The State wants the High Court to re-examine the ruling the Lilongwe Chief Resident Magistrate’s Court made on Wednesday last week, which referred the perjury case against four of the 12 accused in the treason case back to the High Court.
The four charged with perjury are Democratic Progressive Party president Peter Mutharika, former chief secretary to the government Bright Msaka, former Cabinet ministers Goodall Gondwe and Jean Kalirani.
In a response to a questionnaire on Friday, Director of Public Prosecutions (DPP) Bruno Kalemba said they want the High Court to determine the legality of some of the lower court’s findings.
“The State has thoroughly examined the ruling and it is our considered opinion that there are issues that need re-examination by the High Court to determine the legality and correctness of some of the findings made by the honourable chief resident magistrate. We are examining options available to us on how to move the High Court to make such determination,” said Kalemba.
He was noncommittal on when the State—which has engaged three private practice lawyers to help it try the case—will move the High Court. The three are two former directors of public prosecutions Fahad Assani and Ishmael Wad, and Ralph Mhone.
The decision to try the perjury case in the lower court after it was already committed to the High Court as one of the seven charges against the 12 accused in the treason case became the bone of contention after defence lawyers argued that the Director of Public Prosecutions did not comply with constitutional provisions by not providing reasons to the Legal Affairs Committee of Parliament for the discontinuance.
In her ruling, chief resident magistrate Ruth Chinangwa said while Section 292 of the Criminal Procedure and Evidence Code is clear that the DPP can discontinue a matter which has been committed to the High Court for trial, Section 99 (3) of the Constitution requires that the State provides reasons to the Legal Affairs Committee of Parliament for the discontinuance of the matter in the High Court, which, she noted was not done.
But Chinangwa said she was not sure what the consequence of the State’s failure to provide reasons to Parliament would be; hence, her decision to refer the matter to the High Court for interpretation.
“It is the [Chief Resident Magistrate] court’s finding that the State did not comply with Section 99 (3) of the Constitution by not providing reasons to the Legal Affairs Committee for the discontinuance of the matter in the High Court. Section 99 (3) of the Constitution has not elaborated on the same.
“In view of the absence of any guidance on the issue, this court is in agreement with the defence that the High Court ought to interpret the constitutionality of the action of the DPP of the constitutional implications of his omission to provide reasons to the committee. The direction given by the High Court will enforce and protect the Constitution,” reads part of the ruling.
On whether the matter that was discontinued in the High Court is the same as the one which was commenced in the magistrate’s court, Chinangwa noted that while the charges are based on different sections, the offences are based on the same facts.
“It is clear that the State cannot charge a defendant twice on the same facts. If these were different charges, one can reasonably say that the State would have commenced the charges in the lower court without necessarily having to withdraw count seven in the High Court.
“It is the court’s view that this is a matter where the High Court would also give direction. It is this court’s view that if allowed under Section 99 (3) of the Constitution, commencing the mater in another court, in this case a subordinate court, may even lead to forum shopping which is discouraged by the court,” said Chinangwa.
On whether the DPP’s action amounted to an abuse of court process or violation of the accused’s right to fair trial or an offence to court’s sense of justice and propriety, Chinangwa said this could only be determined by the magistrate’s court after the High Court’s direction on the appropriate court for commencing a discontinued matter.
Particulars of the offence say that Mutharika, Msaka, Gondwe and Kalirani at Ufulu Gardens in Lilongwe wilfully gave false evidence to the commission of inquiry into the circumstances of the death of the late president Bingu wa Mutharika.
The four were charged with treason in March this year alongside former ministers Henry Mussa, Symon Vuwa Kaunda and Patricia Kaliati; former deputy ministers Nicholas Dausi and Kondwani Nankhumwa; former deputy chief secretary to the government Necton Mhura; former presidential guard commander Duncan Mwapasa and late Mutharika’s legal adviser Allan Ntata.
The 12 are facing different charges on the role they played during the death of Mutharika in April last year and in handling the transition. They are being accused of trying to circumvent the Constitution by preventing the then vice-president Joyce Banda from taking over as President soon after Mutharika’s death.
