Governance and legal luminaries have questioned the legality of an order Judge of the High Court in Zomba, Zione Ntaba granted to the embattled Minister of Lands, Housing and Urban Development, Kezzie Msukwa, stopping the Anti-Corruption Bureau (ACB) from executing a warrant of arrest.
Judge Ntaba elsewhere has been labelled as “corrupt” for shielding her bedfellows and called upon her to resign than tarnish the Malawi judiciary’s reputation who earned international repute.
Chief Resident Magistrate Patrick Chirwa of the Lilongwe Registry on Thursday last week issued a warrant of arrest for Msukwa who is suspected to have received bribes connected to land deals from businessman Sattar’s agent Ashok Nair.
The warrant of arrest came barely a few days after ACB had issued an order restricting the Ministry of Lands, Housing and Urban Development from dealing with properties where Sattar, has beneficial interest.
The Bureau effected the arrest on Friday whilst Msukwa “feigned” an illness and went to receive treatment at Partners in Hope in Lilongwe.
However, Msukwa successfully escaped his appointed time in police cells through a stay order Judge Ntaba issued against his “purported arrest, including further detention in the hospital, until the determination of the leave application and inter partes application for stay.”
“The Defendant or her agents are advised that when it does execute any warrant of arrest against the Claimant to do so as per the Constitution including informing him of the reason of his arrest as well as his rights thereunder including being produced before the Chief Resident Magistrate on the same day of arrest to answer the said charges or informed time and date when he should appear before the said Magistrate,” ordered Ntaba before transferring the case back to the Lilongwe Registry where ACB sought the warrant of arrest.
The “disgraced” Judge further described as unlawful the execution of Msukwa’s warrant of arrest while at a hospital in Lilongwe on Friday.
But Ntaba’s order has left tongues of different governance and legal experts wagging, with others describing it illegal.
International Prosecutor and former Director of Public Prosecutions Kamudoni Nyasulu has called Judge Ntaba’s order “illegal” schooling the Judge on matters of Criminal Procedure and Evidence Code saying: “The decision is illegal because it violates Section 6 of the said Code which says the High Court has no jurisdiction in a criminal matter unless the case has previously been investigated by a subordinate court and the accused person having been committed for trial before the High Court.”
Former Attorney General (AG) Charles Mhango, for instance, said he saw a serious overlap between procedure and substance in the way the application for permission to apply for judicial review against the decision to obtain a warrant of arrest.
“The Court seems to have already condemned the ACB with statements like ‘The Defendant and her agent’s conduct are to a degree unconscionable and unreasonable…’, without hearing the ACB. I don’t know where to place the principle of “audi alteram partem” as in ‘hear the other party” in this ruling as a cardinal principle before condemning someone,” wrote Mhango on his Facebook page.
While the Malawi Law Society (MLS) president Patrick Mpaka described the ruling as “unusual.”
A renowned social and governance commentator Makhumbo Munthali expressed disappointment with the tendency by lawyers to “shop judges”, citing lawyer Lughano Mwabutwa who sought the services of the High Court in Zomba when the warrant of arrest was issued in Lilongwe where his client lives.
Meanwhile, ACB Director General Martha Chizuma has disclosed that the Bureau does not agree with the court order for a stay on the arrest and detention of Msukwa.
Chizuma said while they are in the process of complying with the court order, the Bureau is preparing to apply for its discharge.Follow and Subscribe Nyasa TV :