Judge Mtambo details how he reached guilty verdict on Kasambara: Releases copy of judgement

High Court Judge Micheal Mtambo who was criticised for withholding the copy of his ruling  that he  delivered convicting  a former justice minister and two others of conspiracy to murder a former Ministry of Finance budget director in 2013, has finally released the copy of the judgement and it has detailed his reasons for reaching a guilty verict.

Raphael Kasambara was accused of conspiring to murder Paul Mphwiyo, while former Malawi Defense Force soldier Macdonald Kumwembe and businessperson Pika Manondo faced charges of attempting to murder and conspiring to murder.

In his copy of the ruling, Mtambo explains that gun shot survivor Mphwiyo testified that he was afraid to reveal that Kasambara was responsible for his shooting because he was a powerful and feared person.

He  noted that Mphwiyo wanted to organize security for himself before he could reveal the involvement of Kasambara as his mother had been attacked soon after he was shot.

“ It is the further submission of the DPP( Director of Public Prosecution, Mary Kachale)  that the [Manondo] is an extension of [Kasambara] and that is why his involvement was also not disclosed earlier,” the judge stated.

He placed his reliance on the case of The Republic v Shabir Suleman, Criminal Case Number 114 of 2003 for the proposition that delay to report does not deprecate the witness’s testimony.

“ On my part, I can only note that at one point during the trial, the 3rd accused [Kasambara]  through the 1st accused  [Kumwembe] took out a Notice of Motion for recusal of the judge which had a letter attached. In that letter, it was stated that everyone including lawyers were aware that the 3rd accused [Kasambara] was a powerful person and the 1st and 3rd accused were not amused that the sitting judge did not have that perception.”

Mtambo said the application for recusal “was clearly calculated to intimidate”  the  trial judge.

He also noted that durin trial, Kasambara was incensed with the DPP Kachale and accused her of causing the revocation of his bail. The court had to ask  deputy chief prosecutor Enock  Chibwana to sit in between Kasambara and Kachale in the judge’s chambers.

And he said in open Court, Kasambara  said if it was outside Court, he would have slapped the Kachale.

“ This conduct was clearly calculated to intimidate the DPP.  One would therefore understand Mr. Mphwiyo’s explanation for not mentioning the names of the 2nd and 3rd accused at the earliest opportunity,” Judge Mtambo said in his ruling.

Rebuttal and  surrebuttal  Evidence
Mtambo said he gave leave to the state to introduce rebuttal evidence with respect to a claim by Kumwembe  in cross examination that his phone was being used by Luciano Chiumbuzo while he was out of the country in Mozambique.

“Initially, he had stated that Luciano Chiumbuzo was his cousin, being a son of a sister to his mother. However, it later transpired that there is no blood relationship between the 1st accused and the Chiumbuzo family.

“ I also gave leave to [Kumwembe] to call surrebuttal evidence. Luciano Chiumbuzo denied the assertions by [Kumwembe] and stated that he was not in Malawi on the 13 and 14 September 2013. He was in the Republic of South Africa. His testimony was corroborated by that of his brother Peter who was living in Zomba at the same time. Neither Luciano nor Peter were challenged in cross examination by [Kumwembe] about the truthfulness of their statement,” state  Mtambo.

Mpinganjira, Makande untruthful witnesses

Judge Mtambo also weighed in on the testimonies of politicians Brown Mpinganjira and Hophmally Makande, branding them untruful witnesses.

Mpinganjira who was mentioned by Mphwiyo to have told him that Kasamaba had said that he had given Mphwiyo two days to live if he did not comply with the demands to make the payments was subpoenaed by the Court to testify.

“On the scheduled day for his testimony, he asked to be given time to organize security for himself and his family because he was receiving threats soon after it was learnt through public media that he was subpoenaed to testify against  [Kasambara]. When he eventually came to give evidence, he denied that he was aware of any threats issued by [Kasambara] to Mr. Mphwiyo. I found Mr. Mpinganjira to be an untruthful witness and that he had given evidence that was intended only to ensure his safety and that of his family,” said Judge Mtambo.

Makande also testified that it was not true that he conveyed a message to Mphwiyo that  Kasambara was making threats on his life.

“ I also found Mr. Makande to be an untruthful witness. When giving evidence purportedly as a witness for [Kumwembe], he was, through the tactic of cross examination by [Kasambara]  who was in reality the person he was testifying for, made to give evidence exonerating  [Kasambara].

“For instance, at first, he testified that he was put in the same cell as Mr. Mphwiyo after Mr. Mphwiyo had testified and that Mr. Mphwiyo was just speaking to himself in a cell and he did not pay attention to what he was saying. Yet he was made by [Kasambara]  to eventually say that Mr. Mphwiyo was saying that the matter about implicating of [Kasambara] was the work of then Deputy Inspector of Police Bophani,” stated the judge.

Ancillary and diversionary issues

Mtambo pointed out that the accused persons raised several “ancillary issues which were only intended to divert the Court’s focus” from the case at hand so that the trial could be reduced to a circus.

The issues were: that the state was persecuting as opposed to prosecuting them; that there was misconduct by the police and the DPP in trying to frame Kasambara , concealing relevant evidence, and having Chalunda released before serving his sentence without a court order so that he could testify against them; that there was Closed Circuit Television (CCTV) footage at the Mphwiyo residence which could reveal the real culprits; and that Mr. Mphwiyo may have been shot due to an arms deal gone bad.

“ It is noteworthy that the former DPP is on record as stating that the state dis not have any such CCTV footage. And the issue of the alleged arms deal was introduced by [Manondo] after Mr. Mphwiyo had testified. He was not confronted with it.

“ It is my view that the job of this Court is to consider whether on the evidence, the essential elements of the charged offences have been proved by the state beyond reasonable doubt and not to go astray on a frolic. Otherwise these proceedings would have been adjourned to conduct mini trials on the alleged misconduct of the police and the DPP. That would have degenerated into substituting the accused persons with new accused persons, which would not be in the interest of justice,” stated Mtambo.

Disposal 

The trial judge stated that a fter analyzing the law and evidence,  he  came to a conclusion that the state has made out its case of conspiracy to murder against the three accused persons and attempted murder against  Kumwembe and Manondo  “beyond reasonable doubt.”

He said the evidence of guilty was reached even if the rebuttal and surrebuttal evidence is excluded and even if the identification of Manondo accused by Mphwiyo on the night of 13 September 2113 is looked at skeptically.

“The remaining evidence, although mostly circumstantial, is strong enough to convict. With regard to [Kumwembe], the description of him as being a tall and slim young man, corroborated by other prosecution and defence evidence discussed in this judgment, places him on the scene of the crime at the material time.”

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