The High Court of Malawi Financial Crimes Division has referred to the Chief Justice for certification as a constitutional matter the K18 billion Malawi Prison Service procurement case.
It involves former Cabinet ministers Nicholas Dausi and Joseph Mwanamvekha along with three others.
Making a ruling on a defence application, presiding Judge Violet Chipao said the questions raised were fit for interpretation by a panel of three judges.
Chipao. | Nation
However, she refused to grant a stay of criminal proceedings pending referral to the Chief Justice and also refused to dismiss charges against Mwanamvekha.
Chipao has also directed that the trial will continue from August 19 to 20 unless the Chief Justice certifies the constitutional question raised by Mwanamvekha’s team.
In its application, the defence argued that Mwanamvekha, in his capacity as Minister of Finance at the time, legally approved extra-budgetary funds upon request from a government department.
Former Attorney General Kalekeni Kaphale, one of the lawyers representing Mwanamvekha, said in an interview that the Constitution provides for such extra-budgetary financing.
He said: “It [extra-budgetary funding] is vetted later by the National Assembly for a supplementary appropriation bill, and this happens every year. But yet there is a provision in the Public Finance Management Act that seems to suggest otherwise.
“So, we said, well, this raises a question. Do we follow the superior law, or do we follow the inferior law? And the court has accepted it.”
In a separate interview, lawyer for the Anti-Corruption Bureau (ACB) Peter Sambani said the State is ready to make its case before the Constitutional Court that the way the Constitution was framed only allows appropriation by Parliament to prevent potential abuse.
Earlier, the State offered to turn Mwanamvekha into a witness, but Director of Public Prosecution (DPP) Masauko Chamkakala did not sign a certificate of discharge. This means Mwanamvekha remains a defendant in the case.
Other accused persons include former Ministry of Homeland Security Principal Secretary Samuel Madula, the ministry’s chief director Kennedy Nkhoma and senior deputy director Patricia Liabuba, who allegedly approved the purchase of prison supplies—including socks, underwear, steel plates, cups, handcuffs, belts, and whistles—from a United Arab Emirates-based firm One Guard FZE at inflated prices between February 2019 and June 2020.
Mwanamvekha is also answering another abuse of office and false accounting case contrary to Section 335 (A) of the Penal Code, following his arrest alongside former Reserve Bank of Malawi governor Dalitso Kabambe and former Minister of Local Government Ben Phiri in December 2021.
