Chizuma wins third time in audio case
A judge of the Malawi Supreme Court of Appeal on Thursday ruled in favour of Anti-Corruption Bureau (ACB) director general Martha Chizuma by dismissing an application by Frighton Phompho who sought a stay on a High Court ruling pending appeal.
Phompho is a private citizen who has been pushing for prosecution of the ACB chief for allegedly violating the Corrupt Practices Act (CPA) by revealing to a third-party information about United Kingdom-based businessperson Zunneth Sattar, who is under investigation over corruption, in a leaked audio in January 2022.
In April last year, the Magistrate Court in Mzuzu ordered Malawi Police Service and Director of Public Prosecutions to investigate the leaked audio, but Chizuma sought a review in the High Court in Mzuzu of the decision by the lower court, and the High Court granted the stay order, a ruling which did not please Phompho.
In her ruling on Thursday, nyaKaunda Kamanga said she carefully considered the issues raised by the legal practitioner for Phompho, Michael Goba Chipeta, and found that the relief of the stay order sought could not be granted ex-parte in law.
Chipeta raised an issue that he had summons to appear before Malawi Law Society disciplinary committee regarding his conduct in the Chizuma-Phompho case and the due date for appearance was yesterday, January 13 2023.
The Judge said: “The long and short of it is that Counsel Chipeta cannot seek this type of relief in the name of the Applicant when the alleged injustice concerns himself and when he is not a party to the proceedings … the application is declined on the ground that granting the relief would not uphold the principle of stay pending appeal in criminal review proceedings…”
She said the court found that the factors raised in the affidavit which made the application urgent did not concern the applicant or any of the parties to the proceedings in the court below or those on the notice of appeal.
“It is the considered view of this court that the applicant has not shown any facts or special circumstances establishing that injustice will be occasioned on the applicant if the relief sought is not granted,” Kamanga said.
She noted that it was also going to be unjust to Chizuma, and not in the interests of justice, to grant an order that “would effectively revive the proceedings in the Mzuzu Court”.
She observed it was the legal practitioner himself who was aggrieved with the execution of the ruling of the High Court.
The ACB boss on April 22 2022 applied to the High Court to review the proceedings in the Senior Resident Magistrate’s Court sitting at Mzuzu, where Phompho had lodged his case.
Chizuma, represented by lawyer Martha Kaukonde, was challenging the regularity and propriety of the criminal proceedings that were commenced against her by Phompho on April 6 2022.
On April 7 2022 the Senior Resident Magistrate made an order to the effect that the Director of Criminal Investigation in the Malawi Police Service had to carry out further investigations on the complaint and proceeded to summon Chizuma for interrogation.
The High Court in Mzuzu, on September 30 2022, under the review proceedings, striked out the criminal proceedings that Phompho had commenced at Mzuzu Magistrate’s Court and set aside the order that the Senior Resident Magistrate had made
