"It's shameful that the UDF party wants to take us back to the dark days,"

Mr Gwanda Chakuamba (2003)

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Wednesday, September 24, 2008

Muluzi’s treason fate on Sept 29

By THERESA KASAWALA - 23 September 2008 - 15:28:54

The High Court in Blantyre will on September 29 decide whether or not
former president and opposition UDF national chairman Bakili Muluzi
should be released unconditionally or his conditions varied following
state’s failure to charge him on treason allegations, three months
after his arrest.

Muluzi made an application through his lawyers Fahad Assani and Jai
Banda, asking the court to release him unconditionally or vary bail
conditions under Section 118 (3) of the criminal procedure and evidence

The applicant was arrested on May 25 after landing at Kamuzu
International Airport from the UK on allegations of plotting to
overthrow the government.

Assani told the court sitting in Justice Anaclet Chipeta’s chamber that
the police have failed to charge their client despite being asked to do

He observed that over three months have lapsed and no formal charges had been made against the applicant.

“After 48 hours, the applicant was not taken to court where he could
have been charged or informed of the reasons for his arrest,” he said.

“We need unconditional release of our client because Section 42(2)(b)
of the Constitution stipulates that every person arrested for, or
accused of, has the right to be brought before an independent and
impartial court of law and to be charged or be informed of the reason
for his further detention not later that 48 hours, failing which he or
she shall be released,” says part of the section quoted by the defense

Assani said the section refers not only to the arrested persons but also the accused.

“The accused person, the situation the applicant is in, is required by
the Constitution ‘to be brought before an independent and impartial
court of law and to be charged.’ This has not been done and the
Constitution has prescribed the outcome of such position, failing which
he or she shall be released,” the defense argued.

On variation of bail conditions, the defence said as an alternative in
an event that the court wants to keep the applicant under the bondage
of bail, though not charged with any offence, they were asking for the
variation of bail conditions.

“Section 118(3) of the Criminal Procedure and Evidence Code stipulates
that the High Court may, either of its own motion or upon application,
direct that any person be released on bail or that the amount of, or
any condition attached to, any bail required by a subordinate court or
police officer be reduced or varied,” Assani explained.

He said in the absence of any charge the conduct of the state to arrest
him restricts his liberty through a bail bond, adding that was
tantamount to denying the applicant his right to freedom and security
of person.

The Director of Public Prosecutions (DPP) Wezi Kayira told the court
the state was not yet ready to charge Muluzi because the issue was
still under investigations.

Muluzi’s bail conditions include that he informs police when going
outside Blantyre and the High Court if traveling outside the country
and reporting to police once every month, conditions the defence wants
to be varied and scrapped all together.

In a related development, the same court Monday also reserved its
ruling to October 2 on the application by the state, asking the court
to order that the case of two retired Malawi Defense Force (MDF)
brigadiers Cosgrove Mituka and Juvenalis Mtende be referred to the
Industrial Relations Court (IRC).

The state wants the court to order that the case should not go under
judicial review but be referred to the IRC, arguing that the issue was
to do with employment.

A lawyer representing the brigadiers, Ralph Kasambara argued in court
that the case could not be referred to the IRC because MDF and the
police were not covered in the public law.

He argued that Labour Relations Act does not cover issues to do with
MDF and police hence the need for the case to go under judicial review.

A lawyer from the Attorney General’s chamber Mphatso Kachule told the
court that issues to do with employment could be heard in the IRC.

“There is no specific phrase in the Labour Relations Act that
stipulates that labour issues to do with MDF cannot be heard in the
Industrial Relations Court,” said Kachule in Justice Healey Potani’s

He argued that the case could be referred to the IRC because MDF was not a separate branch of government.

“The affected officers also did not sign any form as required for the
Army commander’s assessment and recommendations after noting that their
contracts had expired,” Kachule said, adding that the commander could
not make an assessment in the absence of signing the form.

The state also asked the court to lift the injunctions obtained by the
defence restraining government and MDF from firing the two brigadiers.

Kasambara made an application asking the court to imprison Army
Commander General Mark Chiziko and two principal secretaries for
failure to comply with a court order to re-instate the brigadiers until
the matter was heard.

The two army officers wanted the three arrested on grounds that they
did not formally respond to the injunction that was served on MDF
except for a telephone call officials from MDF made enquiring on the

The court ordered that the brigadiers should be re-instated until the
matter was heard, but reports indicate that the two have not yet been
re-called for duties.

Mtende and Mituka were fired following treason allegations that were
leveled against them and Muluzi as an alleged beneficiary of the coup

It was alleged that government terminated their contracts because they did not express interest to have them renewed.

But the two claimed that they applied through Chiziko’s office to have their contracts renewed.

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