Malawi high court judge on anti-graft unit’s powers

10 June 2022 · Carmel Rickard

In a major new decision, the high court in Malawi has clarified a number of issues critical to the country’s criminal justice system. The decision comes in the wake of attempts by a former cabinet minister, Kezzie Msukwa, dismissed because of corruption charges against him, to challenge the basis on which investigations into his alleged wrong-doing were carried out. Among other questions, Msukwa argued that the anti-corruption authorities in Malawi ought not to have made a cooperation arrangement with their counterparts in other states without going through Malawi’s attorney-general, and that the material gathered for use as evidence as a result of that cooperation, ought to be rejected by the court.

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The arrest of Malawi’s former minister for lands, Kezzie Msukwa, on corruption charges at the end of December 2021, could hardly have been more dramatic: He was stopped and arrested outside the hospital where he had gone for treatment for hypertension and blood pressure that was ‘out of control’. The arresting officers then handcuffed him

Msukwa and his co-accused, Ashok Nair, both asked for judicial review of their arrests and the charges against them. Among others, they argued that the Anti-Corruption Bureau should not have arrested them based on information shared by the UK’s National Crime Agency, rather than on the investigations of Malawi’s own anti-corruption bureau.

In his preface to a lengthy and wide-ranging decision, Judge Redson Kapindu commented, ‘The present matter is one of no ordinary significance. It raises, for the court’s determination, some fundamental issues that are critical to the effective functioning of the country’s criminal justice system, particularly as it relates to the fight against corruption and other financial or economic crimes.’

Consequences

He identified two main issues: First, were there limits on the way in which a person suspected of having committed an offence may be legally arrested, and if there were breaches of the procedural law on arrest, what would be the consequences? Second, how should Malawi’s scheme for international mutual assistance in criminal matters be interpreted? Specifically, may the ACB, as an agency of the government of Malawi, enter into mutual assistance arrangements with international or foreign agencies, without the sanction of, or going through, Malawi’s attorney general?

In the course of deciding these and other questions, Judge Kapindu examined the circumstances of Msukwa’s arrest at the hospital where he was to be admitted, suffering from hypertension and blood pressure that urgently needed to be controlled.

Msukwa, responsible for lands, housing and urban development at the time of his arrest, was being wheeled into the hospital when they were stopped by two officers of the ACB who introduced themselves and then informed Msukwa that he was being arrested for the corrupt use of his office. The ACB officer then handcuffed Msukwa, and he was wheeled into the hospital.

Chained

After protests from staff who said they could not monitor his vital signs unless his hands were free, the handcuff was removed from one hand and then ‘chained to a drip stand’.

In his decision on this part of the judicial review process, Judge Kapindu said there was no law making a hospital a ‘place of privilege’ in relation to arrests and that if a patient has to be arrested at a medical facility, each case had to be decided on its own facts to establish whether the arrest was lawful and fair. There was no legal basis to fault the ACB for arresting Msukwa at the hospital.

However, there had been no need to use handcuffs on him or to tie his hand to a drip stand as he lay on a hospital bed receiving medical attention, because there was no discernible security or flight risk.

Degrading

That he was in fact handcuffed ‘amounted to inhuman and degrading treatment’ and, in the specific circumstances of the case, Msukwa’s constitutional rights were violated.

But the ‘improper use of handcuffs’ was no basis for invalidating the arrest, the court held.

The two accused had asked the court to find that because of the great risk of serious violation of their rights, both the investigations into their actions, and their prosecution, should be ‘permanently prohibited’. In response, the judge said he found the ‘whole idea’ of inviting the court to impose a permanent prohibition on an investigation by a law enforcement agency, ‘to be generally at odds with a democratic system which is based on justice and the rule of law, and … contrary to the general public interest.’

Irrelevant

The court’s analysis of the law further showed that the ACB did not act beyond its powers by cooperating with the National Crime Agency of the UK, without involving Malawi’s attorney general. Instead, the law suggests that ‘an enforcement agency such as the ACB can enter into formal or informal cooperation arrangements with such other agents or authorities outside Malawi.’

On the balance of probabilities, Msukwa and Nair had not shown that the head of the ACB took ‘irrelevant and extraneous considerations into account in arriving at her decision to investigate, arrest and prosecute’ the two of them, when she considered ‘information she had obtained under the Mutual Assistance in Criminal Matters Act’.

The upshot of the court’s findings was that the temporary stay of proceedings that had been granted to Msukwa and Nair in respect of their prosecution, was lifted and the case against them may now continue.

The allegation against Nair is that he had been giving bribes to politicians, while it is alleged that Msukwa was receiving bribes to allocate land to certain people.

* 'A matter of justice', Legalbrief, 6 June 2022

Carmel Rickard

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