Kasambara files appeal to Supreme Court of Malawi: Judge Mtambo made multiple ‘errors in law’, ignored evidence

Former justice minister Ralph Kasambara (Senior Counsel), convicted last month  alongside Pika Manondo and Macdonald Kumwembe on the charge of conspiracy to murder former Ministry of Finance budget director Paul Mphwiyo has filed a notice of appeal to the Supreme Court of Malawi against conviction.

Mtambo also found Manondo, a businessperson and Kumwembe, a former Malawi Defence Force (MDF) soldier, guilty of attempted murder in relation to Mphwiyo’s shooting on September 13 2013 outside the gate of his Area 43 residence in Lilongwe.

In a notice of appeal filed at Supreme Court, Kasambara and two other convicts now prisoners remanded at Maula Prison awaiting their custodial sentences, argue that  High Court judge Michael Mtambo  made an error in law one too many for reaching a guilty verdict.

In the notice, the trio argue that Judge Mtambo “erred in law and fact” in holding that the prosecution had made out a case to answer for the Appellants when the prosecution had failed to prove Manondo and Kumwembe had been identified as the persons at the scene of shooting.

They also argue that prosecution failed to prove that Kasambara, Manondo and Kumwembe had agreed to carry out an unlawful act of killing Mphwiyo.

“And the prosecution’s evidence was so contradictory that it could not make out a prima facie case of case to answer,” reads the notice of appeal.

The convicts also contend that the trial judge erred in law and fact in holding that the mere fact that the Manondo  and Kasambara  were communicating via mobile phones before and after the shooting of Mphwiyo  was conclusive evidence that these two people were conspiring to kill.

The appellants also argue that Judge Mtambo erred in law in holding that Kumwembe  had not given adequate notice of alibi when he told police officers who took his statement under caution  that at material time he was at Tete in the Republic of Mozambique and produced Mozambican currency, US Dollars and his travelling passport with official immigration stamps for both Republics of Malawi and Mozambique demonstrating that he left Malawi and entered Mozambique on 30th August, 2013 and left Mozambique and entered Malawi on 14th September, 2013.

The  appellants  point out that judge Mtambo made fundamental errors  in law, allowing the prosecution to call for rebuttal witness when the evidence that Kumwembe had adduced had not produced any new evidence that the prosecution were not aware of.

Mtambo is faulted holding that the official stamps by Immigration Officials in the passport of Kumwembe were not admissible as they required to be authenticated notwithstanding the fact that an Immigration Official called by the prosecution had testified that the stamps were genuine Immigration official’s stamps.

“The trial judge erred in law and fact in allowing the prosecution to adduce rebuttal evidence that only related to issue of credibility and not disapproving the defence of alibi,” reads the notice of appeal.

The notice also indicate that Mtambo erred in law and fact in accepting the version of the rebuttal witnesses when the same was so discredited by cross examination as to be unreliable.

The appeal bid also faults the trial judge in holding that a housemaid of Kasmbara, who was unceremoniously dismissed from her job in September 2013, Jesse Musa Kafuwe, was a reliable witness when in fact her testimony had been contradicted on material points by witnesses who included chief secretary in government George Mkondiwa and Airtel witnesses as well as  that several aspects of her written police statement were disowned by her in court.

Mtambo is also faulted  in holding that Manondo was under a duty to comply with Section 193 of the Criminal Procedure and Evidence Code Cap 8:01 when the case against him had started on conspiracy to murder and not attempted murder.

The judge is said to have errored in law by holding that Kumwembe and Manondo had been properly identified by call logs as the person that attempted to kill Mphwiyo when Mtambo had already made a finding that there was no proper identification of them by the gun shot survivor.

In holding that there was evidence of conspiracy to commit murder simply because there were call logs showing communication between the Kumwembe and Manondo  and also Kasamabra when the Kumwembe and Manondo denied ever conspiring on the phone and no witness had lead any information or evidence as to what the appellants were talking about on the phone, the judge errored, the appeal notice indicates.

The judge is also faulted  in holding that the motive of attempting to kill Mphiwyo was that he was being pressurized to make some payments to friends of Kasambara when in fact “no evidence was led “ that any of the alleged beneficiaries were friends of the former justice minister.

It said both prosecution’s witnesses and defence witnesses had proved that there were no such threats but that Mphwiyo and Kasambara  were friends and Mtambo himself had in his ruling of case to answer refused to accept this theory of the case by the prosecution.

The appeal says  the call log evidence had  only located Kumwembe and Manondo  to have been Lilongwe on the morning of 13th September, 2013 when Mphiwyo was shot at in the evening of the September 12.

Mtambo has also been fingured to have made an error in law forrefusing to recuse himself “when there was ample evidence of him being apparently biased”.

The appeal said Mtambo’s bias was “right from the start of the case all the way up to the time when he capriciously revoked the bail” for the Kumwe and Kasambara.

Mtambo’s controversial decision to find the three guilty brought attacks from many quarters and especially that his written judgement had not been made available.

He has however set August 22 2016 to hear submissions of both the State and the defence before handing out the length of custodial sentence.

Under the Penal Code, the offence of attempted murder carries a maximum sentence of life imprisonment whereas conspiracy to commit murder attracts a maximum jail term of 14 years.

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