Robert Chasowa murder case hits snag
Justice is set to delay further in a case in which at least 12 people, including Geofrey Doff Bottoman and Peter Petros Tembo, are being accused of murdering Fourth Year Malawi Polytechnic student Robert Chasowa, following Chief Justice Andrew Nyirenda’s decision to recuse himself from the case.
In his ruling delivered in the Supreme Court in Blantyre on Friday, Nyirenda said he arrived at the decision because he chaired the Commission of Inquiry into Chasowa’s death.
The ruling followed an application by Bottoman and Tembo for judicial review of the case after noticing that the issue had stalled for a long time.
Interestingly, the Constitution vests the responsibility of certification of a referral only in the Chief Justice.
“I have no doubt that this far, we can already see the predicament in which I find myself. Having presided over the Commission of Inquiry, I am obviously not suited to preside over the present application. On the other hand, the law, clear as it says, vests the responsibility of certification of a referral only in the Chief Justice,” reads the ruling in part.
It adds: “The recommendations that were made following the Commission of Inquiry are still vivid in the public domain.
“While I could be convinced myself that I would live up to my oath of office to administer justice without fear, favour or prejudice, in accordance with the Constitution and the law, it is less than likely that fair-minded and informed observers, having the facts and the background of the matter, would conclude that I proceeded without a reality of bias.
“Even if I was as impartial as I could be, nevertheless if fair-minded persons would think, in the circumstances, there was a real livelihood of bias, I should give way.”
High Court Judge, Kenyatta Nyirenda, sent the case to the Chief Justice mid last year for certification after Bottoman and Tembo’s lawyer Ambokire Salimu applied for a judicial review following the State’s failure to move the case.
The Commission of Inquiry, which Nyirenda chaired, came up with names of suspects in the case among them Democratic Progressive Party Director of Youth Lewis Ngalande, police officer Stanford Horea, boxing promoter Mike Chitenje, Botoman, Samu Chulu, Stoni John, Frank Julius, Harry Makina, Chikondi Namwera, Issac Osman, Elias Phiri and Petros Phiri.
The inquest found that Chasowa, 25, a critic of the former President Bingu wa Mutharika, was allegedly murdered and did not kill himself as police had earlier indicated.
Chasowa’s body was found in a pool of blood at the Malawi Polytechnic campus in 2011.
When contacted yesterday to comment on the turn of events in the case, Malawi Law Society president, John Suzi Banda, asked for more time to consult his colleagues on the matter. But when called again just before going to press, Banda did not pick our calls.
Meanwhile, Chancellor College constitutional lawyer Edge Kanyongolo described the situation as a technical matter requiring a serious look into the law before commenting.
But Blantyre-based lawyer Justin Dzonzi said the situation shows that framers of the Constitution did not anticipate that the Chief Justice at some point could find himself in such a situation.
He said proper drafting of the law should have taken care of the situation by putting in the necessary provision.
“Under administrative law, if a person without mandate makes a decision, we say whatever decision is made is null and void. So, it is possible for someone to bring a judicial review challenging the exercise of those powers by a person who is not entitled to exercise those powers,” said Dzonzi.
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