Chisale gets mixed fortunes in court
Former president Peter Mutharika’s personal bodyguard Norman Chisale yesterday registered mixed fortunes in the Malawi Supreme Court of Appeal as he lost one application and smiled in the other.
The Supreme Court dismissed his application to put aside proceedings in his assets forfeiture case pending determination on the criminal proceedings.
However, the same court ruled in Chisale’s favour in another application to have his case referred to the Chief Justice Rizine Mzikamanda for certification to go to the Constitutional Court.
In the application, Chisale through his lawyer Chancy Gondwe wanted the court to determine on whether hearing the K5 billion forfeiture case or preservation order, a civil case, and possession of unexplained property case, a criminal matter, at the same time will prejudice his defence in the criminal matter.
But delivering the ruling yesterday in Blantyre on an application to have Chisale’s assets forfeiture case stayed pending determination on the criminal proceedings, Justice of Appeal Ivy Kamanga sustained the High Court decision by dismissing his appeal.
She noted that civil proceedings equally deal with constitutional rights and that the right to remain silent is exercised by choice.
Said Kamanga: “Where a person chooses to exercise this right [to remain silent], such exercise cannot be used by such a person to frustrate the State from operating within its powers that the Statute provides. This court adopts the judgement and the reasoning of the court below. The application for stay of the civil proceeding was therefore dismissed.”
On the other hand, she observed that Chisale raised valid points to have his case referred to the Chief Justice for certification.
Among other grounds, Chisale wants the Constitutional Court to interpret whether the civil proceedings would infringe his constitutional rights to remain silent in the criminal proceeding.
In separate interviews after the ruling, both Attorney General Thabo Chakaka-Nyirenda who is representing the State and Gondwe expressed satisfaction with the Supreme Court’s decisions.
Chakaka-Nyirenda said the court’s decision to dismiss Chisale’s application to have his assets forfeiture case stayed, pending determination on the criminal proceedings means the matter will proceed in court.
“We are satisfied with the ruling because one of the stumbling blocks for the case to be concluded has been removed,” he said.
On his part, Gondwe said he believed that issues to do with the right to remain silent in the criminal proceedings and being called to make a statement in the civil case bordering on the same subject will compromise his client’s rights.
“So, what it [ruling] means is that the forfeiture proceedings are permanently stayed up until the constitutionality of those issues have been decided by the Constitutional Court,” he said.
On November 17 2022, High Court of Malawi Judge Mike Tembo dismissed Chisale’s application for stay of the preservation order pending hearing and determination of the criminal proceedings.
However, he ordered and directed that the Anti-Corruption Bureau should not use any or rely on any evidence that Chisale and others may make in preservation order proceedings to prosecute the criminal matter.
