Glimpse into the unreported: Mphwiyo shooting case

Observing the legal sparring in court in the on-going Paul Morntfort Mphwiyo shooting case, one cannot help noticing that at times one side is simply going through the motions; the state.

Judging from some of the questions asked by the Director of Public Prosecutions, Mary Kachale, one gets convinced that the state hasn’t done its home work properly or their team is simply incompetent. Time and time again the presiding judge, Justice Dr. Michael Mtambo has had to ask Kachale, where her line of questioning is taking the matter to, or even asking if indeed a particular question she has asked is that which she intended to ask and indeed even told her to not confuse the witness with convoluted explanations prior to asking what may be looked at as a extraneous question.

In such high profile cases, the learned legal minds take time to research, plan and rehearse their tactics and lines of questioning if they are to win the case for themselves, their clients or indeed for their employers as in the case of the DPP.

In objecting to several presentations made by the defence, the DPP has on several occasions been asked by the learned trial judge to cite a ‘case’ and ‘authority’ to support her objection or indeed any request she has presented and observers from the gallery would testify that she has been unable to cite the demanded cases and authority indicating that she is probably more emotional than technical in this particular case.

The trial judge, Michael Mtambo has been very accommodating, as evidenced by him asking the DPP if she could probably do with a ten or twenty minutes break to recollect her thoughts when she has appeared confused with her own line of questioning, at times tripping over her own questions.

On the other hand the judge has also strictly made sure there is order in the courtroom, as evidenced by the time when he ordered about six or eight people out of the court room when they had laughed uncontrollably at the DPP’s goofs. In the absence of such strictness, the courtroom would have been a complete circus.

On many occasions the state has been found to lack documents related to the case, which were in the first place sourced and presented to the court as well as the accused persons by the state itself. The defence has had to use their own resources to make extra copies available to the court and indeed to the prosecuting team as well. How incompetent can one be?

Going back to the real case, so far, defence witnesses has managed to punch numerous holes in the state witnesses statements such as the damage done to Jesse Mussa, the former housemaid to former justice minister Ralph Kasambara.

Whilst the state had relied heavily on her witness that she confirmed that Kasambara had a silver Mercedes Benz with foreign registration numbers and the same was used in the shooting of Paul Mphwiyo, that on the13th of September 2013, the former Justice Minister was at home meeting with Paul Mphwiyo, that the next day she was made to take Kasambara’s youngest son away to Lilongwe Golf Club (supposedly to keep him away from the aftermath of the shooting of Paul Mphwiyo) and that she had seen cartons containing fire arms as well as several bags of money in the former Justice Minister’s bedroom, defence witnesses such as; Fostino Chimwaza, the former Justice Minister’s official driver, Sergeant Gani, the former body guard to Kasambara , and indeed the current Secretary to President and Cabinet and a few others convincingly put it on record that most if not all that Jesse Mussa told the court was lies.

Another major upset in the case for the state was when Sergeant Gani fearlessly told the court that fellow police officers namely; Chilinda, Chaima and Makwinja tortured him forcing to implicate Kasambara in the shooting of Paul Mphwiyo. The three officers reportedly were acting on instructions from one  Nelson Bophani who at the time was appointed Deputy Inspector General by the then President Joyce Banda.

Gani, when answering Kasambara’s questions during cross examination indicated that he was incarcerated and charged with attempted murder on Mphwiyo, whilst at the same time the police had also incarcerated MacDonald Kumwembe on the same charge. One wonders whether the police were suggesting Mphwiyo was shot by two people or it was just a matter of picking people off the street and matching them to a particular crime depending on their individual circumstances.

Indeed Gani was released from police custody on the 18th of December 2013 whilst his case was discontinued on the 14th of December 2013. Four days after his case was discontinued the infamous trio of Chilinda, Chaima and Makwinja were still pressurising Gani to implicate Kasambara in the shooting of Mphwiyo. Gani was promised a promotion and protection if he cooperated.

During the trial, the DPP had applied to the court to allow some of the defence witnesses to testify in camera, apparently because they would reveal sensitive national security issues. How she fore-knew this, one wonders since these were defence witnesses and their submissions would only be known at the time of them being cross examined and the DPP would if necessary appropriately ask the court then, to go into camera.

Speculation outside the court was rife that she was probably just apprehensive of another awkward performance in cross examining this particular set of witnesses who are high ranking, well versed in their professions and confident civil servants. The four witnesses were Radson Mwadiwa, the former Secretary to Treasury, Mercy Kumbatira, Director of Banking Services at Reserve Bank of Malawi, Mr. Jhuwao  and  Mr Jenya, all high ranking at the Ministry of Finance.

Thus far, the state has an uphill task proving that this case was not staged; all evidence so far indicates it was and that, with orders from some very high office, if not the highest in the land.