TWISTS continue in the case where three men are accused of attempting to murder former Budget Director Paul Mphwiyo with the latest being the State’s application for Macdonald Kumwembe’s bail revocation and Kumwembe applying for Judge Michael Mtambo’s recusal.
Kumwembe, a former Malawi Defence Force (MDF) soldier and businessman Pika Manondo have charges of attempting and conspiracy to murder Mphwiyo hanging over their heads while former Justice minister Raphael Kasambara is answering a charge of conspiracy to murder.
When the High Court reconvened in Lilongwe yesterday, Director of Public Prosecutions (DPP) Mary Kachale argued that Kumwembe was proving to be a security threat to the judge, hence the need for his bail to be revoked.
On the other hand, Kumwembe wants Mtambo to recuse himself from hearing the case, arguing that the judge’s continuation would deprive the accused his right to a fair trial.
And to the State, some of the issues that Kumwembe is premising his recusal application on are the very reason his bail has to be revoked.
Kachale said: “He [Kumwembe] served the State with a document and after we read one of the things that he said, we consulted State authorities to verify. I need to say for [the sake] of the public that the document is saying that after the judge made a ruling of case to answer, he requested for extra security.
“[Kumwembe] even goes as far as mentioning the police officer who escorted the judge to Blantyre. But our investigations—and we have filed affidavits with the Court— show that the judge did not request for state security.”
The DPP added that it is the State authorities that provided the judge with extra security after assessing the situation, saying “in fact the judge had already left the court premises when he was told he needed security.”
According to Kachale, the State’s application for Kumwembe’s bail revocation is partly based on the fact that he monitors the judge’s movements, a thing which she argued is a security threat to Mtambo. “He even mentioned the name of the police officer who escorted the judge.
He even knows the officer had a gun with him. So we have made an application [for bail revocation] that will be heard on Friday [ September 4]. “The judge has also said on Friday, we should respond to [Kumwembe’s] application for recusal. On this one, we will respond later,” said Kachale.
In his application for Mtambo’s recusal, Kumwembe further argued that, among other things, his assessment of the judge’s Curriculum Vitae (CV) shows that he is very likely to be biased against him. Said Kumwembe in an interview:
“At first, I had no reason to ask the judge to recuse himself because well-wishers had not given me his CV. Now, after seeing his CV, I see that he is likely to be biased. His 2014/15 CV shows that he said the case of Mphwiyo’s shooting is related to Cashgate, yet Mphwiyo himself denied that. “In this case, I am worried that my case will be handled in relation to Cashgate while that is not the reality on the ground. His CV further shows that he handled an FDH Bank case involving [Thom] Mpinganjira and another shareholder from Zimbabwe. He ruled in Mpinganjira’s favour and Mpinganjira is in his CV as a referee. In this case, I don’t think he is an impartial judge.”
During the hearing, Mtambo blocked Kasambara and Manondo’s attempt to join Kumwembe’s application for recusal “through the back door”.
He also warned that any late submission of applications will not be entertained after noting that Kumwembe had only submitted his application for recusal the previous day.
Mtambo further ordered Kumwembe to provide the State with details of his address after Kachale complained that getting hold of the accused was becoming difficult as it was only done through the telephone. Meanwhile, Kumwembe has named seven individuals— including former president Joyce Banda, politicians Friday Jumbe and Hophmally Makande—as his witnesses. He said of Banda:
“The issue is unnecessarily dragging because of her. Banda said she knows who shot Mphwiyo and I believe once she testifies, the matter will be put to rest… She has never had a mental problem, so there is reason to believe what she said.”
The case has since been adjourned to Friday when the Court is expected to hear the State’s application for bail revocation and its response to Kumwembe’s application that Mtambo should recuse himself apart from setting a date when the accused must start defending themselves.
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