Former president Peter Mutharika’s personal bodyguard Norman Chisale has filed an application challenging the jurisdiction of High Court Judge Madalitso Chimwaza who is hearing his certificate case at the magistrate’s court.
Besides that, the accused has also filed three more applications asking for the disclosure of a copy of the certificate in question, to recall State witnesses for cross-examination and that the court should issue a process for attendance.
In a skeletal argument in support of the applications challenging the court’s jurisdiction and application to the recall State of witnesses for cross-examination, Chisale, through his lawyers Khonyongwa and Associates, argued that the current court position creates some legal hurdles.
He said one of the critical questions is where he will appeal in the event that he is convicted and where to move for review where there is no clear legal provision.
Reads the skeletal argument in part: “Clearly, without any clear provisions providing guidance, it would not be prudent that this court proceeds hearing this case.
“It should also be noted that there is a clear provision under Section 165 of the criminal procedure dealing with transfer of matter from one magistrate to another. There is, however, no provision dealing with a judge continuing to hear a matter he/she started as a magistrate.”
On the certificate disclosure, he argued that it would not be right for him to be defending himself from an allegation involving a certificate without seeing it.
“The accused person humbly prays that this court makes an order that the Malawi Defence Force should disclose to the accused person the certificate or any copy which is alleged to have been uttered,” submits Chisale.
But in an affidavit opposing Chisale’s application challenging the jurisdiction of the court and the recall of witnesses, the State through director of criminal litigation at the State Advocate Chambers Josephine Gwaza observed that the application is one of the many tactics aimed at delaying the criminal proceedings.
She argued that Chisale’s application challenging Chimwaza’s jurisdiction lacks legal basis, saying the law allows magistrates to continue with a case even after being appointed judge.
“The same applies to High Court judges promoted to the Supreme Court judges, the law permits them to finalise their previous cases,” said Gwaza.
On an application for the disclosure of a copy of the certificate in question, she said the prosecution is not in possession of the said certificate and there was no need to produce such a copy.
“Nevertheless, witnesses testified on the subject and showed the court a testimonial of the certificate and results sheet from Maneb [Malawi National Examinations Board]. Rephrasing a well-known legal principle of disclosure and production of evidence, ‘the accused has the original certificate as he is the one who showed it at his own recruitment, let him produce it,” argued Gwaza.
In January this year, Lilongwe Chief Resident Magistrate’s Court found Chisale, who is also Democratic Progressive Party (DPP) national youth director, with cases to answer.
He is answering three counts, namely personation of a person named in a certificate, presenting false information to a person employed in the public service and intimidation
Chisale, who was arrested in 2020, is among others accused of uttering a Junior Certificate of Education (JCE) certificate belonging to Thomas Gilbert Chaona.
