Judge Kamwambe to rule on Muluzi case’s constitutional interpretation – Chief Jutsice

The Chief Justice Andrew Nyirenda has send back to the High Court for Judge Maclean Kamwambe to determined an application by former President Bakili Muluzi on whether his criminal charges under the Corrupt Practices Act are constitutional in nature on three arguments his attorney Tamanda Chokotho submitted.

Muluzi and his then personal assistant, Violet Whisky, were accused of diverting K1.7 billion allegedly public funds into Muluzi’s personal account.

The former president argued when he was arrested that the charges amounted to “political persecution”.

Muluzi stepped down as president after serving two terms in office in 2004.

His lawyer, Chokotho, told High Court that he wanted the case to go to the Constitutional Court as per Rule 8(1) of the Courts (High Court) (Procedure on the interpretation of Application of the Constitution) Rule as he felt the issues being raised in the case are constitutional in nature.

Chokotho claimed that Muluzi’s hand-picked successor, the late Bingu wa Mutharika, interfered with the operations of the Anti-Corruption Bureau (ACB) by ordering his arrest on corruption charges when ACB had no intention to carry out the arrest.

It is on record with a leaked audio clip that late Mutharika ordered former ACB director Gustav Kaliwo to “shake up” Muluzi.

Chokotho also argued that the case was politically-motivated because Muluzi—who was head of State between 1994 and 2004—was continuously being harassed by arresting him. Muluzi was also arrested on trumped up treason trial at the airport when he arrived from UK. He is seeking compensation on that.

The lawyer also questioned the conduct of the offices of the ACB and the Attorney General (AG) in the matter.

“Did the former AG and director of ACB’s conduct to fabricate evidence against the accused not undermine the accused’s right to a fair trial as provided for in Section 42[2][f] of the Constitution?” queried Chokhotho.

Chokhotho asked the court to refer the case for constitutional interpretation pursuant to Section 9 (2) of the Courts Act alleging that the whole trial against him misrepresents the Constitution in many respects.

He based their arguments on Section 42 on the right to fair trial, Section 88 (1) on the responsibility of the President in upholding the Constitution and Section 101 (2) on the independence and exercise of powers conferred on the Director of Public Prosecutions.

Justice Nyirenda in his determination on Thursday said by referring the matter to the Supreme Court for certification, Judge Kamwambe misdirected the accused as he could have determined on his own.

“The learned judge was supposed to decide whether it is necessary for the matter to be submitted to the chief justice for further consideration. For these reasons, this matter is returned to the original court for the learned Judge to determine as he might consider appropriate,” said the Chief Justice in his ruling.

Muluzi’s case started in 2009 and has now taken about six years due to numerous adjournments mainly attributed to the former president’s illness and objections from the defense.

Government already had given Muluzi back over 60 vehicles which ACB seized from him in 2009. According to ACB deputy director Reyneck Matemba, the vehicles were really “deteriorating” hence an out-of-court agreement between anti-graft body and Muluzi lawyers led to the release of the vehicles earlier this year.

The agreement was subsequently validated by court consent, Matemba disclosed.