Director of Public Prosecutions (DPP) Mary Kachale has appealed against a Supreme Court judge’s decision to release on bail former justice minister Ralph Kasambara and asked the court to revoke the bail conditions.
Kachale wants a panel of nine judges at the same Supreme Court of Appeal to hear the matter and that the bail for former Justice Minister’s who was serving a 13-year jail term for conspiracy to murder a civil servant, in a crime believed to be linked to a multi-million dollar corruption ring l be overturned.
Malawi Supreme Court of Appeal judge Dunstan Mwaungulu, sitting as a single Supreme Court Judge, released Kasambara on March 15 2018, as he is pending appeal on his conviction.
Spokesperson for the ministry of justice, Pilirani Masanjala confirmed that the DPP has outlined seven grounds of appeal that it wants the Supreme Court to consider when reversing or discharging Mwaungulu’s decision to grant Kasambara bail.
According to Masanjala, among the grounds, the State contends that Justice Mwaungulu made material error in law in holding that the rights enshrined in Section 42 (2) of the Constitution of the Republic of Malawi, including the right to bail, and to be presume innocent, extends to convicted or sentenced persons.
The DPP further feels the judge erred in law in holding that the principle in enunciated, namely the exceptional circumstances test for bail pending appeal, was an impermissible principle of the Supreme Court of Appeal.
“The court erred in law in determining that the lower court’s determination of an earlier Malawi Supreme Court of Appeal judgement and the totality of the evidence therein contrast with the totality of the evidence before it, was insufficient to demonstrate that the lower court of appeal had made use of or distinguished an earlier binding decision of the Malawi Supreme Court of Appeal,” reads part of the notice signed by top prosecutor Kachale.
Kasambara was sentenced for his role in the attempted murder of ex-National Budget Director Paul Mphwiyo. He was convicted alongside MacDonald Kumwembe and Pika Manondo and they were all seeking bail but have been refused.
Justice Mwaungulu noted that, in convicting Kasambara, the High Court judge Micheal Mtambo had evidently relied on call logs which did not place Kasambara anywhere near the scene of the crime.
The day Mphwiyo was shot outside the gate of his Area 43 residence in Lilongwe; Kasambara was meeting former South African president Thabo Mbeki.
“The state never proved any conduct or misconduct on which a conspiracy could be inferred,” noted Mwaungulu in his ruling.
Mwaungulu also observed that there was contradiction from the trial judge on finding Kasambara not guilty of the attempted murder charge and finding him guilty of the conspiracy to murder.
“The prosecution case, on the same evidence, against the appellant’s attempted murder charge based on that the third appellant agreed to commit the crime – the third appellant, as procurer or conspirator, was a principle offender.
“In effect, the third appellant [Kasambara] was acquitted on principal because he never conspired or procured the crime, A finding later that there was a conspiracy cannot be explained on the general principle that a conspiracy is treated differently from the sustentative crime – or its failed judgement.”
He also touched on inability of the prosecution to disprove the appellants alibi, saying the judge wrongly based its finding on call logs.
Mwaungulu made his judgement based on interest of justice test enshrined in the Constitution Section 42 with “exceptional circumstances test” in granting bail
Kasambara, one of the finest lawyers Malawi has produced, appear to maintain his argument that he was jailed on “miscarriage of justice” by judge Micheal Mtambo.
“I was charged with conspiring to murder and, then, with attempting to murder. And the same judge [Micheal] Mtambo said I don’t agree to murder someone. So, how did he convict me of conspiracy to murder? Becasue if I agreed with someone to murder someone and the judge says that is not true, he cannot turn around and say I conspired to murder,” said Kasambara.
He said the court cannot convict somebody on call logs.
“The Supreme Court has made that decision before that no one can be convicted based on call logs [Republic V Mvula a Supreme Court decision]. The Supreme Court has agreed with us today.”
In August 2016, Mtambo sentenced Kasambara to 13 years imprisonment for conspiring to murder Mphwiyo outside the gate of his house in Lilongwe’s Area 43 residential estate on September 13 2013.
Manondo and Kumwembe were given 15 years prison terms for attempting to murder Mphwiyo.
Mphwiyo survived the bullets fired by assassins that lurked in the dark at the gate of his house. He was rushed to the Masm Clinic few blocks away from his house before being taken to Kamuzu Central Hospital. Days later, he was airlifted to South Africa.
However, Mphwiyo’s initial reputation as an anti-corruption crusader was dented by his own arrest on Cashgate-related charges which he is currently answering in court.Follow and Subscribe Nyasa TV :