Lilongwe High Court judge Micheal Mtambo has dismissed an application from accused Macdonald Kumwembe, to recuse himself from the conspiracy to commit murder case of the shooting of former Ministry of Finance budget director Paul Mphwiyo at the gate of his Area 43 residence in Lilongwe on September 13 2013.
Kumwembe – a former Malawi Defence Force soldier who is the main suspect believe to have shoot Mphwiyo on the night of 13th September, 2013 – applied to the court for the recusal of Justice Mtambo, as he claimed the judge is not competent to handle the case accusing him of harbouring personal grudges with the accused.
Dressed in white shirt and black trouser, Kumwembe told the court that the case which has attracted the attention of Malawians and international community, is of high profile and that it needs a judge who will be deemed unbiased to either side .
He said Mtambo already told the court in the past that the suspects were after his life and that his life was in danger because of them and then he revoked their bail, saying it will be unfair for the same judge to make a fair ruling on their case.
“This case is high profile and is well followed by Malawians and even the international community. There is need for justice to be done and to be seen to be done. With Judge Mtambo presiding the case, we have doubts that he will be impartial as he already formed an opinion that we are threats to his life,” said Kumwembe.
Director of Public Prosecutions (DPP) Mary Kachale objected to the application saying the application must be thrown out as it’s not new since the issue of judge recusal has been dealt with previously.
Kachale said the accused are only “trying to buy time” and drag the case as this is the third application on the same from the accused.
She argued the judge is competent enough to proceed hearing the case as he has always been objective throughout the proceedings.
Kachali told the court that any reasonable person can’t think that the judge is or will be biased as he has always be independent.
She also warned the court through the judge that they must not tolerate issues of judge recusal unless the applicant has proved beyond expectations as this can be used as way of “judge shopping.”
In his ruling justice Mtambo dismissed Kumwembe’s application, saying there were no grounds for him to step down and he will continue handling the case.
During the proceedings, the prosecutors notified the court that first accused Kumwembe will now be represented by private practicing lawyer Goba Chipeta and that private practicing lawyer Emmanuel Theu no longer represents third accused Raphael Kasambara as the accused is now back in court and will continue representing himself .
Speaking in court, former justice minister Kasambara who looked sickly said he is “not fit and well” to stand the trial as he is recovering from his heart problem
But Kachale told the court that Kasambara must put that in writing so that the state can respond to that accordingly.
Kasambara is on remand in prison after being discharged from Mwaiwathu Hospital as Supreme Court of Appeal judge Rezine Mzikamanda dismissed his appeal against the High Court verdict to withdraw his bail.
Through private practice lawyer Modecai Msisha, former justice minister argued that the court erred in revoking the bail.
Kasambara’s bail conditions were revoked by Judge Mtambo on September 23 over what he claimed was an infringement on his private space by allegedly accessing his private information
But in filing the application, Msisha argued that the trial judge (Mtambo) blundered in revoking the bail because he was a complainant as well as a judge in a matter in which he was the aggrieved party.
Kasambara, Kumwembe and businessperson Pika Manondo were found with a case to answer in the near fatal shooting of Mphwiyo.
Meanwhile, the court has been adjourned to 10 and 11 December, 2015 when the court shall proceed with the hearing when the suspects are expected to enter into defenceFollow and Subscribe Nyasa TV :