The High Court's Zomba District Civil Division Registry, sitting as a Constitutional Court this morning, heard an application by businessman Karim Batatawala and former Immigration top boss Elvis Thodi to declare money laundering charges against them or their criminal prosecution unconstitutional.
Through their lawyer Fostino Maere, the two argued before justices Texious Masoamphambe, Patrick Chirwa and Dick Sankhulani that Anti-Corruption Bureau (ACB) charged them under Financial Crimes Act (FCA) enacted in February 2017, yet their offences were allegedly committed way back in 2009 and 2012.
Batatawala and Thodi are facing criminal charges at a magistrate court in Blantyre, allegedly for inflating figures of materials supplied to Immigration by a company owned by Batatawala. The criminal proceedings were halted in January 2023 after eight witnesses had already testified to pave way for the current constitutional matter.
Maere said charging them under FCA was unconstitutional considering that the previous Money Laundering Act attracted a maximum of 12 years prison term but the new FCA attracts a maximum of life imprisonment upon conviction.
But Attorney General (AG) Thabo Chakaka-Nyirenda, coming in as a second defendant to support ACB, first defendant in the matter, urged the court to summarily dismiss the case with costs, arguing the claimants were only trying to buy time to evade their criminal prosecution.
The AG argued the criminal matter was commenced in 2021 and wondered how they would wait until eight witnesses had testified to seek a judicial review.
"These are delaying tactics. We are asking the court to summarily dismiss this case and give directions that the lower court should proceed with the criminal matter. The claimants are simply seeking the court's advisory opinion," the AG argued.
ACB director general (DG) Martha Chizuma argued earlier that retrogressive operation of law, as the claimants wanted to argue, could only occur if one is charged under a law that never existed for offences committed before enactment of such a law.
Chizuma argued that in the case at hand, offences of money laundering existed in the Money Laundering Act, adding such offences were simply lifted from the previous Act and imported into the FCA.
The court reserved its ruling to a date to be communicated, but hinted the decision would be made within 21 days.
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