Kasambara claims conviction is miscarriage of justice: Malawi ex justice minister to appeal, says Judge Mtambo ‘compromised’

 

Former Minister of Justice Raphael Kasambara has said he is a victim of “miscarriage of justice” for his conviction on charges of conspiring to murder the country’s former Budget Director Paul Mphwiyo, indicating he will lodge an appeal at the Supreme Court of Malawi.

Kasambara was found “guilty” by Judge Michael Mtambo on conspiracy to commit murder together two others, former Malawi Defence Force (MDF) soldier Macdonald Kumwembe and businessman Pika Manondo who were charged with attempted murder.

But speaking to a battery of newspersons after his conviction, Kasambara maintained his innocence, saying his conviction is as a result of “miscarriage of justice”, pointing out that the trial judge Mtambo was “compromised”.

Kasambara said he is going to appeal to the Supreme Court against his conviction.

But prosecutor Enoch Chibwana said the Judge was “neutral and the ruling is fair”.

In his ruling, the judge indicated that on the charge of attempted murder, he had found the two accused Pika Manondo and MacDonald Kumwembe guilty of the charge.

In the second charge of conspiring to commit murder, the judge also found the two plus the former minister guilty.

Law analysis

A law expert who has been following the case and attended the judgement told Nyasa Times
that a conspiracy charge is usually brought due to a lack of evidence for a substantive offence, it is often complicated and difficult to prove.

“It must be shown that the conspirators agreed on a course of conduct involving an act or omission by at least one of them which is prohibited by the criminal law, knowing or intending that a criminal act will be taking place as part of the course of conduct or as part of the agreement.

“Even if evidence of one of the conspirators does exist, the reliability of that evidence will be open to question.”

The law expert who asked not to be identified punched some holes in the case of Kasambara and two others.

He pointed out that Judge Mtambo’as acceptance of the number of assailants lacked basis as he noted only Mphwiyo saw the said assailants.

The Judge said the first accused fits description of ‘small young man at the scene’ and the law expert  pointed out that eye witness evidence is “unreliablewithout collaborating evidence.”

The lawyer also observed that Judge ruled that the passport stamps by Kumwembe is not an alibi, wondering on which ‘expert evidence’ did he rely on to prove otherwise.

He also wonders on which basis Judge Mtambo concluded that Mphwiyo never saw Manondo at the scene of crime.

Judge Mtambo in his ruling also said the call logs were not enough in the absence of further evidence and the law expert wondered  what other evidence has the state provided other than the call logs which are unreliable to say the least.

“The Judge has evidently relied on call logs which did not place Kasambara anywhere near the scene of the crime. The State’s case appears to be circumstantial,” noted the law expert.

“The State has not proven its case beyond reasonable doubt. Too many holes in the State’s case. Too many unanswered questions. The defendants should appeal their conviction to Supreme Court,” he stated.

Attempted murder attracts a maximum sentence of life imprisonment, while conspiracy to murder attracts a maximum sentence of 14 years imprisonment with hard labour.

Mphwiyo was shot outside the gate of his area 43 residence on 13 September, 2013 in what many believe is what led to the uncovering of cashgate, the systematic looting of huge sums of money from government coffers by some civil servants and politicians.

The date of the sentencing has not been indicated.

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