Africa-Press – Malawi. Kezzie Msukwa, who was arrested on Friday by the Anti-Corruption Bureau (ACB) in relation to corruption investigation the Bureau is undertaking involving businessman Sattar over sale of land in Lilongwe, maintains that the deal took place before he became Minister of Lands & Urban Development.
Msukwa argued at Zomba High Court where he filed and made an ex parte application for judicial review, saying the ACB failed to correctly appreciate and discharge its constitutional, statutory and administrative law duties.
Justice Zione Ntaba was told the said plot number 46/2057 in Area 46 in Lilongwe was sold to Sattar by the Ministry before he became a minister Msukwa argued that the ACB “should have taken a less dramatic approach by instituting proceedings against him under section 84 of the Criminal Procedure and Evidence Code”.
But the ACB says it does not agree with the court order with Director General Martha Chizuma saying they are in the process of complying with the court order as they prepare to apply for its discharge.
In his post on social media over this development, Sean Mateus considers that by agreeing with Msukwa wholesale, “the court misdirected its mind on some relevant factors of consideration.
He wrote: “First, it must be appreciated that there is a substantive criminal matter which Msukwa has been formally and lawfully called to answer and secondly, it must be appreciated that an arrest (or warrant of arrest) is merely one of those procedural elements employed to secure trial attendance of an accused person.
“An arrest ought to be procedural at all times i.e. always done according to the law. This notwithstanding, the fact that a procedural element was overlooked during the arrest of a criminal suspect does not automatically render the criminal proceedings a nullity.
“It is only after such an overlook has occasioned a failure of justice by materially prejudicing an accused person that such a proceeding becomes a nullity (Section 3 and 5 of the Criminal Procedure & Evidence Code)
“In determining whether any error, omission or irregularity has occasioned a failure of justice the court considers the question whether the objection could and should have been raised at an earlier stage in the proceedings.
“This is is exactly what Msukwa’s lawyer did — raise the issue of Msukwa’s human rights violations at an earlier stage in the proceedings. This having been done, the onus was on the judge to make the appropriate order having in mind Msukwa’s prayers (his request to the court).”
Mateus argues further that Msukwa’s prayer was to have his warrant of arrest permanently stayed and by permanently banning the ACB from arresting him on the preferred charges.
“Before making the determination, the court should have taxed itself with the following question — with regard to sections 3 and 5 of the Criminal Procedure & Evidence Code, would granting Msukwa’s prayers be the appropriate thing to do in the circumstances?
“Like I alluded above, I think not. My reasoning is, Msukwa’s human rights were violated but he was far from being prejudiced. He had access to a lawyer who could raise, and in fact did raise the issue with the court in good time.
“This being the case, the remedy was something else and not a stay of the arrest warrant. The judge should not have agreed with Msukwa’s lawyer. The court was enjoined to make an order(s) aimed at protecting Msukwa’s human rights while under arrest to ensure his fair trial.
“By agreeing with the claimants wholesale, the judge fell for the trap here and did exactly that she was trying to avoid — interfering with the mandate and jurisdiction of the ACB.
He added that Justice Ntaba “should have ordered Msukwa’s release on medical grounds to allow him get his medical treatment in line with his guaranteed Constitutional rights. But by no means was she supposed to stay the warrant of his arrest.
“There are a so many issues with that determination but l will stop here. Ndikutha kuwona chaka chikukhala cha busy ichi (I envisage such a busy year ahead).
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