By Suleman Chitera
Attorney General Frank Mbeta has launched a forceful legal counterattack against a High Court decision that opened the door for Malawi Congress Party (MCP) Secretary General Richard Chimwendo Banda to challenge his arrest and detention.
In a preliminary application filed before the High Court Civil Division, Mbeta is seeking to discharge the leave granted to Chimwendo Banda to pursue judicial review proceedings and to set aside all interim reliefs arising from that decision. The move, if successful, would effectively collapse the case before it is heard on its merits.
Mbeta, appointed to represent the respondents—the Malawi Police Service and the Director of Public Prosecutions—argues that the court should never have entertained the judicial review in the first place.
In a sworn statement, the Attorney General contends that Chimwendo Banda failed to exhaust alternative remedies available to him under the law. Central to Mbeta’s argument is habeas corpus, a long-established legal mechanism designed to directly and summarily challenge unlawful detention.
According to Mbeta, habeas corpus was not only available to Chimwendo Banda but was the most appropriate remedy, rendering the judicial review application premature, defective, and legally unsustainable.
The application sets the stage for a high-stakes legal confrontation that goes beyond procedural technicalities, touching on fundamental questions of access to justice, police powers, and political accountability.
Meanwhile, Chimwendo Banda’s lawyer, Khwima Mchizi, said that he had not yet been served with the application filed on behalf of the respondents, raising questions about timing and strategy as the hearing date looms.
The legal battle follows last week’s dramatic intervention by High Court Judge Kenyatta Nyirenda, who ordered Chimwendo Banda’s immediate release from remand prison, where he had been held following his arrest. Judge Nyirenda subsequently scheduled an inter partes hearing for 23 January, a session now expected to determine whether the case proceeds—or is struck out entirely.
With the Attorney General seeking to shut down the judicial review at the threshold, and the MCP’s powerful secretary general insisting on his right to challenge the legality of his detention, the case is rapidly shaping into a defining test of Malawi’s rule of law, particularly in politically sensitive arrests.
All eyes will be on the High Court as it decides whether Chimwendo Banda’s challenge is a legitimate quest for constitutional protection—or a case the state insists should never have reached the courtroom.
