Suspected shooter of former Ministry of Finance budget director Paul Mphwiyo, Macdonald Kumwembe, has asked High Court judge Michael Mtambo to recuse himself from continuing with the case, alleging bias and that has demonstrated to have a personal vendetta against his co-accused person, former minister of Justice and Constitutional Affairs Ralph Kasambara.
In court affidavit seen by Nyasa Times, Kumwembe, a former Malawi Defence Force soldier, has included a letter dated July 10 2015 addressed to senior deputy registrar at the High Court’s Lilongwe Registry and also attached the Judge’s curriculum vitae (CV).
Kumwembe, who was found with a case to answer on charges of attempted murder and conspiracy to commit murder, has also torn apart Director of Public Prosecution (DPP) Mary Kachale for what he called applying “cheap solution” to apply to court for revocation of his bail.
He wants Justice Mtambo to recuse himself from the case, saying he does not want to be caught in the crossfire of the alleged personal vendetta between Kasambara and the judge.
Again, from reading your CV, one gets the impression that you have a personal vendetta or fight with a fellow lawyer, Raphael Kasambara, who also happens to be one of my Co- Accused persons in this matter.
Kumwembe cited Judge Mtambo’s CV which indicates that he volunteered to represent an impregnated woman who sued Kasambara when he was Attorney General, when all lawyers were afraid to take on a senior government official – the client believed not to be in UK lost the case.
The shooting suspect accused Judge Mtambo of misrepresenting facts and presenting himself as “a modern day Robin Hood” in as far as the dealing of Kasambara are concerned.
“Now, to the extent that I am jointly charged with him [Kasambara] in a case of conspiracy, I can easily see myself being convicted simply because of the bad blood between yourself and Mr Raphael Kasambara. With all due respect, I do not want to be collateral damage in the personal professional warfare between your Lordship and Raphael Kasambara,” reads Kumwembe’s letter submitted to court.
Kumwembe said he do not want to be “collateral damage” in the personal professional warfare between Judge Mtambo and Kasambara.
Kumwembe says another ground calling for Mtambo’s recusal is that the judge allegedly requested for additional security to escort him to Blantyre when he delivered a ruling that Kumwembe, Kasambara and Pika Manondo had a case to answer.
Top prosecutor Kachale told the court that the case was experiencing “mafia like antics”.
But Kumwembe has accused the State led by Kachale of making “pathetic” allegations without any basis.
In his affidavit, Kumwembe accuses Kachale of playing “deliberate gimmick “in seeking his bail to be revoked, saying the application is not made in good faith but as a “countervailing measure” against his application for Judge’s recusal.
Kumwembe also accused Kachale’s attempt to throw into the case the murder of Issa Njaunju of the Anti-Corruption Bureau, saying such assertion is “an irresponsible and unprofessional conduct.”
He said “it is another red herring dropped into the present case to create a negative picture of my co accused and myself so as to attract negative publicity.”
Kumwembe says in the affidavit that he is convinced that the DPP “deliberately took out this motion so as to scare me away from continuing with my application for recusal of the Judge; and at the same time scare my two Co Accused person from supporting or actually joining me in my aforesaid application.”
He argues that the DPP should have addressed her mind to the right to fair trial, Bail Guidelines Act, Criminal Procedure and Evidence Code and case law on the issue.
Kumwembe further state that Kachale should have been aware that “there was no basis at all for moving the Court for revocation of my bail other than as part of her orchestrated strategy to harass, intimidate and muzzle me as an unrepresented accused person.”
Judge Mtambo is set to make a ruling on whether to recuse himself or not, this Friday.
Mphwiyo was shot outside his Area 43 home on September 13 2013 and his shooting led to mass arrests of civil servants and private sector businesspersons linked to Cashgate.Follow and Subscribe Nyasa TV :