The High Court in Lilongwe has reserved its ruling of the application by lawyer Powell Mkhutabasa representing Cashgate suspect Auzius Kazombo-Mwale, in the on-going K2.4 billion cashgate cases, who asked the court to recommend for independent doctor to certify his client if he is fit to stand the trial or not.
Kazombo-Mwale on Monday collapsed in the High Court sitting at Lilongwe City Council offices, prompting judge Esme Chombo to grant him leave of the court for medical attention.
“The issue I want to address the court on pertains to the health of my client, whom we have all seen collapsing in court and even lying on the floor outside the court today because his blood pressure shot very high and he also had problems with his sugar levels,” he explained.
He said he appreciated the fact that the judge had already determined that the third accused may be excused and take as much time as he needs to recuperate and recover; and, that therefore his presence in court can be excused until such a time that his health has improved and is able to sit in court and follow the proceedings.
“[But] you may wish to know, my lady, that on the 12th of February 2017, we wrote the State and copied the court requesting that his passport should be released to him to allow him to travel to India where around that time he was scheduled to consult, see and access medical attention and help.
“You may also wish to note that on 19th April 2017, the State responded to that letter and, in short, stated that his health was to be reviewed first by Kamuzu Central Hospital personnel before he can be allowed to travel [to India]. And they further responded that the release of the passport would constitute a waiver of his bail conditions. And as such, the State was unable to release the passport,” he submitted.
Mkhutabasa pointed out that as a result of the circumstances he had highlighted, his client would be absent and therefore not following the proceedings, which would expose him to miscarriage of justice.
“We were informed that we may need to make an application in court. That withstanding, we are not blaming the State. The accused didn’t travel to India and his health has deteriorated as exhibited in this very court through circumstances that I have just highlighted.
“The accused person and I have a relationship of lawyer and client. And we share extensive notes. And his absence has taken away that privilege on my part. It should be noted that it is my client who is facing trial, not myself. And that if he has to be represented and defended, he needs sufficient and adequate representation,” he stressed.
Mkhutabasa sought the direction of the court whether the hearing would proceed in the absence of the accused.
But Director of Public Prosecution Mary Kachale ontended that the defence lawyer was to blame for failing to follow necessary procedures to move the court to waive bail conditions of his client.
Kachale asked the court not to entertain the application as it lacks backing without the medical report from the certified doctor
She told the court that if there is anyone to be blamed for the delay is Nkhutabasa who was told on what to do to get back the passport through a court application asking for bail condition waiver a thing he never did.
The top prosecutor further told the court that told the court tthat on 12th April, 2017 an application was to do with eye problems and that Kazombo is now suffering from Blood Pressure and Sugar and that there’s no link that Sugar, BP lead to blindness of an eye.
On fit to stand trial, Kachale said according to the law, the fit to stand trial pertain to mental health or any other serious cases.
Kachale told the court that “in an absence of proper medical document this application must not be entertainment.”
In her ruling, Justice Chombo reserved her ruling to later date advising Nkhutabasa to address the court on what has been happening since then and where it is now”
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