A glimpse into the ‘un-reported’ Mphwiyo shooting case

Sampling the 10^th and 11^th December 2015 court session. It was on Thursday around nine o’clock in the morning or just after, when court resumed and the three accused; MacDonald Kumwembe and Pika Manondo, and Raphael Kasambara SC were to enter their defence in the case they are accused of attempted murder and conspiracy to murder respectively.

First to enter their defence was MacDonald Kumwembe who went on to narrate his back ground and explained that on the said night of 13^th September 2013, when Paul Montfort Mphwiyo was shot, he, MacDonald Kumwembe was in Mozambique, Tete to be precise and that was supported by his passport. In all he presented that he was not guilty of the offence of shooting Mphwiyo.

The state in cross-examining MacDonald Kumwembe had the Director of Public Prosecutions (DPP) in the person of Mary Kachale(Mrs.) firing questions aimed at punching holes in Kumwembe’s defence.

In the early stages of cross-examination, Kachale presented a letter purported to be from the Malawi Defence Force(MDF) signed by a Liwimbi which said that Kumwembe was an ordinary soldier and that he never worked in the Intelligence Section of the Force.

Kumwembe responded by saying that in the first place there is no rank of “Ordinary Soldier” in the MDF and he requested the presiding Judge, Justice Michael Mtambo to allow him call for his certificates from his home to explain better his role in the military, a call the judge granted.

Kachale later alleged that Kumwembe was lying that he was in Mozambique from the 30^th of August to the 14^th of September 2013 as someone had apparently seen him in Malawi within the said period, to which Kumwembe responded by saying that was the DPP’s opinion as there was evidence to the contrary.

There were moments of laughter from the gallery when in most instances Kumwembe simply answered the DPP that whatever she was alleging in cross examining him was her own opinions of him and the situation and challenged her to support the same with evidence. At one point Kumwembe told the DPP to be objective and stop “thinking” for the court as the court was just and did not require anyone “thinking for it”

The DPP asked MacDonald Kumwembe why there appeared to a lot of money in his bank account and who had deposited it, as per the copy of bank statement she was looking at. He first asked the DPP to look at his other bank accounts’ statements as he had several accounts running and determine if what Kachale was alleging to be a huge deposit would indeed be an amount to raise eyebrows about.

She responded by saying,” this was the only account that had dubious transactions”. Kumwembe told the DPP that if she had bothered to check his other bank accounts she would not have been troubled by the figure she felt was abnormally huge in one of his bank accounts since the other bank accounts had even bigger amounts of money deposited in them. The figure in question was Mk300, 000. (Three Hundred Thousand Kwacha only)

In an attempt to pressure the first accused to respond as she wished, the DPP tried to scare Kumwembe that he was in contempt of court if he did not answer as she wished to which the presiding judge retorted that Kachale should cite a case and authority that support her claim that if the first accused answers in the negative or indeed chooses not to give an answer then he is in contempt of court and should be charged and punished accordingly. It was strangely funny when the DPP chose to quickly sit down and not cite the case and authority demanded by the judge.

Earlier in the afternoon of the first day the DPP wound up her cross-examination by, amongst other allegations, putting it to Kumwembe that;

1. He was an ordinary soldier who did not work in the intelligence section of the MDF,
2. He had lied that he was in Mocambique in that period but had been seen in Malawi (it had been earlier testified by a Mr. Kamkhwala Chilinda) of the CID of Malawi Police Service that he had seen Kumwembe although later it had transpired that Chilinda was lying and confessed the same.)
3. He was present at the scene of crime. I.e. where Paul Montfort Mphwiyo was shot.
4. He was the one who shot Paul Montfort Mphwiyo.

After a few minutes recess, it was time for the first accused to be cross-examined by his co-accused. Pika Manondo did not have any questions for MacDonald Kumwembe whilst Raphael Kasambara SC has a barrage of questions for him.

It must be said that, this was the moment the courtroom witnessed a different and more coordinated form of cross-examination. The DPP was all over the place with her questions such that the presiding judge at one point had to ask her where her questioning was leading. Enter the Senior Counsel; one could see his direction as he asked questions supported by evidence on the court file.

The third accused, Raphael Kasambara SC, started by asking Kumwembe to read out loud all the three statements recorded by Paul Montfort Mphwiyo, i.e first one recorded in late October 2013 a month after the shooting, a second one recorded in November 2013 and the last on recorded at the end of December 2013. All these caution statements were duly signed by Paul Montfort Mphwiyo.

When questioned whether any of these statements mentions any names of individual(s) who shot the victim, Kumwembe replied that none of the statements did, and actually Mphwiyo actually stated in all three statements that he did not know who shot him and had no idea who may have wanted to harm him.

Kumwembe responded to a question that he was arrested on the 18^th of September 2013, i.e only four days after the incident and remained in custody till sometime in January 2014. All the while his name had not been mentioned anywhere in the investigations, let alone in the caution statements Mr. Paul Montfort Mphwiyo made and signed for.

Meanwhile, in the courtroom, one could hear murmurings and whisperings, much to the annoyance of the judge, who for a while tolerated it.

When asked why he thinks Mphwiyo did not mention him in all three caution statements, MacDonald Kumwembe said, simply because Mphwiyo did not see him at the crime scene on that night. He went on to narrate how he had known Mphwiyo closely during his (Mphwiyo’s) college days at Chancellor College when Mphwiyo was actively engaged in political activism.

He said Mphwiyo was using a green Toyota Hilux Double cabin vehicle and was most times in the company of late Dumbo Lemani. Kumwembe said they usually interacted at drinking joints and were very familiar with each other, such that if he, (Kumwembe) had been at the scene of the shooting on that night and standing at five metres away from Mphwiyo (as Mphwiyo had indicated when the court assembled at his house at the beginning of the trial)surely Mphwiyo would not missed mentioning him in the three caution statements he made from October to December 2013.

Kasambara asked Kumwembe if he remembered what charges were levelled against him and with whom was he listed on the charge sheet. Kumwembe replied by reading from the charge sheet which was passed to him from the court file by the court clerk. He read out that he was charged with attempted murder together with Robert Kaduwa who later was let off the charge.

Kumwembe confirmed by reading further that the charge sheet was signed by the DPP herself. When asked to read out the date the charge sheet was signed by the DPP, Kumwembe read on that it said 31^st July 2013. And the court room murmured and whispered.

The charge sheet was signed before the crime was committed on 13^th September 2013.

On the Friday morning, MacDonald Kumwembe was asked to read out from one of his certificates which had now been made available in court following the request Kumwembe had made to the judge the previous day. He read out that the certificate was awarded to him upon completion of a training for Intelligence Officers and was signed by a Maulana who happens to be the current Army commander.

Kasambara asked who would be better placed to state MacDonald Kumwembe’s status when he served in the Army, and the reply was Maulana. This countered greatly the DPP’s assertions through the letter from Liwimbi that said Kumwembe was an Ordinary Soldier.

More certificates that Kumwembe read out confirmed that he had undergone a number of trainings including one conducted by the British Infantry School done in English, contrary again to the state’s insinuation that MacDonald kumwembe is illiterate and could not speak English.

Since the court had to adjourn at midday, the cross examination was curtailed to continue at a later date.

The court then had to hear the third accused application for bail since his bail was revoked almost 12 weeks earlier. Raphael Kasambara SC stated that his health had deteriorated in custody and his incarceration has resulted in the case delaying further, unlike when he was free and would easily monitor his health and avoid asking the court for time off to attend to his medical needs.

The DPP argued that in the ”interest of justice” the state was against granting the third accused bail because the state feels this application was a waste of court’s time and resources since the third accused has also submitted an application on the same to the Supreme Court of Appeal. She also argued that much as she is aware of the third accused’s current medical condition, she has been assured that the Prison’s medical personnel regularly attend to him and that should be adequate medical care.

In his final submission, Kasambara emphasized the need for his bail arguing that for whatever misdeed he committed against the judge, he believes the three months he has been incarcerated are adequate punishment and the court should exercise leniency. He indicated that the Prison’s medical staff really does attend to him as evidenced by his health passport which he presented to the judge for inspection.

The health passport only had two entries; one on 4^th December 2015 and the other on 9^th December 2015, both only showing his blood pressure readings. No details of his prevailing ailment, as well as the diarrhea he had been having for a number of weeks. This was in sharp contrast to the DPP’s assertions that the third accused has access to decent medical attention in prison.

The presiding judge announced he will deliver his ruling on the bail application through e-mail in the week ending 18^th December 2015. The case has been adjourned to resume on the 4^th of January 2016.

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