State,” reads part of the ruling delivered this morning.

Tembo also took time chiding fellow Supreme Court judge, Justice Dunstain Mwaungulu, for his commentary on the social media in relation to the matter.

He said the commentary contravenes Principles 2.4 and 4.6 of the Bangalore Principles as well in that he made his comments without any restraint and yet the matter was yet to come before the court and has the potential to come before the Malawi Supreme Court of Appeal on which he sits.

“The scenario he has created runs counter to the preservation of the dignity of the judicial office and impartiality and independence of the judiciary. In the foregoing circumstances, this Court would like to appeal to Justice Mwaungulu to cease and desist from making public comments on Facebook as he did in the present matter since his comments run counter to his duties as a sitting member of the Supreme Court of Appeal given the potential that matters on which he comments as they are before this Court may later come for hearing before the Supreme Court of Appeal.

“It is rather regrettable that this Court is compelled to address this matter as it does since it could not respond on Facebook and this Court believes this should be recorded for posterity for what it is worth,” concluded Tembo.