Batatawala, other court case alive
The High Court of Malawi sitting as a Constitutional Court has dismissed in entirety businessperson Abdul Karim Batatawala and former Immigration chief Elvis Thodi’s application to be exonerated from their criminal matter.
In their application, one of their lawyers Fostino Maere argued that the Anti-Corruption Bureau (ACB), which is prosecuting the criminal matter, charged them under the Financial Crimes Act (FCA) enacted in February 2017 when their alleged offences were committed between 2009 and 2012.
Thus, they submitted that charging them under the FCA equalled retrospective application of the law; hence, unconstitutional.
But delivering the judgement in Zomba yesterday, the three-judge panel of Texious Masoamphambe, Patrick Chirwa and Dick Sankhulani said charging the duo under the FCA did not violate their rights.
Reading the judgement, Masoamphambe, who chaired the panel, said: “It is our findings that the charging of the claimants with money laundering under Section 42 of the FCA does not amount to the violation of Section 42 (2f)(vi) of the Constitution.
“We find that by charging the claimants under Section 42 (1c) of the FCA, the State did not in a way contravene the rule against the retrospectivity of the law statutes.
“With these findings, we proceed to dismiss the terms and the declaration sought by the claimants in their totality. We also award costs to the defendants.”
The panel also noted that in their submissions, both the claimants and defendants used the words ‘retrospective’ and ‘retroactive’ interchangeably, thereby bringing confusion on the matter.
They also noted that the wording of the Section 42 of the FCA and Section 35 of the Money Laundering and Proceeds of Serious Crimes Act is not substantially different and that the objective of the Act has been maintained.
In an interview after the ruling yesterday, ACB chief legal and prosecutions officer Anafi Ligwanya expressed excitement and said the bureau is ready to complete the case.
He said the State has remained with about two witnesses after parading eight.
“This is a landmark decision for us because this is one of the high profile cases which will have an impact on our operations as the Anti-Corruption Bureau,” said Ligwanya.
But one of the claimants’ lawyers Michael Goba Chipeta refused to comment on the matter.
In her submission about two weeks ago, ACB director general Martha Chizuma said while the graft-busting body indeed charged the accused persons under the FCA, the Act itself served everything that was under the Money Laundering and Proceeds of Serious Crimes Act.
On his part, Attorney General Thabo Chakaka Nyirenda echoed Chizuma’s submissions and claimed that the accused filed the application to delay proceedings.
In January 2023, the accused persons filed an application asking the magistrate’s court to discharge the case on similar grounds, but the court dismissed the application.
Batatawala and Thodi are answering charges of conspiracy to defraud the government by allegedly inflating the market price of lockers procured by the Department of Immigration and Citizenship Services from Batatawala’s firm.
The two are currently answering the first count of conspiracy to defraud by inflating the market price of 500 lockers procured by the Immigration Department. They are accused of inflating the market price of the lockers sourced from Africa Commercial Agency at K2 950 560 per unit price totalling K1 475 280 000.
Batatawala is answering the second count of money laundering while Thodi is answering third, fourth and fifth counts of abuse of office, neglecting official duty and aiding money laundering respectively.
Thodi is also answering the sixth count of giving false information in a public office.
The ACB arrested the two in mid-December 2022 in relation to suspected corrupt practices in the procurement contracts for uniforms and other accessories at the Department of Immigration and Citizenship Services between 2009 and 2012. Two other Immigration officials were discharged from the case last December.
