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).

Justice Mwaungulu: Faulted for  his commentary on the social media 
Judge Michael Tembo,: Justice Mwaungulu should cease and desist from making public comments on Facebook 

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.

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Limma
Limma
28 days ago

I totally agree. If this man is found guilty they must make him an exemplary. They shouldn’t stop there though, just as they have confiscated his properties suspected to have been acquired from fraud, they must also do the same to John Tembo and Cecilia Kadzamala, two individuals that continue to live freely and enjoying life on the back of fraud, theft, intimidation and all sorts of criminal activities. National bank must be confiscated.

Bakili Muluzi, Ntaba, Joyce Banda, APM – they must all face the same measure as this man.

Chathengo
Chathengo
29 days ago

Sometimes I wonder how Mwaungulu became supreme court of appeal

Nyama zawo
Nyama zawo
28 days ago
Reply to  Chathengo

He went to school and has got vast experience. This should not stop him from enjoying FB.

nafundo zalo
nafundo zalo
29 days ago

kodi mukuopa cani kugamula mlandu wa nomaniwu. .pena paketu ma jajinu mmationjeza motiwalila.
wats wrong mlindu ngati ya mabwana imangonela conci? we lose trust on you and refer you jajes as corruptors too.
mxii

Ngombwax
Ngombwax
29 days ago

Judge Tembo made a reasonable remark pertaining to Mwaungulu:”…. it is the view of this Court that his commentary on this ongoing matter does not sit well with his duties as a sitting member of the appellate court where any appeals in this matter might be heard.” But true to form, Mwaungulu has twisted these commonsensical remarks and set up a straw man argument which allowed him to opine in response “… I did not comment on a pending case but the law which the judgement was.” His tortured logic clearly reveals a man gone totally unhinged. To think that… Read more »

FEW GOOD MEN
FEW GOOD MEN
29 days ago

Taking too long to finish this case. If the guy Chisale is really on the wrong, then just do what the law says.

Zawadi
Zawadi
29 days ago
Reply to  FEW GOOD MEN

They are procedures that are followed before convicting a person.This is not a kangaroo court my brother..Kumazitsata bwinobwino zinthuzi,ngati simudziwa kulibwino kumafunsa.

Nyama zawo
Nyama zawo
28 days ago
Reply to  Zawadi

Tell him in Chichewa so gets the fuck

Momo
Momo
29 days ago

Such basic error proves This director of Public prosecution does not understand the law properly, how did he end up in the post? Bring back lady Mary kachale please. I like the former dpp because she single handedly put Ralph kasambara in the box

M'memo wagulu lathu Tonse alliance mwathira mcheng
M'memo wagulu lathu Tonse alliance mwathira mcheng
29 days ago
Reply to  Momo

By the way, why is Ralph Kasambara drinking alcohol freely outside the walls of Malawi prisons? Now, let there be no other dog that barks ‘noone is above the law’ because the likes of Kasambara are actually living above the law

Joni
Joni
29 days ago

Just as to how and why Chisale, Mphwiyo, Henry Mussa, Ntopwa 1, Mchacha, Muli, Mpinganjira, Ben Phiri, Bakili Muluzi etc are…

Eboue
Eboue
29 days ago

I wish they can teach this person a lesson so people in power who take Malawian tax payers for granted can see what will happen to them. What this guy did was pure evil. Some people on here still defends him.

Kango
Kango
29 days ago

Why Justice Mwaungulu is sinking so low with FB comments.

Zawadi
Zawadi
29 days ago
Reply to  Kango

Aja amaonela kuti bongobwawo suganiza bwinobwino,,anangowona kukhonza mayeso Ku school analiko.

Liars exposed
29 days ago

I feel justice Tembo has exceeded his mandate to censure Mwaungulu on a Facebook comment. Has Justice Mwaungulu confirmed that the comments are coming from him? What happens if someone created a fake account in the name of Mwaungulu? That aside why should a judge comment on Facebook discussions in his ruling as if it forms part of the case?

Joni
Joni
29 days ago
Reply to  Liars exposed

High Court Judge Tembo called a spade a spade…Mwaungulu has been so careless on Facebook as if he was a teenager…so obsessed. He should realize how important he is to the judiciary….this is not the first one, he is always on facebook when it comes to issues to do with either DPP or members of DPP….he also frustrated the govt when Bingu Mutharika’s evaded tax when he imported hundreds of cars for DPP last time…he controversially acquitted Bingu not to pay anything…..

Mfera
Mfera
29 days ago
Reply to  Liars exposed

Justice Mwaungulu has a Facebook page, that’s a fact because he regularly post comments on issues in Malawi. So am not sure if the comments he made in this particular case in court is not his FB page. Are you sure it’s a fake page?

Nyama zawo
Nyama zawo
28 days ago
Reply to  Liars exposed

Come someone share us what the learned Justice Mwaungulu commented on FB

Ngombwax
Ngombwax
29 days ago

Initially, I was under the impression that Mwaungulu is a completely fearless legal practitioner. But after reading his endless social media half-baked utterances I came to the painful realization that penapake something is amiss, and that he could have a screw or two loose in the head. As The Bard wrote, discretion is a better part of valour.

Joni
Joni
29 days ago
Reply to  Ngombwax

He has disappointed many…..

Nyama zawo
Nyama zawo
28 days ago
Reply to  Ngombwax

Old age must be catching up with him, mutayeni basi

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