Chasowa murder case: Malawi Chief Justice ponders on recusal

Chief Justice, Andrew Nyirenda is contemplating on whether to recuse himself from certifying a Constitutional review on the application by two of the suspects in the murder case of Polytechnic student, Robert Chasowa who want to be discharged from the case.

Doff Bottoman and Peter Petros through their lawyer Ambokire Salimu applied to the High Court in 2013 to be discharged from the criminal proceedings on ground that the delay by the State in prosecuting them is unconstitutional.

Justice Nyirenda, who is expected to certify Constitutional proceedings on the application, on Wednesday sought views of the State and the applicants’ lawyer, Ambokire Salimu, on whether to recuse himself from the case to avoid his determination on the matter to be deemed bias as he once chaired the Commission of Inquiry on Chasowa’s murder.

But both the State and Salimu argued that there was no evidence to prove that the Chief Justice was likely to be bias on his decision on whether to endorse the Constitutional review despite his involvement in the inquiry.

Salimu also argued that as Chief Justice, Nyirenda is the only one mandated to hear and certify the application as required to by Section 9 (3) of the Courts Act.

“The court cannot act on speculations, and there is not any evidence to prove there is likelihood of biasness. And on the other hand the Chief Justice, if he decides to recuse himself, cannot delegate the matter to any other judge based on Section 9 (3) of the Courts Act,” argued Salimu.

Justice Nyirenda is expected to make his decision by next week as the matter resumes for hearing.

Application to be Discharged

Bottoman and Petros who were arrested on July 17th, 2012 and charged of Chasowa’s murder before were released on bail in October same year, want to be discharged from the criminal proceedings, arguing that the State has failed to provide evidence to incriminate them in the murder case, which has failed to go for trial despite government once instituting a Commission of Inquiry that implicated several ruling democratic Progressive Party (DPP) officials.

The application for an order to be discharged was expected to go for constitutional review following  the State’s protest that the two could not be let free based on Section 302A of the Criminal Procedure and Evidence Code, which doesn’t allow accused person charged with an offence whose maximum sentence exceeds three years.

The State argued that it was failing to commence trial as the case is “very complicated and resource consuming” such that it is yet to finalize investigating the matter- three years after Chasowa’s death.

According to lawyer Salimu, there was a need for the Constitutional review to decide on the interpretation and application of the provisions of the Constitution as Section 302A of the Criminal Procedure and Evidence Code was inconsistent with Section 42 (2) (f) (i) of the Constitution which entitles every person arrested or accused of alleged offence to a fair trial within a reasonable time after having been charged.

“In terms of Section 5 of the Constitution, Section 302A of the Criminal Procedure and Evidence Code is invalid to the extent of such inconsistency. The Constitution provides for fair trail, but if we are to go by the raised Section, then it means an accused person can stay for life without being tried, which based on the provisions of the Constitution, is unjust.

“Failure to prosecute the accused person within reasonable time must attract consequences, including discharge. My clients are being denied their right to be discharged this why we are seeking Constitutional review to ensure justice prevails,” argued Salimu.

According to Section 5 of the Constitution any act of Government or any law that is inconsistent with the provisions of the Constitution shall, to the extent of the inconsistency, be invalid.

In October, 2013 Justice Kenyatta Nyirenda who has been handling the case forwarded the matter to the Chief Justice, the Anastasia Msosa, for certification of the proceedings as Constitutional.

However, Msosa sent back the file to the Justice Kenyatta without giving any reasons. Msosa did not indicate whether she has certified the constitutional proceedings or not as required to by Section 9 (3) of the Courts Act.

Meanwhile the two accused are waiting for Justice Nyirenda to decide their fate in the murder case which remains to be unsolved mystery.