Ex Parte Chilumpha (5 of 2006) [2006] MWHC 140 (8 November 2006)

Ex Parte Chilumpha (5 of 2006) [2006] MWHC 140 (8 November 2006)

The Vice President of Malawi does not enjoy immunity from criminal prosecution prior to impeachment; section 91(2) of the Constitution expressly confers criminal immunity only on the President. The applicant's arrest and prosecution were not ultra vires or unreasonable for lack of prior impeachment. The use of tape recordings obtained in violation of the applicant's right to privacy was unreasonable and unconstitutional, warranting damages. The failure to allow the applicant to inspect adverse material before re-interrogation breached his right to fair procedural and administrative action, warranting nullification of the interrogations and an order for disclosure. Other complaints,...

Citation
[2006] MWHC 140
Parties
Respondent: The State; 1st Respondent: Director of Public Prosecutions; 2nd Respondent: Lilongwe Chief Resident Magistrate; 3rd Respondent: Inspector General of Police; Applicant: Dr. Cassim Chilumpha, SC
Court
High Court of Malawi
Jurisdiction
Malawi
Judgment Date
8 November 2006
Case Number
5 of 2006
Procedural Posture
Constitutional Cause / Judicial Review / Ruling on Merits After Inter Partes Hearing
Outcome
Partially allowed; most reliefs dismissed, limited reliefs granted
Legal Topics
Judicial Review, Immunity of Public Officers, Right to Privacy, Fair Trial Rights, Criminal Procedure, Interpretation of Constitution
Source Language
English
Constitutional Law Criminal Law Administrative Law Judicial Review Immunity of Public Officers Right to Privacy Fair Trial Rights Criminal Procedure +1 more

Case Brief

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Parties

The State

Respondent

Director of Public Prosecutions

1st Respondent

Lilongwe Chief Resident Magistrate

2nd Respondent

Inspector General of Police

3rd Respondent

Dr. Cassim Chilumpha, SC

Applicant

Procedural Posture

Constitutional Cause / Judicial Review / Ruling on Merits After Inter Partes Hearing

Legal Issues

  1. 1 Whether the Vice President of Malawi enjoys immunity from criminal prosecution prior to impeachment
  2. 2 Whether the arrest, detention, and prosecution of the applicant violated constitutional rights to privacy, fair trial, and procedural fairness
  3. 3 Whether the use of tape recordings obtained without consent violated the applicant's constitutional rights

Ratio Decidendi

The Vice President of Malawi does not enjoy immunity from criminal prosecution prior to impeachment; section 91(2) of the Constitution expressly confers criminal immunity only on the President. The applicant's arrest and prosecution were not ultra vires or unreasonable for lack of prior impeachment. The use of tape recordings obtained in violation of the applicant's right to privacy was unreasonable and unconstitutional, warranting damages. The failure to allow the applicant to inspect adverse material before re-interrogation breached his right to fair procedural and administrative action, warranting nullification of the interrogations and an order for disclosure. Other complaints,...

Court Disposition

Partially allowed; most reliefs dismissed, limited reliefs granted

Orders

  • Damages to applicant for violation of right to privacy under section 21, to be assessed by the Registrar of the High Court
  • Nullification of initial interrogations; police to provide applicant with adverse material within 14 days before re-interrogation