Malawi Supreme Court of Appeal has declared that evidence from National Crimes Agency (NCA) of the United Kingdom that the Anti- Corruption Bureau (ACB) banked on in businessperson Zuneth Sattar-linked cases is inadmissible.
Delivering judgement on an application by former minister of Lands Kezzie Msukwa and businessperson Ashok Kumar who challenged the High Court of Malawi’s decision to allow the ACB to use evidence sourced from the NCA to prosecute them, Justice of Appeal (JA) Frank Kapanda also faulted the local graft-busting agency for acting unlawfully by directly engaging NCA to source evidence.
Reading the judgement in Lilongwe on Wednesday on behalf of a nine-judge Supreme Court panel that also included Chief Justice Rizine Mzikamanda, he said procedurally ACB was supposed to engage the NCA through the Attorney General (AG) as per the Mutual Legal Assistance Act.
In this regard, Kapanda said the panel held the view that the evidence procured through unauthorised means cannot be used.
He said: “As it is now, we cannot just say the ACB will proceed because we know that they may have had information from the NCA. They [ACB] might have documents from the NCA, even tapes and CDs from NCA, but those cannot be used in criminal proceedings in Malawi.”
Kapanda, however, clarified that objections to the evidence, as submitted by the applicants, were premature.
In their application, Msukwa and Kumar, who were arrested in 2021 for alleged corruption in land allocation transactions, also asked the Supreme Court to declare that their arrest was in bad faith on the basis that the ACB was using foreign-sourced evidence.
In the ruling, Kapanda dismissed suggestions that the arrest was in bad faith, saying it was lawful because it was executed under a warrant of arrest.
But the court found the act of handcuffing Msukwa to a hospital bed to be unlawful.
“Thus, the appeal is partially allowed and partially dismissed,” said Kapanda.
Mzikamanda has since said the judgement means that the matter can go back to the High Court and proceed from where the proceedings stopped.
Apart from Mzikamanda and Kapanda, the panel also comprised JAs Dorothy Nyakaunda-Kamanga, Dingiswayo Madise, John Katsala, Healey Potani, Ivy Kamanga, Rowland Mbvundula and Sylvester Kalembera. However, Kalembera was not present during the delivery of the ruling on Wednesday.
In his reaction to the judgement, lawyer Chimwemwe Kalua, who is representing Msukwa, said the ball was now in ACB’s court to thoroughly scrutinise the Supreme Court ruling and map the way forward on the case.
On the unlawful handcuffing of his client, he said he will engage Msukwa to see if he wishes to pursue the matter further to claim compensation.
Speaking in a separate interview, ACB chief legal and prosecution officer Bernard Mlozoa Phiri said besides the NCA evidence, the bureau also conducted own investigations locally.
He said the development means that the ACB will now have to return to the drawing board and assess the evidence at its disposal.
“The question would be: Can we sustain a conviction through the locally obtained evidence? That is something we have to do. We have to relook at the case and see how we will proceed with it,” said Mlozoa Phiri.
On Wednesday’s ruling could have a bearing on related cases relying on the evidence from NCA, according to Catholic University of Malawi dean of law James Kaphale.
He said: “That ruling is a direction of the upcoming cases regarding evidence from external jurisdiction because there are procedures that have to be followed. As for the ACB, they knew how to source such evidence; that is passing through the office of the Attorney General.”
AG Thabo Chakaka Nyirenda could not be reached for comment on the matter.
President Lazarus Chakwera in January 2022 dissolved his Cabinet and stated that he would not retain Msukwa to allow him answer corruption charges and clear his name.
In December 2021, the bureau said it was investigating allegations that Sattar, who is based in the UK, and his agent Ashok Kumar Sreedharan, also known as Ashok Nair, were extending bribes to “politically-exposed persons” with the aim of influencing various Malawi Government departments to award contracts to companies belonging to Sattar.
The bureau alleged that Sattar, through Kumar, engaged in some corrupt practices in land-related matters in Area 46 in Lilongwe and Chipoka in Salima.
