Malawi Defence Force (MDF) and the Department of Immigration and Citizenship Services have been disregarding a High Court order and legal advice from Attorney General (AG) Thabo Chakaka Nyirenda in a matter involving businessperson Samson Mulugeta, documents we have seen show.
The documents show that after Mulugeta, a Lilongwe-based businessman, was arrested and kept by MDF on behalf of the Department of Immigration, and thereafter deported to Ethiopia, on April 15 2024, the High Court in Lilongwe granted an order that described the deportation order unprocedural and unlawful.
The court further ordered the two security agencies to immediately release all items they confiscated from Mulugeta, and also to ensure that the businessperson is not restrained from entering the country.
However, this was not complied with prompting Attorney General to write them on July 15 2024 reminding them on the need to adhere to the court directive.
In his letter, the AG advised the two to return the passport and the national ID to Mulugeta, who is originally from Ethiopia, with immediate effect.
The AG further advised them that they were restrained from barring or restricting Mulugeta’s entry into the country after his “unlawful and unprocedural deportation”.
“And the 3rd defendant, the Commander of Malawi Defence Force, you are mandated to return to the applicant his motor vehicle—a Toyota Fortuner with registration number NS 4117—three cellphones and cash amounting to around K400 000.
“Please note that failure to comply with this order may result in contempt of court charges which could lead into imprisonment, fines or seizure of assets. I kindly request your immediate attention to this matter and prompt compliance with the court’s instructions,” reads the AG letter.
Subsequently, the Department of Immigration facilitated Mulugeta’s return to Malawi on November 4 2024, three months later.
However, MDF arrested him immediately after touching down at Kamuzu International Airport. He has since then been under military detention.
But Mulugeta and eight other Ethiopian nationals arrested on similar charges were extradited to Ethiopia on February 1 2025.
This latest deportation came six days after the High Court in Lilongwe granted another order on January 25, 2025 directing MDF to either take him to court or release him unconditionally.
“It is hereby ordered that the Malawi Defence Forces Commander should within 5 days from 22nd January 2025 bring the applicant Samson Belachew Mulugeta before the Chief Resident Magistrate’s Court in Lilongwe to be dealt with according to law.
“Failure to do so within the stipulated 5 days from 22nd January 2025 the applicant Samson Belachew Mulugeta shall immediately thereafter be released without any further order,” reads the order issued by Justice William Yakuwawa Msiska on January 22, 2025.
In his penal notice, the judge further warned that should the commander “disobey this court, the court will as soon as counsel for the applicant, can be heard be moved to commit you to prison for your contempt in disobeying this order of the court.”
While confirming the MDF had not returned the car, phones and money despite the court order, lawyer representing the businessperson Kalekeni Kaphale, (Senior Counsel-SC), in an interview on Tuesday expressed concern with the lack of respect for court orders ad legal advice.
Kaphale, a former Attorney General, described the development as the “lowest point, the nadir, on our collective march on the rule of law journey which we started in 1994.”
He said: “Utter disbelief that this is happening in Malawi under the present constitutional order… This is my lowest moment as a lawyer and as a former Attorney General. I cannot believe this is happening in my life time. I am lost for words.
“I cannot believe that the highly educated MDF command regard themselves as outside the jurisdiction of the courts in Malawi and that they consider themselves as not bound by the rights provisions in the Constitution,” lamented Kaphale.
Added Kaphale: “And in all this, questions linger. Has the command taken the legal advice of the Attorney General? Have they taken any legal advice from their internal legal team (I gather there are over 12 qualified lawyers serving the command)?
“Strange days these are. But where there is a right a remedy will be found. Always. We need to know, as a nation, whether we can continue with some government officials openly neglecting and flouting court orders. Is this the situation that we want to live under as a people?”
There was no comment from MDF, Immigration and Attorney General as they did not respond to our inquiries.
But human rights advocate Michael Kaiyatsa observed MDF’s continued detention of Mulugeta despite court orders was deeply worrisome.
He said the development not only undermines the integrity of the Judiciary but also highlights the need for urgent reforms to ensure that all citizens, regardless of their background, are treated fairly and justly under the law.
“This prolonged detention is a clear violation of his fundamental human rights and due process. The High Court has spoken, yet authorities have chosen to disregard these legal orders, raising serious questions about the rule of law and accountability in Malawi.
“Any person, regardless of their nationality, has the right to be treated fairly under the law. Mr Mulugeta has been deprived of his freedom for an extended period of time, without being presented before a court, as required by law.
“Detaining someone without legal justification, especially after a court order for release, is a clear violation of his rights as a human being,” he said.
Kaiyatsa said the MDF and Immigration authorities must be held accountable for flouting legal orders and violating the rights of individuals in their custody.
He also said failure to comply with judicial orders undermines the rule of law and perpetuates an environment where human rights are disregarded without consequence.
“We call for immediate action to hold the responsible authorities accountable and to ensure that Mr. Mulugeta’s rights are upheld as prescribed by the Constitution and international human rights standards,” said Kaiyatsa, who is executive director of the Centre for Human Rights and Rehabilitation (CHRR).
He said the MDF was sending a troubling message that, under the current constitutional order, there may be a growing trend of unchecked power.
“The failure to uphold the rule of law and comply with court orders is not merely a failure of one institution, but a clear signal that constitutional principles and human rights protections can be disregarded when it suits powerful state actors.
“This undermines democratic norms and poses a serious risk of creating a climate of impunity where fundamental rights are easily ignored,” he said.
For now, the MDF Commander General Paul Velentino Phiri risks a K10 billion claim and contempt charge for allegedly disregarding court order.
Kaphale has given Phiri notice of the intended suit for the said amount for aggravated damages for false imprisonment and loss of earnings for the businessperson.
In his letter dated January 29 2025, the former Attorney General, has also given the Army chief a notice of application for his committal to prison for contempt of court.
Reads the letter: “Take notice, too, that we have filed in court an application for committal to prison of the Defence Forces commander for contempt of court. He should assemble his legal team to start preparing his defences to that application.”
The letter is addressed to the Minister of Defence Monica Chang’anamuno, the Attorney General and Secretary to the President and Cabinet Colleen Zamba.
The Lilongwe-based businessperson, originally from Ethiopia, was arrested last year alongside others for alleged human trafficking.
