The Zomba District High Court Civil Division Registry, acting as the Constitutional Court, is scheduled to render its verdict today in a case involving businessman Abdul Karim Batatawala and former Immigration official Elvis Thodi. The two filed an application seeking a declaration from the court that their ongoing criminal proceedings on money laundering charges are unconstitutional.
Should the court reject their application, the criminal proceedings against them will proceed as usual. However, if the court rules in their favor, deeming their prosecution unconstitutional, their case before the Blantyre Magistrate’s Court would be dismissed.
Represented by their legal counsel, Fostino Maere, the duo argued before justices Texious Masoamphambe, Patrick Chirwa, and Dick Sankhulani that the Anti-Corruption Bureau (ACB) charged them under the Financial Crimes Act (FCA) of February 2017 for offenses allegedly committed in 2009 and 2012.
Batatawala and Thodi are accused of inflating figures of materials supplied to the Department of Immigration and Citizenship Services by Batatawala’s company. The criminal proceedings were paused in January 2023 after eight witnesses had testified to make way for the current constitutional challenge.
Maere contended that charging them under the FCA was unconstitutional since the previous Money Laundering Act carried a maximum prison term of 12 years, while the new FCA allows for life imprisonment upon conviction.
However, Attorney General Thabo Chakaka-Nyirenda, appearing as the second defendant to support the ACB, the first defendant, urged the court to dismiss the case summarily with costs, arguing that the claimants were attempting to delay their criminal prosecution.
The AG characterized the claimants’ application as a “Stalingrad Defense,” suggesting it lacked merit. He emphasized that the criminal matter began in 2021 and questioned why the claimants waited until eight witnesses had testified before seeking 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 also 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.
Lawyers walking out of court during the previous appearance
