* ACB submitted records that show that Mphwiyo last appeared at their office for bail on June 19, 2023
* Efforts to trace him through his sureties were futile as they were ignorant of his whereabouts
By Duncan Mlanjira
Under section 121 (2) of the Criminal Procedure and Evidence Code, the Lilongwe High Court has ordered that former Budget Director, Paul Mphwiyo’s residential house in Area 43 — which was attached as his bail bond in the case in which he is being charged of theft by public servant and other offences — be forfeited to Government having absconded bail conditions and cannot be traced.
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The ruling by Justice Ruth Chinangwa says having reviewed application for revocation for bail made by the State, which was supported by an affidavit and skeletal arguments, the court was satisfied that Mphwiyo has absconded his bail, which was bonded at K18 million cash and his residential house at Area 43 in Lilongwe.
Mphwiyo was charged with theft by public servant contrary to Section 278 as read with Section 286(1) of the Penal Code; money laundering contrary to Section 35(1)(c) of the Money Laundering, Proceeds of Serious Crime and Terrorist Financing Act and conspiracy to defraud contrary to Section 323 of the Penal Code.
He was granted bail on October 24, 2014 and some of the bail conditions were that he be appearing before the Anti-Corruption Bureau (ACB) every fortnight.
Justice Chinangwa said the ACB submitted records that show that Mphwiyo last appeared at their office for bail on June 19, 2023 and efforts to trace him through his sureties — Eunice Kaliati and Gabriel Rashid — were futile as they were ignorant of his whereabouts.
The Judge also took cognizance that on the date of hearing of the bail revocation on October 20, 2023, Mphwiyo was not available in court nor did he file any documents to oppose the application — prompting the court to proceed with the hearing in his absence.
The Court was told that the State informed Mphwiyo of the request to appear before it through his wife who preferred to go to the State offices and collect the notice of the hearing.
A decision on the forfeiture of the residential house was further considered whether it would not affect third parties — it being a matrimonial home — if it was to be forfeited to the Government.
“It should be noted that this court was seized of the matter after the bail was granted and when trial was at an advanced stage,” said Justice Chinangwa. “Thus this court needed to get further and better particulars as to whether the house could be forfeited without affecting the rights of third parties being a family residential home.”
On the analysis of law and evidence, the Judge quoted Section 121 (1) of the Criminal Procedure and Evidence Code, that states ‘When any person is required by any police officer or court to execute a bond, with or without sureties, such police officer or court may, except in the case of a bond for good behavior, permit him to deposit a sum of money or property to such amount or value as the police officer or court may require in place of, or in addition to, executing such a bond; and such amount or value shall be fixed with due regard to the circumstances of the case and shall not be excessive’.
She also quoted Section 121 (2) of the Criminal Procedure and Evidence Code that states: ‘Where any money or property has been deposited in accordance with subsection (1) and it is proved to the satisfaction of a court that the depositor has not fulfilled the conditions upon which such money or property was deposited, the court shall record the grounds of such proof and may call upon the depositor to show cause why such money or property should not be forfeited, and if sufficient cause is not shown or if the court is satisfied that the depositor has absconded or cannot be traced the court may order such money or property to be forfeited’.
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“The reading of section 121 of the Criminal Procedure and Evidence Code quoted above allows a court to forfeit property which was deposited to execute a bond,” said the Judge.
“The forfeiture occurs where the court is satisfied that the conditions upon which the property was deposited have not been fulfilled. In doing so, the court ought to record the grounds proving that the conditions upon which the property was deposited were not fulfilled and may call the depositor to show cause why the property should not be forfeited.”
She thus observed that facts show that Mphwiyo “was the depositor of the property in question [and that] he did not present himself at the hearing to show cause why the property should not be forfeited”.
“This court is informed by the State that the residential home on an official search is solely registered in the name of the respondent. Being a residential family home, this court thought it wise a submission be made to confirm ownership so that the forfeiture would affect the rights of the spouse.
“Section 24 (a) of the Registered Land Act states that the registration of a person as the proprietor of private land shall confer on that person the rights of owner of that land as private land.
“This not being a matrimonial cause of distribution of property, the court — following the official search of the registered owner — finds that the house in Area 43 belongs to the respondent and is amenable to be forfeited the same having been bonded on the respondent’s release on bail.”
“Further, it is this court’s belief that the respondent having been legally represented at the time of his bail application in the year 2014, should have been informed by Counsel of the consequences of absconding bail on the bonded properties.”
Mphwiyo, a key suspect in the Malawi corruption scandal popularly known as Cashgate, has been reported missing since July last year just days before a high court judgment on his case was to be passed in which if convicted, he faced over 10 years in prison.
The former Budget Director in the Ministry of Finance, was once heralded as the man shot in the face because he was fighting corruption.
According to a report in July 2023 by Platform for Investigative Journalism (PIJ), CCTV footage showed Mphwiyo had checked into Ryall’s Hotel in Blantyre after flying in from Lilongwe.
He only spent approximately 10 minutes inside the hotel and was seen on CCTV leaving the hotel on foot and vanished as all his known mobile phone numbers could not be reached.
The report further said on June 26, Mphwiyo’s wife filed a missing person report with Lingadzi Police in Lilongwe and National Police Headquarters spokesperson Peter Kalaya confirmed with PIJ that they had launched an investigation into Mphwiyo’s disappearance and suspected to be escaping from prosecution.
Kalaya told PIJ that their investigations indicated that Mphwiyo boarded a plane and disembarked at Chileka Airport and went to Ryalls Hotel.
Cashgate stunned Malawi as the country’s biggest corruption scandal by the sheer volume of government money that was stolen — estimated at over $100 million, and the melodrama surrounding how the scandal unravelled.
Government employees, businesses and politicians conspired to pay themselves public funds — via mostly fictitious accounts, junior public officials and wads of cash were found stashed in cars and ceilings before the near-fatal shooting of Paul Mphwiyo shocked the nation.
Former Malawi Justice Minister Ralph Kasambara, his associate Pika Manondo and ex-military personnel Macdonald Kumwembe, were later found guilty of participating in the conspiracy for the attempted murder.
Mphwiyo was initially widely believed that he was shot fighting the corrupt barons that plotted Cashgate but the narrative took a dramatic turn when Mphwiyo was arrested on same Cashgate-related charges.
In May 2020, seven years after the Cashgate scandal unraveled, Mphwiyo was found with a case to answer by the High Court.—Additional info by PIJ
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