THE HIGH COURT OF MALAWI
CASE NO 1 OF 2001
JEFFREY & 3 OTHERS
Chisanga; Counsel for the State
Mhone; Counsel for the Accused
Kafotokoza; Court Interpreter
Mbewe; Court Reporter
U L I N G
we resumed sitting yesterday 7th
August, 2006 there were issues which Counsel Chisanga made
preliminary comments on the written submissions by defence. There
are matters of substantial effect to the whole case. I would
summarise the matters as follows:-
the consent of the DPP was in respect of corruption charges under
corruption charges were dropped and an amended charge sheet under
the penal code offences substituted. Whether in the circumstances
the consent of the DPP was still operational.
consents to prosecute were given on 23rd
October, 2000. Trial commenced on 10th
December, 2002. Defence argues that trial was a nullity because
the operational validity of the consents had expired. The
statutory twelve months provided in section 24(4) CPA had elapsed.
The said section provides that no prosecution shall commence
the expiry of twelve months from date of issue.
appointment of Counsel Chisanga as a prosecutor under section 79(2)
CP & EC is being challenged. Defence challenges that
he was not
appointed as such prosecutor by the DPP. There is not written
letter effecting such appointment.
defence has raised what they call a Grant Constitutional Law
Question. Defence contends that criminal prosecution against
accused persons violet section 19(6)© of the Constitution because
the matters arose from contracts. Therefore are governed
by law of
contract. In the present case the remedy could be compensation,
damages or order of specific performance.
by instituting criminal proceedings it is a design to have accused
convicted and imprisoned..
my mind the matters of consent to prosecute on specific charges or
appointment of counsel Chisanga as a prosecutor could be
within the context of the final submissions.
matters of interpreting the constitution, though this court has
jurisdiction for example section 42 of the Constitution,
largely within the province of the Constitutional Court. In this
regard I dont want to be over zealous to interpret
Constitutional provision on my own. It would be appropriate to seek
the legal opinion of the Constitutional Court.
a person cannot face criminal prosecution on facts emanating from a
contract. Whether the States hands are tied not
to lay criminal
charges against a proprietor of a construction company who knowingly
claims payment from government for no work
done or duplicates claims
of payments and gets paid twice on the same project. Or where
instead of constructing a new building,
the proprietor rehabilitates
old building but claims payment as if it was a new building which has
a higher construction cost.
this regard it is my ruling that we pend and adjourn hearing closing
submission proceedings until the Constitutional Court is
determine these matters. It is upon the parties to agree upon
themselves who will move the Constitutional Court.
: We have matters regarding.
finances and property.
: We adjourn into Chambers.