[civsoc-mw] The allogance of Chisale

Tue Oct 6 08:18:52 CAT 2020

Be wary of lawyers. They are the most corrupt after doctors and policemen.
Don't trust what they say. Most of them can sell their mother's at a fee.
Don't say I didn't warn you.

On Tue, 6 Oct 2020, 08:10 KPD, <maluwakpd at gmail.com> wrote:

> KB
>
> I was shocked when MRA lawyers did not appeal that judgement.
>
> I have read his response here and it is all over the place. What is it
> that Parliament should change?
>
> The provision is straight forward. The president doesn't pay customs duty
> for anything he imports for personal use. This means he pays customs duty
> for anything that he imports and it is not for his personal use.
>
> Some of these judgements are very demoralizing to hardworking honest civil
> servants who want Malawi to progress.
>
> On Tue, 6 Oct 2020, 07:37 Keyboard Boyd Kilembey, <kkilembe at gmail.com>
> wrote:
>
>> The Jaji had all the opportunity of righting a wrong or wronging a right
>> bit he chose to be on the side of the criminals who steal from hewe and
>> likaka povos using law technicalities. It was obvious bingu was not using
>> the cars personally. We all know why MRA did not charge duty. Shifting the
>> blame to parliament to make new laws was dereliction of duty. The law
>> allowed importation for personal use. All the judge had to do was establish
>> if the goofs imported were being used for personal use.
>>
>> On Tue, 6 Oct 2020, 06:01 KPD, <maluwakpd at gmail.com> wrote:
>>
>>> Your honour,
>>>
>>> The part that is in question is, "For personal use"
>>>
>>> The question was to interpret what  does, "personal use" mean and
>>> whether anyone can reasonably say ordering 125 vehicles can be for
>>> "personal use"
>>>
>>> My simple interpretation is that if the president orders a car for me,
>>> he should pay customs duty. Any reasonable person can not say the car is
>>> for the president's personal use when it is clear that he bought it for me
>>> and not himself.
>>>
>>> That is why I am saying Chisale is smiling because of your judgement on
>>> 125 for personal use. The president's privileges were used to import
>>> thousands of bags of cement which were sold to the public. And you say it
>>> is harassment if MRA demands duty.
>>>
>>> On Tue, 6 Oct 2020, 05:22 Dunstain Mwaungulu, <
>>> dfmwaungulu at googlemail.com> wrote:
>>>
>>>> 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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>>>>>
>>>>
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