Law scholar finds Kasambara’s jail term ‘manifestly excessive’: Queries Judge Mtambo for abusing  judicial power 

South Africa-based Malawian professor of law, Danwood Chirwa, has  found that the sentence of  13 years imprisonment with hard labour (IHL) handed down to former justice minister Ralph Kasambara for conspiring to murder former budget director Paul Mphwiyo is ”manifestly excessive.

The maximum sentence for conspiracy to murder is 14 years imprisonment with hard labour.

But in the legal scholar has argued that the Mphwiyo shooting case was not being conducted fairly as presided by Judge Micheal Mtambo.

“The sentences that have been imposed on the three accused are so manifestly excessive as to suggest an abuse of judicial power,” argued Chirwa  a professor of law at the prestigious University of Cape Town in South Africa.

Judge Mtambo also handed down custodial sentences of 15 years and 11 years IHL on  convicted   former Malawi Defence Force (MDF) soldier Macdonald Kumwembe and businessperson Pika for the two counts of attempted murder and conspiracy to murder, respectively. Attempted murder carries a maximum of life imprisonment.

Manondo and Kumwembe’s sentences will run consecutively, meaning they will serve 26 years in prison.

In his commentary that has circulated on social media, Chirwa  noted that the High Court has imposed setences that are close to the maximum sentences and in the case of Manondo and Kumwembe, the court has imposed a sentence that “ exceeds what may be imposed on a murder charge by abusing the successive sentencing rule.”

He argues: “ These sentences cannot by any stretch of the imagination be justified under our normals rules of sentencing and under our Constitution which requires our criminal justice system to be humane and fair.”

The conviction judgment delivered by Judge Mtambo has also been faulted by the legal expert as “ a disappointment in terms of both the carelessness with which it was written and the substantive grounds on which the convictions were based.”

He  also faulted Judge Mtambo for withholding the judgment from the convicts for days, without  justification.

“ If the judgment was not ready, why was the hearing not postponed? By not releasing the judgment, while revoking the accused’s bail, the Court knowingly prevented the accused from filing their appeal and applying for bail at  the earliest opportunity,” he stated.

He criticised the judgement as being made with errors in law.

“It is clear the case of conspiracy rested on call logs. The impression we got about the call logs from  the media and what is in the judgment are so divergent. The call logs in the judgment are so ridiculously few, spread over a period of time that without transcripts cannot form a basis for supporting the conviction.

“The inferences the Court drew from certain call logs can never be accepted as the only reasonable inferences. Not only did the inferences drawn by the prosecution change at different times, those drawn by the Court differ from the prosecution’s and from page to page. It should have taken more for the High Court to bypass the Supreme Court’s judgment warning about basing a conviction solely on untranscribed call logs,” Chirwa argued.

The law professors said the sentencing proceedings are not important “ in the bigger scheme of things” as the case will ultimately be decided on appeal.

“ And there’s a strong chance of success by the accused on appeal.  But we must be vigilant in protesting against abuses of power whenever they occur. I have great respect for the judge concerned. But on this instance, he’s succumbed to prejudice and let the law down,” Chirwa wrote.

Both Director of Public Prosecution Mary Kachale and her deputy Enock Chibwana said they were satisfied with the outcome of the case and the sentence imposed on the convicts.

The shooting of Mphwiyo outside his house in 2013 opened a can of worms on high profile corruption  scandal which was christened as Cashgate.

Soon after the shooting incident, several government officials were arrested with suitcases and bags of money stashed in the boots of vehicles.

Mphwiyo  is currently answering charges of theft and money laundering in relation to the Cashgate scandal.

The gunshot survivor is suspected to have stolen or laundered about $3.3 million in 2013 when he was Malawi’s Budget Director.

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