Judge refuses to recuse herself in K2.4Bn Mphwiyo ‘cashgate’ case

“There are no substantial grounds for me to recuse myself from this case.”

Judge Esmie Chombo of the High Court told Paul Mphwiyo and 14 other suspects in the K2.4 billion cashgate case in which she is the sitting judge: I am not going nowhere, I keep on hearing this case to the end, and “I will judge you.”

It has become a trend and common practice in Malawi that suspects are asking judges to remove themselves from cases they are presiding over which is seen as a tactical ploy to drag the case for a long period.

But it seems, the judges are not in the mood to fall for that textbook tricks anymore as recently a couple of judicial officers have refused to recuse themselves in the cases that they hearing.

One such incident is that of Cashgate involving the former budget director and 14 others accused pilfering K2.4 billion public funds.

High Court of Malawi judge Esmie Chombo on Thursday refused to recuse herself from presiding over the K2.4 billion Cashgate case involving former government Budget Director at treasury Paul Mphwiyo and 14 others.

“There are no substantial grounds for me to recuse myself in this case,” ruled judge Chombo.

Justice Chombo has also refused to dismiss the case as pleaded by Mphwiyo who had argued in an application recently that Chombo’s tenure as judge expired and was not renewed by the President.

The other accused persons in the case of embezzling the K2.4 billion, conspiracy to defraud government, holding property of government, theft and money laundering are David Bill Kandoje, Auzius Kazombo Mwale, Clemence Madzi, Roosevelt Ndovi, George N. Banda, Steve Likhuya Phiri, Michael Mphatso, Samuel Mzanda, Stanford Mpoola, Syphathy Chisale, Fatch Chiungano, Andrews Chilalika, Cecilia Ng’ambi and Ndaona Satema.

‘Recusal doctrine’

The doctrine of recusal states that a judge may recuse him/herself from proceedings if he or she decides that it is not appropriate for him or to continue hearing the case before him or her.

The onus to recuse or not, therefore, rests with the judge in question.

Principally, the legal principle in judicial recusal is that a judge, therefore, must step down only in circumstances where there appears to be bias or apparent bias.

A few weeks ago, Chief Resident Magistrate Patrick Chirwa refused to recuse himself in a case in which the South African government wants Prophet Shepherd Bushiri and his wife, Mary to be extradited back to South Africa to answer charges.

A month or so ago, Judge Dorothy De Gabrielle also refused to to recuse herself from a corruption case involving business magnet Thompson Mpinganjira in which he is accused of attempting to bribe judges to sway their decisions in the 2020 presidential election case towards the then president Professor Arthur Peter Mutharika.

However, Judge Fiona Mwale is the odd-one-out as she recused herself from a murder between and the State, a case she was hearing after she was faced with allegations of bribery.

Justice Fiona Mwale of Malawi’s high court, was presiding in a criminal case where the accused is Mohamed Shahin Mahomed Iqbar Juma. In a judgment on recusal, delivered last week, she noted that Juma is accused of having caused the death of his wife, Zaheera Juma, ‘with malice aforethought’, during December 2019.

Juma pleaded not guilty and has tried repeatedly to persuade the court to allow him out on bail, so far with no success. In July 2020 the court found he had a case to answer. Juma’s lawyers have since asked the court to reconsider that decision, but that application was dismissed.

‘Judicial contract’

Judge Chombo’s decision means Mphwiyo who came to national spotlight after he was shot in the face in 2013 at the height of ‘Cashgate’ – the huge public funds theft scandal, will continue providing his defence in the case, eight years after the scandal took place as the court found him and co-accused persons with a case to answer.

The High Court of Malawi in May 2020 found former Ministry of Finance budget director Paul Mphwiyo and 18 others with a case to answer in connection with alleged grand theft of public funds and money laundering of K2.4 billion in public funds.

Earlier this year, Mphwiyo Former budget director at the Ministry of Finance Paul Mphwiyo and 14 other accused persons in the infamous Cashgate case demanded proof of contract extension for the judge presiding over their case, Esmie Chombo.

The 15, accused of defrauding K2.4 billion public funds in 2013, also asked the Judiciary, in a letter they wrote dated on January 29 2021, the rationale of continuing with the hearing where the court is being crammed with over 20 people at a time Covid-19 pandemic has hit hard.

The team, which judge Chombo found had a case to answer and are defending, demand a copy of the President’s permit as all presidential decisions must be in writing as stated by the Constitution.

‘Shocking scandal’

Presiding Judge Esmie Chombo, who initially was unable to pronounce the verdict because two of the suspects failed to show up for the hearing, finally delivered her judgement that all the suspects had a case to answer last year, seven years after events of September 2013—starting with the shooting of Mphwiyo at the gate of his Area 43 house in the capital, Lilongwe during the Joyce Banda presidency.

The scandal shocked the world and exposed what became the country’s biggest corruption scandal in history branded Cashgate.

Mphwiyo and the others will now have to provide evidence to defend themselves against the evidence of the State, which earlier paraded 35 witnesses and tendered 300 exhibits allegedly implicating the suspects.

However, immediately after the judgement was delivered, lawyers representing the suspects asked the court for a 45-day adjournment to prepare for the case – they later applied that the judgement be put aside pending an appeal in the Malawi Supreme Court of Appeal on whether the High Court can continue hearing the case after their clients questioned the charges laid against them.

‘Biggest plunder’

Mphwiyo—whom then president Joyce Banda claimed was shot for allegedly exposing Cashgate—is the high-profile suspect in the dock alongside then Accountant General David Kandoje, senior Treasury colleagues and businesspersons.

Mphwiyo’s shooting is widely attributed to have led to revelations of the plunder of public resources at Capital Hill and opened a can of worms of what became be known as Cashgate.

Former minister of Justice and Constitutional Affairs-cum-Attorney General under the Joyce Banda administration, Ralph Kasambara, businessperson Pika Manondo, Dauka Manondo, Robert Kadzuwa and McDonald Kumwembe were convicted and jailed on Mphwiyo’s attempted murder.

Kasambara was later released on bail from prison after he appealed the conviction. The matter is to be heard fully by the Supreme Court of Appeal.

The then president, Banda, ordered an audit which British forensic auditor, Baker Tilly then now called RSM, undertook for a randomly selected six months period between April and September 2013. The audit established that about K24 billion was siphoned from public coffers through dubious payments, inflated invoices and goods or services never rendered.

In May 2015, a financial analysis report by audit and business advisory firm PricewaterhouseCoopers (PwC) also established that about K577 billion in public funds could not be reconciled between 2009 and December 31 2014. The amount was later reconciled to K236 billion by another audit firm.

Follow and Subscribe Nyasa TV :

Sharing is caring!