Court grants Chilima relief
High Court Judge Redson Kapindu has granted Vice-President Saulos Chilima his wish to vary bail conditions, agreeing with the defence he does not pose any risk to the ongoing trial.
During the sitting in Lilongwe on Tuesday, the judge ordered that Chilima’s passport should be handed over to the President and that when travelling outside the country, he does not need to seek authority from the Anti-Corruption Bureau (ACB) or the court but the President to whom he reports.
The judge said instead of reporting to the bureau every three months the court has placed the burden on the office of the Vice-President to provide the bureau with the Veep’s schedule every two weeks.
Said Kapindu: “In case of foreign travel, the accused must, 72 hours before, inform the bureau and the court and not necessary seeking authority.”
He further indicated that it was only fair and reasonable to have the President keep the travel documents, as the Veep is by law required to take leave of the Head of State for any trip.
The High Court has also removed the condition that require Chilima to report to the ACB every three months, saying it does not serve any purpose since his availability is assured considering the high office he occupies which puts him under State security and public surveillance all the time.
Kapindu said he found the ACB’s argument strange that they cannot depend on the fact that the Veep is under State security and that his movements are usually a subject of public record.
The Judge said the court “will not join the ACB in a journey” of mistrusting State machinery.
He further stressed that such bail conditions should not be put in place for the sake of it or serve as a punishment, but should apply where there is reasonable cause to believe that the suspect is a risk, which is not the case in the present matter.
In a ruling which lasted over an hour, Kapindu said he had extensively looked at the law to arrive at this decision, arguing that just like detention of a suspect in custody, there must be compelling reason to do so otherwise it should not be done where there are no risks, such as interfering with evidence or indeed absconding trial.
The judge, as part of the ruling, also addressed a hypothetical constitutional question he previously raised to the ACB on what would happen to the bail conditions if the President was incapacitated, saying when imposing bail conditions the court should bear in mind that if the Vice-President becomes President, he should not be going to court to seek authority to execute functions of his office.
He said it was his considered view that if the Vice-President ascends to the capacity of acting President, he may not enjoy immunity from prosecution as this is restricted to the President who is only incapacitated but is still alive.
Kapindu, however, argued that following the bail conditions would be unnecessary to allow the acting President or Veep to focus on running the affairs of the country without disruptions.
Earlier, before the ruling, the defence objected to plea taking which was supposed to be the primary purpose of proceedings, arguing that the ACB had amended the charge sheet without following the law and procedure and that it was yet to respond to their application for more disclosures.
Defence lawyer Khumbo Soko wondered why the bureau was proposing an amendment to the charge sheet nine months after effecting an arrest stressing that “when one makes an arrest they must be ready with charges”.
The lawyer further argued that they had demanded extra disclosures from the ACB and therefore preferred plea to be taken after these issues are addressed.
The ACB lead prosecutor Chrispin Khunga objected to the defence’s suggestion that the prosecution was at liberty to amend the charge sheet as they see fit and this is supported by both law and practice, a suggestion Kapindu agreed with.
On extra disclosures demanded by the defence, another ACB lawyer Victor Chiwala said the bureau has some documents ready while for others, they would “still need to request from other institutions”.
He also stressed that they will not share other demanded documents such as investigation reports as these contain privileged information.
Justice Kapindu has asked the ACB to make a submission and serve the court and defence relevant documents on their objection to make available certain documents and this has to be done within seven days.
Kapindu adjourned proceedings to August 25, 2023.
The ACB arrested Chilima in November 2022 and charged him with six counts of corruption for allegedly receiving a $280 000 bribe from businessperson Zuneth Sattar to secure government contracts.
The Vice-President was released on bail on the same day.
