Of Judge Mtambo’s refusal to recuse himself in Mphwiyo shooting case: Law-journal column on Nyasa Times

Th doctrine of judicial recusal states that a judge may recuse himself from proceedings if he decides that it is not appropriate for him to hear a case before him. A judge must therefore step down in circumstances where there appears to be bias or ‘apparent bias’.

High Court Judge Michael Mtambo

High Court Judge Michael Mtambo

The test for determining apparent bias was set in the House of Lords decision in Porter v Magill [2002] 2 AC 357 at par 102, and states as follows: ‘‘whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased, the judge must recuse himself’’. It has to be stressed that the test is to be applied having regard to all the facts of the case in question.

The judiciary must ensure that it remains independent at all times and that it is seen to be independent of any influence that might reasonably be perceived as compromising its ability to judge cases fairly and impartially. ‘‘Not only must Justice be done; it must also be seen to be done.’’ This was stated in a leading English case R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256. The case set the precedence in establishing the principle that mere appearance of bias is sufficient to overturn a judicial decision.

The main reasoning behind judicial impartiality is so that the public at large can have confidence that when they appear before a judge their case will be heard fairly and impartially. The legal system, any legal system, is and must be a central social good in any successful society, state. Thus its substantive, as well as apparent, integrity, without question, is crucial. It is for this reason that the judiciary must do everything possible to maintain the wider society’s trust and confidence in the justice system. And even more so in the justice system in Malawi where there are long-running whispers of ‘judicial influence’ or ‘judge shopping’.

Kumwembe’s assertions

It has been reported that Kumwembe accused Justice Mtambo of apparent bias because of his history with one of the accused and that Justice Mtambo already treats Kumwembe and his co-accused as ‘violent criminals’. In my view it does not matter how the Honourable Judge’s CV found itself in the hands of Kumwembe.

The issue at hand is that Kumwembe raises a serious allegation of apparent bias before a judge who will decide his fate and that of his co-accused in the trial. That alone is reason enough for Justice Mtambo to step aside and let another judge hear the case.

It ought to be said that the concept of bias includes any personal interest in the case or friendship with the participants, but it also extends further to any real possibility that a judge would approach a case with a closed mind or, indeed, with anything other than an objective view; a real possibility in other words that he might in some way have ‘‘pre-judged’’ the case. It can therefore be argued that the accusations that Kumwembe makes raises the very question as to whether Justice Mtambo can ‘objectively’ continue to preside before this case.

 The finding of contempt

Given the allegations raised by Kumwembe against Justice Mtambo should Justice Mtambo have stepped aside and let a neutral judge decide on the issue of contempt? In my view he should have stepped aside for the sake of impartiality and transparency. Of course judges shouldn’t just recuse themselves over every allegation raised against them but I would argue that in these circumstances it was the right course of action to take.

Justice Mtambo could have done the justice system a great service by stepping aside to let another judge decide on the contempt issue. This in my view could have served two purposes, to maintain public trust and confidence in the judiciary and secondly to remove any shed of doubt regarding his alleged bias.

He would then, depending on the findings of a neutral judge, have continued to hear the case in the event that the neutral judge found Kumwembe in contempt. This was an opportunity missed and one fails to see how a neutral observer can have confidence in Justice Mtambo hearing this case going forward.

As a consequence, his continued hearing of the case and its eventual outcome will forever overshadow the decision the hounorable judge made in the recusal hearing.

Follow and Subscribe Nyasa TV :

Please share this Article if you like Email This Post Email This Post

More From Nyasatimes

More From the World

33 thoughts on “Of Judge Mtambo’s refusal to recuse himself in Mphwiyo shooting case: Law-journal column on Nyasa Times”

  1. footsoldier says:

    You opened you article with “..if the judge decides that it is not appropriate for him [her] to hear a case before him [her] [a judge faced with circumstance(s) where a any reasonable person with sufficient knowledge of all the facts of the case and the circumstances] must step aside fearing appearances of apparent bias or actual bias”. The learned judge having considered everything has decided that it is not appropriate for him to recuse himself from the case and you are claiming that was a wrong decision without proffering concrete evidence why he should not have made such a decision?!!! You are the one who is not making sense by not giving ‘a complete case’ if indeed there is one. To you, the only way the learned judge would have ‘complied’ with the provision was by recusing himself and feel that is the only way he would have advanced justice. Very warped view of justice. Good law requires a measured application of good dosages of common sense and unencumbered reasoning.

  2. Cymru says:

    The story does not have strong arguments to prove that the judge erred. The author must be an interested party especially on the side of the accused.

  3. Billiat says:

    Who’s the author of this article? Kasambara uyu

  4. Alungwana says:

    I wonder why these judges call the accused ‘mafias’ before they prove them. The fact that they are named mafias, it shows that these judges already have negative perception towards them hence the mafias cant defend themselves and being heard.

  5. Bubu says:

    Suppose that Kumwembe in question was a certain mad man, crooked and an intelligent cheat. He is not but just assume, he was.

    Is the court bound to always accept such assertions and change judges solery on the account of the accused?

    Does the court have any role to analyse the assertions (as Judge Mtambo did) and in the end make a decision (a BIG NO decision or YES to change).

    OK, if one was allowed to influence change of judges like that, how would it be brought to a stop? after changing 10 judges? or until one has a judge with likehood to rule in his or her favour?

    I always thought that courts are there to make decisions (after analysis) and not just bowing to assertions?

    Iam glad I did not learn law. I could not accept to be this dull.

  6. vin mongu says:

    kumwembe and his team want to plead innocence when they are violent people. they want judge shopping and they want to influence the result, where in the world will that be justice. the way i know mtambo he is moving no inch and if he dies then we know you have a hand kumwembe. when he started hearing your case you were quiet but when he found you with prima facie evidence — now is the right time to get him off? the guilty verdict is just now obvious. There is justice in Malawi with Appeals Court, three judges will hear your case after all. Kudos to Justice Mtambo! You are one guy who makes feel that Malawi has something to show for fruitless labours.

  7. Leti says:

    Judge shopping ya Kasambara iyi, we all know he is trying all the tactics to corner and exert pressure on the honorable judge to recuse himself, what is he afraid of? Mtambo Sir carry on , we are praying for you, no evil formed against you by this evil man shall prosper!

  8. Mbiri says:

    You openeed your argument well “a fair minded etc.” now should fair mindedness be only to the those requesting the judge to recuse themselves? What about also a fair minded judge who should hear the recusal application? if the author of this biased article thinks the judge would so competently hear the recusal application, is he competent to hear the whole case? or any other case? i am of the view that the judge was right to hear the matter and determine it the way he did. the accused hear are just judge shopping. we cant tolerate that.

  9. George phiri says:

    Ndiye Mtamboyo wakukanirani. Mutani??? Basi amene mwalemba nkhaniyi muthandidzeni kumwembeyo pomuwombera Mtambo. Kumwembe ali ndi ufulu koma Mtambo naye alinawo ufulu osiya nkhani kapena kutipitilidza. In this case he Mtambo feels wont be biased.

  10. Truck says:

    WHERE ON EARTH HAVE YOU SEEN THE OFFENDER CHALLENGING A JUDGE JUST PUT HIM LIKE IN PRISON DONT WASTE OUT TIME EH!

  11. Truck says:

    IN MALAWI BECAUSE OF CASHGATE WE NEED NONONSE JUDGES LIKE MTAMBO AND KAMUDONI NYASULU TO FIX THIS CASHGATE PEOPLE.

  12. chipwete chalunda says:

    I feel the learned justice should recuse himself in order to remove all doubts at appeal if the accused are convicted. Otherwise this will be a fertile ground to challenge the legality of the conviction. I know many laymen will disagree but this is the position of the law which I gladly spent four years studying at chanco

    1. johnM says:

      Should we be impressed that you studies law at Chancol? It is clear, from following the cashgate cases that a good number of you Chancol law graduates are incompetent, immoral, and just down right idiotic

  13. Shocked says:

    Am not a lawyer but this article is flawed how many judges have to recuse themselves till we see this thugs behind bars.
    The kumwembe guy accused the learned judge that he is Robin Hood (a thief) and he was sentenced for that. In full support of Mtambo let him do his job basi mupitabe Ku prison no matter how much you use your delaying tactics

  14. Thubwe says:

    Law Journal! Hahahahahahahahaha mumva kuwawa kwambiri ndipo mukafera kundende imfa yowawitsitsa

  15. learned Judge says:

    Michael Mtambo is some lawyer of Integrity. When he roars, some rat lawyer shiver with fear. Judge Mtambo, continue to Flush out the incompetent lawyers who have failed failed to carry out their duties as attorney general, legal practitioner, University lecturer, now they are professional counsels

  16. nyayo says:

    You deliberately provoke the judge and then say he is biased? ?

  17. Mtavuma says:

    The mafia lawyer playing all tricks of the game to have the judge out of the case. Time for justice..let this case move quickly and let justice prevail.

  18. Dalitso says:

    By law journal my foot. in your words you have indicated that you do not care how Judge Mtambo’s resume was found in the hands of kumwembe. To you that is nothing,,right? Well kumwembe’s friends previously did ask for other judges to recuse themselves too in cases related to same issues sourrounding mphwiyo and cashgate. Leave judge Mtambo alone and mind you , if you were a good friend to these guys; you should have just advice them to repent and seek God’s grace to intervane. Keep on being arrogant and bullying, your friends are about to havest what they have been sowing and that is simple as that. Judge Mtambo, my prayer is that in future you may ascend to the throne of chairman of Malawi elections commission, you might serve us as you have shown that you are a man of ethical and follow your professional with courage. Keep it up judge and it is my prayer that God will continue granting you wisdom to serve your country better.

  19. rasta says:

    the write-up smacks of intellectual immaturity. am in sciences but can easily notice flaws in your arguments. and stop embarrassing yourself by calling this half-baked publication a law journal. its an insult!

  20. chimphwete says:

    I can’t wait to see the learnt counsel Kasambara behind bars. This mafia in gowns of a lawyer must face justice. Mtambo please jail these killers.

  21. Mulangizi wa APM on kutakata ku bedi says:

    Nkhani iyi achimwene mwayifotokoza bwino zedi. The judge should have stepped aside for the sake of justace (Bingu’s accent) to be seen to be delivered fairly.

    The problem with Malawian presiding officials though is that it is very unnatural for them to recuse themselves from their positions because of their unnecessary pride. Another good example is Justice Mbendera who despite crying like a baby on live world HD television, is refusing to step down at MEC. They are so strange, probably they don’t ejaculate.

  22. Bongolo says:

    If the accused won’t be happy with whatever decree Justice Mtambo will give, we have the Malawi Supreme Court of Appeal where they can appeal against the ruling. Why are they scared of Mtambo? They low for sure the ball is not in their court! Let the judge do his job. Malawi needs more justices of Mtambo’s calibre. We keep following this case with the greatest interest. Wd do not want judge shopping.

  23. xxxxx says:

    Even if we allow their wives to preside over the case, these guys will still be convicted.

  24. State Counsel says:

    Suspission of bias is ground for recusal for the judge. Judge Michael Mtambo, just has to recuse himself from the case.However, for the sake of getting rid of Kasambara, he should refuse to do so. There are just so many loop holes in our judicial system. We need the Judicial Code of Conduct Act on how judges should conduct themselves just like our neighbouring Country Zambia, Uk and America has. Mtambo, recuse yourself forthwith. Don’t set a bad precedence here.

  25. I dont see kumwembe surving, mtambo has taken case too personal, sanje ndi kasambara coz he is more intelligent than himself. Where else do we hear kasambara in cash gate? Mphiyo,kalonga,lutepo onse akukana to involve/implicate him. Jealousy will take malawi no where, kasambara is in south africa right now munthu woti anapangadi angabwereko.

  26. jk says:

    KKK, no just join the case as friends of kasambala and kumwembe. Osamanamizira kulemba article pa nyasa times, KKK, ndangupenya ine

  27. kamale says:

    Hahaha! Akutuma iwe. Kasambara and his friends have been cornered, let them meet their fate basi. Mtambo apange zimenezo basi.

  28. cheyo the real northerner says:

    The judge should not attempt to recuse. He is a very learned judge. These criminals, the Kasambara and his collegues are just buying time. More fire jugde.

  29. Bandawe says:

    Why do football teams have no referee shopping luxury that we want our learned judge to recuse himself from this case?
    I am sure if these people were clean in their hands they would certainly leave the learned Judge conclude the case after all he will not alter their facts in the case which can then be used for appeal. I suspect there is something they know about this judge, it could be that he is a no nonsense judge and that they are afraid of his penalties in the event that they are found guilty of the offence.

    They probably have known the learned guy is the right material to see them into jail.
    If this is true then we need just 10 of his type to exorcise Malawi from evil

  30. yeah that’s great big man ,the sentencing of kumwembe for four month in prison is not impartial in judicial view of point but rather emotional judgement expressed by Justice Mtambo.It reflect prejudgement views of mtambo in an ongoing case which I feel kumwembe will bear the consequences if the judge on duty doesn’t recuse himself .It reminds me of Prison Monger story whereby the accused deliberately proves the judge and he finally gets the punishment out if frustration of the judge. If Mtambo doesn’t recuse himself justice will be buried in the judicial system of the land .The outcome will be more personal the prevailed truth of the matter.Its high time Malawian judges started showing maturity by showing professionalism by proving speculation in the Media and general public. Make the case Kumwembe Vs State not Mtambo Vs Kumwembe .We will not stop advising Mtambo to do that until he open his mind and see the future .

  31. Yemwe uja says:

    The writer had better justified his assertions of the seriousness of Kumwembe’s allegations and how they ought to be regarded as reason enough for the judge to step aside. Otherwise, the principle of recusal would in-turn abet to free and legally sanctioned judge shopping as an accused would rain on every judge he doesn’t like allegations of apparent biasness until the preferred one takes on.

  32. MAN G says:

    Law journal ?

Comments are closed.