[civsoc-mw] The allogance of Chisale

[Dunstain Mwaungulu]

I never said what you say when you read the judgment away from the hype you
say. The constitutionality of two very clear statutes that protect the
President from duty was never an issue before me and I never decided it. I
can produce the judgment to anyone who requests for it to your email box.
In summary, this is, and I will avoid the politics of successor governments
- since the Press Trust Reconstruction Act - to, in violation of human
rights - to interfere with property rights of their opponents. I also say
this, because, I am probably one of the few judges, if more, whodoes not
start from the LAW paradigm but the right paradigm. This is because we are
required by the Constitution to protect ALL RIGHTS created under the
CONSTITITION and LAWS of Malawi. More over we are required to enforce and
uphold the law and the Constitutio unde the Constitution by our oath and
SEPARATE STATUS, DUTY AND FUNCTIONS in Section 9 of the Constitution. So
here is what I decided, briefly. The action before me was to decide the
constitutionality of an action of government - the MRA - to impound or
harass Dr. Peter Mutharika over motor vehicles of his deceased brother by
judicial review.

1. In a judicial review, the complainant is the State, in this case Dr.
Peter Peter Mutharika. The matter is labelled, if you check, "In the Matter
of the State of the State v The Commisdioner of Revenue  ex parte
Mutharika. It is the State complaining against the government for its
unlawful actions.
2. In an action where the State, not government is being complained of, the
government cannot discuss the legality of the laws it promulgated. So
naturally, the constitutionality of the Customs and Excise Act  and the
President Privileges snd Immunities Act could not be raised. Peter could
not raise it either because this contention was that the government had
acted unlawfully.
3. The first point for consideration  - not seen by both parties - was
whether government, the MRA, directed their actions to the right person. If
it was not the right person, the government, the MRA, was hounding and
harassing Peter unconstitutionally and unlawfully and should be stopped
right in their pants - just as my decision in the Press Trust
Reconstruction Act  - reversed by the Suoreme Court - on other grounds -
because it violated the law in three respects.
4. First, because it was interference in the rights of the estate of Dr.
Bingu which, as we see shortly, did not and could not  except by will and
there was none proved, under the Deceased Estates Wills and Inheritance Act
could never as in ever devolve to siblings until it was shown there were no
parents, children, dependants and grandchildren of Dr. Bingu. It was common
knowledge that Dr Bingu had children and grandchildren who, even if there
was just one, could inherit the WHOLE estate.
5. The action by MRA was an action which itself was required to uphold. The
sections directing them to offer duty free facilities  was directed
directly at them. How could they with impunity choose to neglect the law?
6. This goes to my articulated reasons why I could not intervene with the
Act. First, I noted that the reason why there was such a provision was
because the Act, probably passed in the 1960s, "recognised" the doctrine
that the sovereign does not pay taxes.
7. The two statutes covered ALL goods from a needle to anything else the
President acquired. I decided correctly, that it cannot really be the duty
of the courts to determine what tupe of goods - in thousands of not
millions and what quantity of goods to exclude or decide upon what is
reasonable. Specifically, the  privilege statute quantified the number of
cars for the VP and NEVER as in EVER limited the President's number. In
short, these are policy matters of policy - budget and economics which
judges do not know and are under oath not required to use in resolution of
disputes.
8. The Court could have listened to evidence on the matter if it was
proffered by MRA.
9. So I determined that it was a matter for Parliament  - not the Court to
decide. As you would have it Predident Joyce Banda and the Legislature
could not - for good reasons known to them - dare to change the law and she
and Peter took on to use it  for a legitimate right, as we see shortly, to
use its openendedness.
10. The two sections can be viewed analytically from a power point to raise
the questions you well observe. But they create a right personal to the
president. We are called upon to uphold rights under the Constitution and
under the law.
11. In this case, the rights and liabilities of the Bingu Estate insured to
the Adminstrator/Adminstrstrix or Executrix/Executrix  - not Peter - of the
Estate. In an earlier order, I ruled that lawyers had misled the Court in
obtaining letters of administration from the Zomba Registry when the law
prohibited District Registries from issuing such letters. The consequences
of this that only the people in the first and second circle - who did not
include siblings, the third circle where Peter belonged - could obtain
letters of administration. SO THE GOVERNMENT  - THROUGH RMA - WAS GROSSLY
OUT OF COLOUR TO HARRASS PETER ON HIS RIGHTS.

QED

This is very different from the hyperbole you want to create. I will send
the judgment to your inbox or email if you send addresses.

THANK YOU FOR READING.

On Mon, 5 Oct 2020, 08:05 KPD, <maluwakpd at gmail.com> wrote:

> For a person who has denied Malawians the desperately needed revenue by
> colluding with Indians to avoid paying customs duty on imported cement,
> Chisale is just laughing at ACBand Directorate of public prosecution.
>
> All this thanks to Judge Dunstan Mwaungulu who believes that ordering 125
> vehicles by a president duty free is allowed by the constitution.
>
> I don't know which part of the constitution was used to arrive at his
> judgement. The constitution clearly said for personal use. Just Mwaungulu
> basically interpreted it as, "the president is allowed to import anything
> in any quality duty free"
>
> Unfortunately, for whatever reason, the judgement was never appealed.
>
> A few years down the line here is Peter Mutharika who has used this
> privilege through his proxy to deny Malawians billions of Kwacha in customs
> duty revenue.
>
> I see another Mwaungulu judge setting Chisale free and saying there was
> nothing wrong for Mutharika important millions of bags of cement for
> 'personal' use.
>
> But Malawi. Where is God when we need him most?
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