The chief resident magistrate in Malawi’s capital Lilongwe has ruled that South African witnesses in the extradition hearing in Malawi of evangelical preacher and self-styled “prophet”, Shepherd Bushiri, and his wife Mary, may give evidence in a South African court.

The many witnesses in South Africa would not have to travel to Malawi to be physically present in court when they testify, chief resident magistrate Madalitso Chimwaza said on Monday.

She said she had applied to the Malawi High Court to issue an order for the witnesses against Shepherd Bushiri, head of the Enlightened Christian Gathering church and his wife to testify in a South African court.

This was the latest move in a legal ping-pong match that has been going on since June 2021 between the Bushiris and South African and Malawian prosecutors over the issue of whether the witnesses may testify in a South African court.

The Bushiris jumped bail in South Africa in November 2020 and fled to their home country of Malawi after being indicted for a string of financial offences in South Africa, including theft, fraud and money laundering, as well as jumping bail and leaving South Africa illegally. Shepherd Bushiri in addition faces several charges of rape, including of girls as young as 16.

South African and Malawian prosecutors asked the Malawian courts last year to allow the many witnesses against the Bushiris in South Africa to testify remotely, either by video conference call or by giving evidence in a South African court.

The Bushiris’ lawyers opposed this, saying the witnesses must come to Malawi to testify in person. The Lilongwe Magistrates’ Court originally agreed with them, but after a successful appeal to the high court by prosecutors, chief resident magistrate Chimwaza ruled on Monday that the witnesses could testify in a South African court.

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 Option to appeal

She applied to Malawi’s high court for an order that the witnesses should give evidence in South Africa, as only the high court can issue such an order.

Chimwaza adjourned the matter for 90 days to facilitate this process and also declared that both sides could appeal to the high court against her decision.  This means it is likely that the extradition of the Bushiris to South Africa, if it happens at all, is at best still many months away.

Chimwaza made it clear in her judgment that Malawi’s Criminal Procedure and Evidence Code, its Extradition Act and its Evidence by Commissions Act all allowed evidence in court cases in Malawi to be heard in courts outside the country, if this was necessary.

She said her court was “of the strong view” that the Bushiris’ extradition hearing was an appropriate case for the testimony of witnesses to be recorded in a South African court and for the records to be transferred to the Malawi courts.

This was because all the witnesses to the extradition hearing were outside Malawi, in South Africa. It would thus be “inconvenient, taxing, very costly, unreasonable or inexpedient” to require the witnesses to travel to Malawi.

She added that the court had also considered that some of the witnesses were to sexual offences and so it would not be reasonable or expedient to make them travel to Malawi to testify, “as it would expose them to further trauma and embarrassment”.

She noted that the interests of the Bushiris would still be protected as they were entitled to appoint lawyers in South Africa to cross-examine the witnesses when they testified there. DM