Supreme Court snubs Chisale

Malawi Supreme Court of Appeal (MSCA) has thrown out an application by former president Peter Mutharika’s personal bodyguard Norman Chisale to stop proceedings of a case he is accused of using a fake academic qualification.

In December 2021, the court had granted Chisale an order temporarily stopping the proceedings in the case following his application that there were procedural and substantive issues bordering on how the lower court (Senior Resident Magistrate’s Court) was conducting the trial.

But in a ruling delivered in Blantyre yesterday, Justice of Appeal Sylvester Kalembera said the lower court was at liberty to proceed with prosecuting the case.

He said the case must be tried by the Senior Resident Magistrate’s Court first and that the appellant should not limit his own right to such trial as granted under Section 42(2)(f)(i) of the country’s Constitution.

Kalembera observed that Chisale also lacked interest in the prosecution of the case, which has stalled since August 22 2021.

Reads the ruling in part: “While appeals can be entertained by this court on judgements that are not final, the law has attempted to limit instances where this court should be hearing appeals on matters which have not been fully disposed of by the court below.

“It is imperative of me to caution myself on appeals coming to this court on issues that are not final that in the end, stifle trials and impact on the right to fair trial.”

A similar application was previously filed in High Court Judge Annabel Mtalimanja’s chamber, but was dismissed. Judge Kalembera maintains that the decision by the lower court had just begun.

Court documents showed that in the course of trial, the State applied to amend the charge sheet, an arrangement Chisale, through his lawyers, opposed. But the State was granted its wish to amend the charge sheet.

And in his application for a stay order pending appeal in the Supreme Court, Chisale questioned the legality of the State reopening its case after it was closed and asked the appeal court to resolve the anomalies.

Delivering the ruling dated December 17 2021, Justice of Appeal Lovemore Chikopa said the questions raised by Chisale were sufficiently serious and important.

He said he granted Chisale both the stay order and a go-ahead to proceed with the judicial review because proceeding with hearing of the case would be discriminatory and constitutionally untenable.

Chisale was charged with three counts, namely impersonation of a person named in a certificate contrary to Section 391 as read with Section 358 of the Penal Code, presenting false information to a person employed in the public service contrary to Section 122 of the Penal Code and intimidation contrary to Section 88 of the Penal Code.