Court rebuffs Sumbuleta on certification

The High Court of Malawi has dismissed former MBC director general Aubrey Sumbuleta’s application to have his sexual harassment and abuse of office case referred to Chief Justice for certification as a constitutional matter.

In an application, ex-Malawi Broadcasting Corporation (MBC) boss moved the court to, among others, issue an order striking out or permanently staying the proceedings.

Sumbuleta argued that Director of Public Prosecutions (DPP) did not act independently in commencing criminal proceedings against him. He further claimed that when he was giving his account, Malawi Human Rights Commission (MHRC) promised that it would not commence any criminal proceedings against him.

This compelled him to believe that MHRC violated the constitutional right against self-incrimination and right to fair trial, adding his statements would be used as evidence in criminal proceedings contrary to Section 42 of the Constitution.

Sumbuleta also claimed that he was not heard before the criminal proceeding contrary to Section 43 of the Constitution.

But in response, the State through State advocates Grace Wasiri and Matthew Gamadzi argued that the DPP acted independently, saying the MHRC report was not the basis for the criminal proceedings, but a criminal investigations report from the Malawi Police Service.

The State further argued that MHRC acted within its mandate when it conducted investigations into the allegations brought against Sumbuleta.

In her ruling, High Court Judge Ruth Chinangwa observed that MHRC report would be similar to any informant that would advise the DPP of any criminal activity.

She found that there was no proof that MHRC promised not to commence criminal proceedings and if the promise was made, it is not legally enforceable; as such, there was no infringement or breach of the Constitution.

Reads the ruling in part: “This court observes that the right against self- incrimination is not an absolute right. A person can choose to exercise his right or not…

“It is to that end, that asking this court to strike out and or permanently stay the criminal proceedings and or prosecution is untenable.

“Otherwise, the argument that the report is self-incriminating cannot stand as discussed above. This court dismisses the application in its entirety.”

Section 18 (3a) of the Human Rights Commission Act states that “any person questioned shall be competent and compellable to answer all questions put to him regarding any fact or matter connected with the investigation”.

Sumbuleta was arrested after MHRC carried out investigations into alleged reports of sexual harassment of female employees.