Chasowa murder case: Malawi Chief Justice ponders on recusal

Chief Justice, Andrew Nyirenda is contemplating on whether to recuse himself from certifying a Constitutional review on the application by two of the suspects in the murder case of Polytechnic student, Robert Chasowa who want to be discharged from the case.

Chief Justice Nyirenda

Chief Justice Nyirenda

Doff Bottoman and Peter Petros through their lawyer Ambokire Salimu applied to the High Court in 2013 to be discharged from the criminal proceedings on ground that the delay by the State in prosecuting them is unconstitutional.

Justice Nyirenda, who is expected to certify Constitutional proceedings on the application, on Wednesday sought views of the State and the applicants’ lawyer, Ambokire Salimu, on whether to recuse himself from the case to avoid his determination on the matter to be deemed bias as he once chaired the Commission of Inquiry on Chasowa’s murder.

But both the State and Salimu argued that there was no evidence to prove that the Chief Justice was likely to be bias on his decision on whether to endorse the Constitutional review despite his involvement in the inquiry.

Salimu also argued that as Chief Justice, Nyirenda is the only one mandated to hear and certify the application as required to by Section 9 (3) of the Courts Act.

“The court cannot act on speculations, and there is not any evidence to prove there is likelihood of biasness. And on the other hand the Chief Justice, if he decides to recuse himself, cannot delegate the matter to any other judge based on Section 9 (3) of the Courts Act,” argued Salimu.

Justice Nyirenda is expected to make his decision by next week as the matter resumes for hearing.

Application to be Discharged

Bottoman and Petros who were arrested on July 17th, 2012 and charged of Chasowa’s murder before were released on bail in October same year, want to be discharged from the criminal proceedings, arguing that the State has failed to provide evidence to incriminate them in the murder case, which has failed to go for trial despite government once instituting a Commission of Inquiry that implicated several ruling democratic Progressive Party (DPP) officials.

The application for an order to be discharged was expected to go for constitutional review following  the State’s protest that the two could not be let free based on Section 302A of the Criminal Procedure and Evidence Code, which doesn’t allow accused person charged with an offence whose maximum sentence exceeds three years.

The State argued that it was failing to commence trial as the case is “very complicated and resource consuming” such that it is yet to finalize investigating the matter- three years after Chasowa’s death.

According to lawyer Salimu, there was a need for the Constitutional review to decide on the interpretation and application of the provisions of the Constitution as Section 302A of the Criminal Procedure and Evidence Code was inconsistent with Section 42 (2) (f) (i) of the Constitution which entitles every person arrested or accused of alleged offence to a fair trial within a reasonable time after having been charged.

“In terms of Section 5 of the Constitution, Section 302A of the Criminal Procedure and Evidence Code is invalid to the extent of such inconsistency. The Constitution provides for fair trail, but if we are to go by the raised Section, then it means an accused person can stay for life without being tried, which based on the provisions of the Constitution, is unjust.

“Failure to prosecute the accused person within reasonable time must attract consequences, including discharge. My clients are being denied their right to be discharged this why we are seeking Constitutional review to ensure justice prevails,” argued Salimu.

According to Section 5 of the Constitution any act of Government or any law that is inconsistent with the provisions of the Constitution shall, to the extent of the inconsistency, be invalid.

In October, 2013 Justice Kenyatta Nyirenda who has been handling the case forwarded the matter to the Chief Justice, the Anastasia Msosa, for certification of the proceedings as Constitutional.

However, Msosa sent back the file to the Justice Kenyatta without giving any reasons. Msosa did not indicate whether she has certified the constitutional proceedings or not as required to by Section 9 (3) of the Courts Act.

Meanwhile the two accused are waiting for Justice Nyirenda to decide their fate in the murder case which remains to be unsolved mystery.

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Kenkkk
Guest
Conflict of interest is more important than bias. In any free democracy the Chief Justice would not handle this case now. He has to recluse himself. This will also send a clear signal to all lawyers in the country that conflicts of interests amongst the judiciary will no longer be tolerated like what is happening in the chaotic cashgate cases. The Chief Justice should pass his files Of the case to whoever will be appointed to finish off this case so that justice is eventually served. I know dpp gurus would like to see the Chief Justice recluse himself and… Read more »
Peter Mbewe
Guest

Bwana, this started in 2012, then came 2013…….2014…….2015…………………. perpetuity…….
Please do not recuse yourself as you are one of the very few people who can hear matters, adjudicate them and give your final view. Your predecessor, the old auntie was so useless that she could not do the job. Please do not let us down and allow this very important matter land up somewhere where it is going to remain and eventually die a “natural” death unlike Chasowa who was brutally murdered by the cadres

mwana wapamaji
Guest

The blood of Chasowa will never stop crying as the blood of abel. wokupha nayenso will face the same fate just wait we will comment shortly dikirani wokupha ndi lupanga azaphedwa ndilupanga lake lomwelo.

clement
Guest

When judges start fearing cases, and when criminals start shopping for judges, know that justice will be miscarried. We hav numerous murder suspects in our prisons who hav never seen the corridors of courts but hv not asked for “acquittal”. Inuyo nde mwapambana chani?

sayimoni bayisikolo
Guest

Somebody somewhere has the info how this Robert Chasowa was killed and you are enjoying blood money with your families.You don’t know you are passing generational curses in families.They are people who knows the whole truth and shielded by evil politicians who are hungry for blood money.That was some body’s son,brother,boyfriend.Mulungu akukanthani pansi pompano.Anthu otembeleledwanu okonda chuma chamagazi.

Masoambeta
Guest

Another corrupt judge. Chancellor college graduates. Always settling for low class. Fourth world education.

Nzeru
Guest

Anthu opanda nzeru inu. Mmene Dr Joyce Banda adali pampando monganso wa chipani cha PP bwanji simudamupatse pressure yoti nkhani iyi aitsate mwamsanga? Since you dont trus DPP led governement, why do you expect any progress on this issue? Why were you silent during JB government? Why? I thought that was the best time for you?

nyau dancer
Guest
Arrest the master minder first. We are tired of seeing the list of those implicated in this murder case. The Masangwis and other dpp members have been linked to this case since the begining. Take them to task. No need for reviewing this and that. Waste of time and taxpayers money. If you have failed then tell Malawians that you have failed.Human blood is not like a chicken blood. Those having Chasowa’s blood in their hands will have no peace. You can hide on earth but you will not manage to hide in the presence of the almighty. Judgement day… Read more »
Kholophete
Guest

Hey Mr. Nyirenda make haste to put these bastartds in the name of Botomani behind bars. He and his colleagues murdered Chasowa no doubt about this. Please conclude this issue fast so that his parents can be vindicated. Atleast just be done. Bwanji kodi nanunso a Nyirenda? Pokusankhani u Chief Justice si ndiye kuti ndinu dolo? Dont give us reason to doubt your credibility now iyaa!!!

abale
Guest

The truth on chasowas death must be uncovered,we know he was killed by dpp thugs,but we wanna see them punished,sooner or later justice will be done,after that,we will deal with the 20 July murder of 20 people by dpp

wpDiscuz

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