Kasambara’s appeal: Lawyers, Judge Mwaungulu fight recusal demands by DPP Kachale

Supreme Court of Appeal Judge, Justice Dunstain Mwaungulu has refused to go down without a fight, challenging Director of Public Prosecution (DPP) Mary Kachale’s demands to recuse himself from bail application case involving convicted former Attorney General (AG) and Minister of Justice and Constitutional Affairs, Raphael Kasambara and two others.

Justice Mwaungulu: State wants him to recuse himself

Kachale on Wednesday morning made formal application to the court, insisting Justice Mwaungulu should recuse himself as he is prone to be biased in his verdict following negative comments he made on a related case where the court denied Kasambara’s fellow convict, Macdonald Kumwembe bail.

Kasambara currently serving a 13-year sentence at Zomba Central Prison for conspiring to murder former budget director Paul Mphwiyo together with fellow convicts, Macdonald Kumwembe and Pika Manondo are challenging their prison term.

It’s now eight months since the three were incarcerated.

Kachale insisted her formal application is not a personal attack on the learned judge but rather a right way to ensure impartiality is exercised in the way the case is handled.

She said Justice Mwaungulu demonstrated he would be bias in his verdict based on negative comments he made over Kumwembe’s bail application, arguing code of conduct does not allow judicial officers to comment on court pending cases.

But Justice Mwaungulu and lawyers representing Kasambara, Kumwembe and Manondo ganged up against Kachale’s application, arguing the said comments were made on different case and won’t have any bearing on the current bail application.

Justice Mwaungulu while conceding that it was painful to be asked to recuse himself from the case insisted his impartiality and overall conduct as a judge cannot be questioned.

He further asked Kachale to clarify what kind of biasness his comments would cause in the current case as the current bail application differs from the one he commented on.

“Does it mean that judges should not preside over cases when they have contrary views?” questioned Justice Mwaungulu.

Kachale, however, maintained the demands to have a neutral judge who has never commented on any related issue, and noted that the current case might be presided over by three judges instead of one- as is the case currently- because the Supreme Court is at meantime divided on the matter of impartiality.

Kasambara’s lawyers, Modeccai Msiska, Senior Counsel (SC), and Wanangwa Hara backed Justice Mwaungulu, arguing there is no law which stops a judicial officer from commenting on a principal of law topic like Mwaungulu did.

They further argued that Justice Mwaungulu was engaged in a health discussion and did not make his own conclusions on the said case.

Lawyer for Kumwembe and Manondo, Micheal Goba Chipeta concurred with his fellow lawyers, describing Kachale’s argument as misplaced as there is no law that prohibits judicial officers from making extra judicial comments court pending cases.

Meanwhile, the case has been adjourned to a later date when Justice Mwaungulu will announce on whether he will recuse himself or continue presiding over the case.

Kasambara and his fellow convicts are arguing among other points that they are unlikely to abscond bail as they are Malawian citizens with assets in the country and that they have a right to bail pending appeal subject only to interest of justice.

Mphwiyo’s shooting outside the gate of his Area 43 residence in Lilongwe on the night of September 13 2013 is widely believed to have led to revelations of the plunder of public resources at Capitol Hill.

Former president Joyce Banda ordered an audit undertaken by British forensic audit firm, RSM (formley Baker Tilly), covering the period between April and September 2013. The audit established that about K24 billion ($32.9 million) was siphoned from public coffers through dubious payments, inflated invoices and goods or services never rendered.

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31 thoughts on “Kasambara’s appeal: Lawyers, Judge Mwaungulu fight recusal demands by DPP Kachale”

  1. mphuno ya wakhwithu says:

    Atumbuka inu musatikwane……

  2. chidothidothi says:

    judges need to b highly disciplined in making comments. Mwaungulu & Mtambo cannot b compared coz Mwaungulu commented on a similar case hence this fear. Kumaona zinthu zochita ma conment. Kachale has every reason to worry coz the judge acted unethically.

    I have no problem the tribe of the defence team. We r all Malawians. After all, mwaona lero kuti most judges are from the north? Let Kachale be heard coz she has a point..

  3. true says:

    WILIAM WAKAFA

  4. When Kasambara wanted Mtambo out of his case Kachali kunali kukana mwa m’tuu wagalu kunena kuti he was only trying to delay the case, pano game yakutembenukira ili ndi Dziko alhomwe sakuthandizapo ndi m’bale wako Mtambo. Koma usaope sikuti akamupatsa bail Kasambara , Manondo and Kumwembe ndiye kuti akusaka they are now only seeking justice and don’t be an accessory to delayed justice madam Kachale. By the way waiona combination yatumbuka apa akuthandizanatu mwa smart

  5. Auphie Banda says:

    It was the same wth Mtambo so y this time around?Let Mwaungulu preside,mind u Kachale dziko ndilozungulira,

  6. kk says:

    JUDGE WA CHITUMBUKA MULANDU WA KASAMBALA MNNNNN

  7. Mjomba wa pa Utale says:

    Modeccai Msiska SC, Wanangwa Hara, Justice Mwaungulu, Michael Goba Chipeta and achina Wapona Kita, John Gift Mwakhwawa ndi ena otero in the background, I think Ralph Kasambara amutulutsa pa bail basi. Boy oh boy, these are very smart lawyers in Malawi. Mary Phikiso Kachale wachepa nazo! Atumbuka ali bwino pokhapa, they really come together to help one of their own…. Bravo ambwenumbwenu inu!!!

  8. NICHOLAS C says:

    kachale is playing Mafia tactics in- order to delay justice, mind you now your appearing at the highest COURT in Malawi mind your mouth and reasoning otherwise your can mess your career don’t be used LEARNED LAWYER polticians can eradicate your career madam to is this DPP GVT tomorrow another GVT which school of thought madam you studed, don’t you know the history of Nyasaland by the way do you know the late Barrister ORTON CHIRWA AND HIS WIFE VERA, There were thrown in jail for nothing but both was learned and respectable lawyers just becoz of politicians so madam beware ili ndi dziko watch out you must be next BLACK JESUS profecise watch your back LEARNED LAWYER.

  9. Meke says:

    Kachale has a point. Mwaungula should recuse himself. Judges should be careful what they say on social media.

  10. Mudzamva liti says:

    Mwaungulu chokanipo apa. Mukulimbikirapo pali chiyani? Atumbuka!!!!!!!!

  11. garnet kajiya says:

    MWAUNGULU anaynkhula za CHAPONDA. bwanji boma sanakambe za recusal…DPP anakana za mtambo kuchoka…lero wasintha thabwa poti wakumana ndi fair judge

  12. Layasi says:

    the bad thing with this case is that Kachale has personal issues in this matter, the comments that Justice Mwabungulu commented was of different matter, che kachale must know that there are no law in Malawi which doesnt allow the judicial officer from commenting judicial proceeds. apanso nanu mwayiyamba nkhondo ndi Justice Mwabungulu ngati Kasambala ndi Justice Ntambo

  13. Mugonapamuhanya says:

    If Mwaungulu has nothing to hide he should recuse himself because his judgement will not be seen to be neutral. When a judge’s neutrality is questioned, the right thing for him is to recuse himself otherwise why is he sticking to the case as if he is the only judge? Suspicious. Blood is thicker than water syndrome. Tikukuonanitu anganya inu.

  14. Kanthu Ako!! says:

    Why are we Malawians so stupid?

    Kasambala is serving time (13 years)

    Yes he can appeal, but that does not mean he should be given bail.

    He has lawyers who will handle his appeal while he is serving his time.

    Most of the people who support Kasambalas bail are crooks who have probably already found him a route for leaving the country. Malawi is a rotten state with rotten characters.

    Kasambala is a convicted murderer, and you want him out of jail?, So why do we trials.

    Common sense dictates that after all this really Mwaungulu can not preside on this case.

  15. Nkhwiko says:

    @ confession, it is because northerners top the Judiciary, 90% of lawyers in Malawi are from North symbolizing brains!!!! Pali funso linanso?

  16. solomon says:

    lende nkukankhana.?

  17. Chimanga says:

    A mwaungulu awatululutsa ngati mmene anachitila Chaponda kumubwezela unduna koma Mulungu sanalole. Lero chaponda ndi nduna?

  18. Justice Mwaungulu must be ashamed for acknowledging that he indeed commented on case pending to be taken to court.Lero mukuti commenting a case in court is not a crime? Really? Regionalism is at its best,koma anakhala kuti Ralph is Mr.Chaponda ndiye munakawona a Zodiak,Times and many more regionalist radios,nkhani imeneyi anakaikoka mpaka one year.Fotseki

  19. The Liberals says:

    Following with open eyes and ears , the law is a bitch

  20. Trendex says:

    CHIWAMILA MBUZI KULUMA GALU OSATI GALU KULUMA MBUZI. MS KACHALE HAS A PROBLEM. SHE HAS A HUGE VENDETTA WITH THE TRIO IN JAIL. IS SHE REPRESENTING THE STATE AS SHE HAS A CASE TO ANSWER??? BOMA ILOOO!! TIYENI NAZO. SHE ALSO NEEDS TO RECUSE HERSELF BECAUSE SHE IS UNDER PROBE. ANYANI KUSEKANA PAMBUYO.

  21. Confession says:

    Msiska, Wanangwa Hara, Kasambara, Mwaungulu, Goba Chipeta mhhhhhh mxiiii.
    Mwaungulu already has a position. This is a case of blood being thicker than water.

  22. Gwamula Gwamula says:

    The rise and fall of Mary Kachale. I didn’t know she was so daft. How do you just wake up and make reckless accusations against a senior judge like Dunstain? This is proof that pakati pa Mary Kachale ndi Mtambo kalipokalipo!

  23. Nambewe wa kwa Nkhanda says:

    Mrs Kachale mwayesesa koma your arguments yesterday in court were so emotional and rude. You did not exhibit substance, ie you needed to elaborate which comments directly linked to the case. Inutu ndi a Mtambo aja pang’ono pokha munali mbali imodzi. I remember you opposed vehemently Kasambara’s request for Mtambo to recuse himself..this time is YOURS. I am watching from the gallery and am related to your husband Chifundo and Ralph’s brother, Charles. I am impartial.

    1. muonosile says:

      osaopyeza DPP mphaka iwe mbwiyawo, related related so what you think you own this country, stupid nambewe

      1. Nambewe wa kwa Nkhanda says:

        stupid or not…One Yao/ Mlankho Girl (supported by Blue Crooks) against 10 Learned Tumbukas..He he he he kunditelo ine Nambewe kumva bwino bwanji. Very much RELATED. he he he…..olo Mbwiyawo kumene aliko wasekelera…

  24. Ngulenhi says:

    Kachale fears are not truly because of the comments mwaungulu made on a different case rather its because she knows that He will do justice without favour of any sort as Mtambo did by denying Kasambala bail. If Kachale was a real person of justice she could have first asked Mtambo to do so because He made direct neggative comments on kasambala which were clear than these that kachale is talking about. A Kachale musangopanga zokhomererana apa dziko ili ndilozungulila mumufunse Chaponda, mwinanso Bakili

  25. chikopa says:

    Let Justice Mwaungulu recuse (achite tchuzi). He commented on the matter
    and cannot therefore be neutral. Let the matter be heard by three judges and
    see if the outcome will be for that trio. There are a lot of convicts who never
    had luxury of bail while serving sentence. Why special this time? Let us not
    give special treatments. While Mwaungulu is seen independent, he is sometimes
    known to go for extreme side and not norm of law and this is the reason
    prosecution team is feeling woobly. The unfortunate part in this case is that
    too many people felt good when “Ilala Boy” was jailed and that is why nobody
    talks about him be it the CSOs, NGOs, Churches or media houses. This is sad
    reality of life. There is time for everything monga anena Mlaliki.

  26. john chinthili says:

    was in court. KACHALE s performance was embarrassing to say the least. judge asked her to say the exact words which infer to bias and she was mute. she spent all the time making personal attacks casting aspersions on the judges character. shame

  27. chikoti says:

    Osauka alibe mau

  28. mwene says:

    Bravo Mwaungulu amenewa akufuna kukutolani nkamwa tiye nazoni more fire achoke ndi iyeyo

    1. Chimika says:

      Kachale alibe nzeru.

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