The Malawi Supreme Court of Appeal Judge Dunstain Mwaungulu has quashed the Director of Public Prosecution (DPP) Mary Kachale’s application that he recuses himself from hearing a bail application for convicted former minister of Justice and Constitutional Affairs Ralph Kasambara and two others after the State accused presiding judge Dunstan Mwaungulu of “bias”.
Kasambara and his co-convicts—Pika Manondo and MacDonald Kumwembe—applied for bail pending an appeal (which they have since filed) against their conviction.
The trio were convicted last year after being found guilty of conspiracy and attempt to murder former Ministry of Finance budget director Paul Mphwiyo at his Area 43 residence in Lilongwe in September 2013.
However, before hearing of the bail application was made, top prosecutor Kachale made three objections to the hearing, which included asking Mwaungulu to recuse himself from the case for allegedly already taking a position on the matter.
The DPP also argued that the State was informed about the case two days before the actual day of hearing; hence, it had insufficient time to prepare for it.
She also applied for consolidation of the case where the different applicants were applying in different cases which she said was cumbersome and instead they should just be combined.
The issue related to the applicants using different lawyers where Manondo and Kumwembe have engaged Michael Goba Chipeta and Kasambara was using Lusungu Gondwe.
However, in his determination on Monday, the judge quashed the application for recusal for lacking merit.
He observed that DPP never laid evidence , and therefore , never proved her assertion that any person discussed or commented on the case.
“This is, therefore, not a case of automatic disqualification or recusal. At the most, it is a case if apprehension or possibility of bias. In this respect, therefore, there musr be proof of conduct for such apprehension or possibility… The applicatiom for recusal is, therefore , refused,” reads in part the judge’s 47-page judgement.
Kasambara looked clam in court and took notes as the judge read his ruling.
The DPP is on record alleging that Mwaungulu had already commented on the case on social media.
She said: “The Malawi Law Society [MLS] has a Google group chat where lawyers post current cases so when one of the lawyers sent the case of Kumwembe against the Republic bail application which the lower court [High Court] had decided there were several comments, some arguing for it and some arguing against it and Justice Mwaungulu joined the lawyers against the ruling. So, we are saying he has already expressed his position in this matter as such he should not hear it.”
But the Supreme Court judg dismissed the application, saying the evidence by the DPP did not show that he or the rest of the commentators commented on or discussed the case at hand.
“The evidence actually shows that from 4 October 2016 14.54 when Dr Sunduzwayo Madise logged Kumwembe and others v Republic on the Malawi Law Society Google group up to the last comment on Wednesday, 19 October 2016 at 6pm, nobody, as in everybody, never as in ever mentioned or discussed Kumwembe case at all,” reads in part the Mwaungulu’s judgement.
Meanwhile, Justice Mwaungulu has set September 23 to hear on the bail application.
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