Chisale seeks order to vary frozen accounts

Former president Peter Mutharika’s personal bodyguard Norman Chisale asked the Malawi Supreme Court of Appeal to vary an order issued by the High Court to freeze some of his assets.

The court indicated it would make its ruling on a date to be communicated.

The preservation order the High Court issued earlier last year also froze Chisale’s two bank accounts, a situation his lawyer Chancy Gondwe said crippled his client financially and he could not afford to pay legal fees to his lawyers.

The preservation order on Chisale’s assets was issued following an application by the Director of Public Prosecutions (DPP) and Attorney General (AG) ahead of his assets forfeiture case.

Appearing before a single Judge of the Supreme Court Charles Mkandawire, Gondwe said his client applied for the order to vary the preservation order to enable him access K50 million to clear legal bills incurred.

The lawyer argued that the application was brought within the law, under Financial Crimes Act, after High Court of Malawi Judge Mike Tembo dismissed an earlier application on November 17 2022 to stay the preservation order pending hearing and determination of his client’s criminal proceedings.

The lawyer said the application was brought before the High Court for variation of the preservation order, which the lower court declined, but granted permission for an appeal.

Gondwe said: “We are now here making this application. My client wants to access part of his money to pay legal fees. His accounts are frozen, he cannot access his money. It is our application that this court should direct variation of the preservation order on terms this court deems proper.”

But lawyer Pirirani Masanjala, who led a team representing the DPP, told the court they were objecting the application because it did not comply with Section 70 Subsection 2 of the Financial Crimes Act.

He told the court that during the hearing in the lower court where Chisale also asked for an order to stay the preservation order pending hearing and determination of the criminal case regarding possession of unexplained property, he had applied to access K120 million to meet his reasonable living standards.

“The court below declined that application, and from there, he was supposed to take the same application here, but he has brought a new application asking for K50 million to meet legal costs. This application has failed to meet standards and it must be dismissed,” Masanjala said.

Lawyer Edwin Mtonga of Financial Intelligence Authority (FIA), but on the DPP team in this case, said Section 70(2) should have been the core of the application, but the applicant did not tackle substantive issues.

He said in dismissing the application, the High Court had to consider evidence that was brought before it.

In his submission, AG Thabo Chakaka Nyirenda said the application required a full bench of the Supreme Court to be heard. He said in the current circumstances, the court did not have jurisdiction over the matter.

He argued that the definition of living standards, according to the dictionary, does not include legal fees.

But Gondwe, in his response, cited a case authority served on the defendants that allow variation of preservation orders to afford an accused person not yet convicted to meet legal expenses. The constitutional matter is the case where Chisale wants the court to determine on whether hearing of the K5 billion forfeiture case or preservation order, a civil case, and possession of unexplained property case, a criminal matter, at the same time would not prejudice his criminal matter.