Director of Public Prosecutions (DPP) Mary Kachale is challenging a Supreme Court judge’s decision to release on bail former justice minister Ralph Kasambara who has been given 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.
Malawi Supreme Court of Appeal judge Dunstan Mwaungulu, sitting as a single Supreme Court Judge, released Kasambara on Wednesday, as he is pending appeal on his conviction.
After Mwaungulu has finished delivering his bail judgement at 1:45pm which had started around 11:30am, the top prosecutor immediately asked the court to set aside the decision to release Kasambara, pending her application to revoke his bail.
But the court advised the top prosecutor to make a formal application.
Kachale and her prosecution team rushed to the judge’s chamber to make an application that Justice Mwaungulu should suspend his own judgement so that Kasambara can return to prison.
The DPP declined to comment when journalists asked her what transpired in the judge’s chamber.
“Whatever we were discussing was not for public consumption, which is why it was in chambers. So right now, I can’t say anything,” said Kachale.
But Kasambara disclosed the DPP wanted the judge to suspend his own determination on the bail bid.
“They want to make two applications; the first application is to have my bail suspended; the second one is that she wants to apply before nine judges that they should consider revoking my bail so that I should not go home and remain in jail,” said Kasambara.
He added: “You know throughout this issue we have had that cat and mouse relationship.”
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.
Mwaungulu noted that in convicting Kasambara the High Court judge Micheal Mtambo has 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
Commenting on the ruling, Kasambara, one of the finest lawyers Malawi has produced, appear to main 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 :