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.

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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