How Muluzi won by losing

Former president Bakili Muluzi yesterday may have lost his case against the validity of some sections of the Corrupt Practices Act (CPA), but taxpayers may have to wait longer to know whether he diverted their money.

The process of establishing that through trial may have resumed now but with his intention to appeal against yesterday’s Constitutional Court’s decision of upholding Section 32 (2) [b and c] of the CPA, that course is pended.

Given that the ex-president was first picked in July 2006, it means that in total, his case has so far meandered through the courts for at least 11 years–and counting– without the truth of the matter coming to the fore.

In part, the cited sections state that the director, the deputy director or any officer of the bureau (Anti-Corruption Bureau-ACB) authorised in writing by the director may investigate any public officer where there are reasonable grounds to believe that such public officer is in control or possession of pecuniary resources or property disproportionate to his present or past official emoluments or other known sources of income.

Further, the sections state that the public officer shall, within 60 days of being requested in writing so to do by the investigating officer, give an explanation to ACB as to how he was able to maintain such a standard of living or how such peculiarly resources or property came under his possession.

However, Muluzi challenged the section’s validity, arguing that the sections put the burden on the accused persons to prove their innocence against the general principle where the burden lies in the hands of the State.

Ironically, Muluzi was challenging the very same Corrupt Practices Act which he assented to in 1995, when he was president. He was president of Malawi from 1994 to 2004, during which he allegedly diverted funds from foreign powers meant for Capital Hill.

The rationale behind the ruling

However, in their judgement delivered in Blantyre yesterday in a packed courtroom mostly attended by lawyers, journalists, Muluzi’s family members and United Democratic Front (UDF) secretary general Kandi Padambo, a constitutional court panel comprising three judges namely Dingiswayo Madise, Dorothy Nyakaunda Kamanga and Jack Nriva, sitting in for Sylvester Kalembera, maintained that the law was applicable.

Had the Constitutional Court invalidated the section under contention, Muluzi would have walked to freedom as that effectively meant the falling off of the 15 corruption charges that are levelled against him.

“We find that this application and the orders and declarations sought in the originating motion were ill conceived and without merit,” read Madise on behalf of his colleagues.

The judges said the said section violated no law in the country’s Constitution and was a justifiable restriction on the right to be presumed innocent and therefore valid under the Constitution.

Further, they felt the right to a fair trial would be violated if Muluzi was tried and convicted or acquitted without giving him an opportunity to give “a reasonable and satisfactory explanation” on how he acquired his property.

The judges further observed that the courts in the country owe the other branches of government a duty of care if the fight against corruption is to be effectively achieved.

“Courts must bring to life the intentions of Parliament when it passed the provision in issue… Parliament passed the provisions because it wanted to achieve certain results which are to fight corruption,” observed the judges in their 21-page ruling.

The judges then directed the trial judge to set down the criminal matter for hearing direction within 30 days from yesterday in order to facilitate speedy prosecution of the case.

Reactions

Reacting to the ruling in an interview later, the former president’s lead counsel  Tamando Chokhotho said they would be proceeding to the Supreme Court to appeal.

“We had instructions that in case the case does not go our way we should appeal. This is High Court’s decision but we do have recourse to the Supreme Court and we shall be proceeding,” he said.

But on his part, senior assistant chief State advocate Steven Kayuni, who represented the Attorney General (AG), said they were contented with the ruling.

“Essentially, the court is saying Section 32 is in line with the constitutional framework. Therefore, it cannot be declared invalid as it is a workable provision being reinforced by the courts,” he said.

Commenting on the ruling, law professor Danwood Chirwa said the decision was a milestone in efforts to bring public officers to account for the manner they discharge their powers and responsibilities.

He said the “impugned law” was recognised in most democracies across the world and represented a noble attempt to balance the interests of the accused with those of justice.

“This case has proceeded at a snail’s pace partly because of the delaying tactics employed by the defence and partly because of political considerations,” he said.

Chirwa also commended the Anti-Corruption Bureau (ACB) for keeping the case alive, and the court for upholding “this important anti-corruption law”.

He also said although an appeal by the defence was within their right it will serve as another cog on the wheels of justice.

The chronological order of the case

Muluzi was first arrested on July 27 2006 and charged with 42 counts of corruption when Gustave Kaliwo, now under fire Malawi Congress Party (MCP) secretary general, was at the helm of ACB. He was, however, given bail without conditions.

In August 2008, Muluzi applied to the Supreme Court of Appeal, objecting to the Attorney General’s appearance in the case. In November the same year, the case was heard before Justices Lovemore Munlo, Isaac Mtambo and Elton Singini.

In the same month, Muluzi’s lawyers presented a four ground appeal to the court and in December, ACB said it had finalised its probe into the case.

Then in January 2009, ACB sent a questionnaire to Muluzi to explain how K21 909 092 from the Consolidated Fund was sent to three embassies of Japan, South Africa and Tanzania.

In February, ACB issued a fresh arrest warrant for Muluzi and on February 25, Muluzi was arrested before being given bail. On February 26, he appeared before ACB and his case was transferred to the High Court.

Muluzi appeared in the High Court the following month where he refused to take plea.

In 2011, Muluzi applied to the Constitutional Court to determine the constitutionality of Section 32 of the CPA before voluntarily withdrawing the matter.

However, his lawyers re-applied to the court in March 2017 challenging the validity of the said section.

The case has stalled on numerous occasions, most notably with Muluzi’s health being the reason, apart from judicial strikes. n