The Lilongwe Magistrate’s Court in Malawi will on Friday rule on an application by self-proclaimed prophet Shepherd Bushiri and his wife Mary to refer the issue of the SADC Protocol to the Constitutional Court.
Their lawyer, Wapona Kita, confirmed these details to News24 on Monday morning following court proceedings.
On Monday morning, the pair appeared in the court where Kita informed the court of two applications; one to dismiss the extradition request from South Africa, and the second about committing the extradition matter to the Chief Justice because it is Constitutional in nature.
The defence asked the court to refer the matter of the SADC Protocol [which SA’s extradition request is based on] to the Constitutional Court as it, “… is a treaty and not domestic law”.
Kita argued that this is because Malawi did not ratify the SADC Protocol, nor did it create an act of Parliament that domesticates the treaty.
Kita further requested that having received the determination, the resident magistrate should throw out the extradition request.
When News24 previously probed Kita on what warranted this application, he responded: “It is on the grounds that the SADC (Southern African Development Community) protocol is not part of the laws of Malawi and therefore cannot be used; as a legal basis for extradition.”
When approached again on Monday morning on whether he was using Stalingrad tactics to delay the hearing of the inquiry, he responded: “We are only doing that which the law allows us to do.”
However, the State argues that there is a treaty between South Africa and Malawi from 1972 and the SADC Protocol of 2002.
Director of Public Prosecutions, Steve Kayuni, further stated that one of those treaties has not been domesticated, but noted that, “… the local law of Malawi is supreme to any treaty”, adding that the extradition act of Malawi is the one that should guide any extradition case.
The extradition hearing began on 8 March, but has been met with several delays due to applications and issues raised by the defence.
Bushiri and his wife, Mary, are wanted in South Africa on fraud and money laundering charges to the tune of R102 million.
They, however, fled the country to their homeland just a few days after the Pretoria Central Magistrate’s Court granted them bail of R200 000 each under strict conditions.
South Africa subsequently sent a formal extradition request to Malawi, received by the Malawian government in December.