Supreme Court of Appeal Judge, Dunstan Mwaungulu, has refused to recuse himself in the case which former attorney general Ralphael Kasambara and two other convicts Pika Manondo and MacDonald Kumwembe are fighting for bail pending appeal.
In April, Director of Public Prosecutions (DPP), Mary Kachale, asked Mwaungulu to recuse himself for alleged bias, after he “negatively” commented on a Malawi Law Society Google Group.
The DPP made the application on an impression that Mwaungulu and other members of the Google group commented on Republic vs Kumwembe case and another.
“The comments on the Kumwembe case are not the sole occasion upon which Honourable Mwaungulu, JA, SC, has commented on the matter of bail pending appeal. The Honourable Justice of Appeal has commented at length on several exchanges on the issue, including commenting on a judgment of a fellow justice of appeal in the case of Makiseni v Republic,” reads part of the affidavit filed by the DPP.
According to Mwaungulu, the DPP misunderstood the comments and that misconstruction cannot be used for requiring a judge to recuse himself.
“This is, therefore, not a case of automatic disqualification or recusal. At most, it is a case of apprehension or possibility of bias. In this respect, therefore, there must be proof of conduct for such apprehension or possibility. A fair-minded observer once informed that such pronouncements cannot base disqualification or recusal cannot, without more as to language or tone, find that there is a possibility or apprehension or bias in this matter. The application for recusal is, therefore refused,” reads part of the judgment.
After the judgement, Lusungu Gondwe, lawyer representing Kasambara and his co-convicts, proceeded with bail application.
“Putting myself in the shoes of the applicants who have travelled from Zomba, they do not have to travel another day when all the parties are ready with their arguments. Any adjournment is a delay, a day in prison is a day too long. I therefore ask that we should proceed at 3 o’clock today,” he said.
However, both Kachale and Mwaungulu said they were not ready to proceed with the case and it has since been adjourned to September 21, 2017 as the day to commence hearing of the bail pending application.
“I said we were not ready because we were told we are coming for judgement [on the recusal], so we did not bring our files,” Kachale said.
Kasambara was convicted of conspiracy to murder while Kumwembe and Manondo were convicted of attempted murder and conspiracy to murder.
In the notice filed through Lilongwe District Registry, a day after their conviction, Kasambara and fellow applicants argue that High Court Judge Michael Mtambo erred in law and fact in holding that the prosecution had made out a case to answer for them when the prosecution had failed to prove it.
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