The High Court of Malawi Financial Crimes Division in Lilongwe has dismissed as premature the defence’s application for disclosures of ‘sensitive documents’ in a case where Vice-President Saulos Chilima is accused of corruption.

But Judge Redson Kapindu said if such information will be relevant in the case, in the interest of fair trial a decision will be made on whether to tender the ‘sensitive’ information or terminate the case altogether.

Chilima with spouse Mary and UTM Party secretary general Patricia
Kaliati (L) at the court on Tuesday

In the judgement read over one-and-a-half hours, the judge said on the face of it, given the elements of the offence at hand, the information requested did not seem to qualify as a fact in issue in terms of Section 171(1) of the Criminal Procedures and Evidence Code (CPEC).

Kapindu, thus, agreed with the Malawi Defence Force (MDF) that some of the documents are indeed highly sensitive in nature to be made public.

He said the information sought by the defence was premature on the basis that the relevance of the information cannot be established at this stage, although it may possibly be shown at a later point in the course of the trial.

Said the judge: “After looking at the minutes of the Defence Council, outrightly, the court wishes to mention that it formed a clear view that the same were not of such a nature to be used in court proceedings as evidence…

“But if the court will form a view that the information sought is relevant for the defence in light of proof of certain trial facts during the course of the trial, and that a fair trial for the defendant will not be possible in the absence of access to such information, then the decision will ultimately fall on the State on whether to proceed and disclose such information, notwithstanding the court’s finding that it is of a highly sensitive security nature as to enjoy public interest immunity or to terminate the proceedings in the interest of national security.”

The defence legal team sought disclosures on minutes of the Defence Council meeting held on October 16 2020 authorising the procurement of armoured personnel carriers (APCs) and a memorandum of March 2021 from the MDF to President Lazarus Chakwera seeking authorisation to buy APCs from Malachite FZE, a company linked to United Kingdom-based Malawian businessperson Zuneth Sattar, using single sourcing.

The court also said it based its decision not to grant the defence its wish after observing that the minutes were very comprehensive, spanning a length of 44 pages, covering highly sensitive national and international issues, including the state of national equipment and operations of the country’s armed forces in various places.

Kapindu further said the decisions were based on painstakingly and delicate balance that weighed the right to a fair trial on one hand against the need to protect the nation from potential of the accused person, and the great public interest.”

The ruling also stressed that the sensitive documents will not be of use during proceedings at this stage.

In an interview after the ruling, Imran Saidi, one of the prosecutors for the Anti- Corruption Bureau (ACB), said the defence failed to prove relevance of the disclosures sought to the case; hence, the position of the court.

But one of the defence lawyers Khumbo Soko said what they wanted to know was the contents of the minutes and information in the memos, as such, the court’s granting of access to the same in camera was fair.

He said: “What the court has said is we cannot have a copy, but we will see what is contained in those materials and once we know, we can preposition ourselves and advise our client accordingly.”

In the case, Chilima is accused of having received unspecified sum of money from Sattar to allegedly influence public contracts in his favour.

He was arrested in November 2022 after being named among 84 individuals suspected to have received bribes from Sattar, according to a report the ACB submitted to President Chakwera in 2022. Meanwhile, the case has been adjourned to May 3 2024.

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