Justice Lovemore Chikopa of the Supreme Court of Appeal has suspended a High Court order sentencing Mac Donald Kumwembe to four months imprisonment for contempt of court.
Kumwembe a former Malawi Defence Force soldier on a trial alongside former Justice Minister, Raphael Kasambara, on attempted murder and conspiracy to murder offences respectively was convicted for contempt of court by Justice Michael Mtambo for nterfering with the judge’s privacy.
Suspension of the sentence means that Kumwembe is now on court bail pending an appeal over contempt of court sentencing.
Chikopa says the sentence Mtambo made has various questions.
“When did the alleged contempt occur? Is it on July 23, 2015 when the applicant brought to the attention of the court his letter dated July 10, 2015 together with the attached curriculum vitae? Is it on August 25, 2015 via the notice of motion filed within Criminal Case Number 65 of 2015?
“Or is it on September 1, 2015 when the applicant formally first made viva voce the application for the judge to recuse himself and was cross-examined on his affidavit? Could it have been on September 4, 2015 to which the application was adjourned, the applicant ‘tried’, convicted and sentenced? These are important questions.
They determine whether His Lordship was correct to deal with the applicant
summarily…” the ruling reads in part.
And he added: “The sentence for contempt of court is stayed pending appeal…We are reminded however that the applicant is on bail in the proceedings before His Lordship. There are conditions attaching to such bail which remain valid to this date. We think such conditions are sufficient to protect the stay granted herein.”
However Chikopa refused to stay the criminal proceedings before Justice Mtambo on the grounds that the affidavit had some defects.
On whether Kasambara has a legal right to represent a co accused, Chikopa declined to give any ruling on that saying; “This in our opinion is a matter that should have been put before the Malawi Law Society as the regulatory body and/or the Attorney General as the Head of the Bar.”
However she said this does not mean that courts are not supposed to play a part in regulating the conduct of legal practitioners.
“They do and should. But that should in our view, and as much as possible, be restricted to counsels’ conduct in court and only in those instances where the law says they can.”
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