Malawi Chief Justice defies law, steps aside in Chasowa murder case

Malawi Chief Justice Andrew Nyirenda has defied the law by voluntarily recusing himself from certifying a Constitutional review on the application by two of the suspects in the murder case of polytechnic student, Robert Chasowa, who want to be discharged from the case.

Doff Bottoman and Peter Petros through their lawyer Ambokire Salimu applied to the High Court in 2013 to be discharged from the criminal proceedings on ground that the delay by the State in prosecuting them is unconstitutional.

And Justice Nyirenda despite being the only person to certify Constitutional proceedings on
the application as stipulated in Section 9 (3) of the Courts Act- which confines the power for certification to the Chief Justice- he has opted not to do so, instead he has delegated the case to another judge.

Justice Nyirenda, while admitting to have delayed in making his decision, said on Friday he has been compelled to cede his authority after he found himself in a situation ‘where the law was
short-sighted’.

“While the power of certification is confined to the Chief Justice, out of necessity and in the overriding interest of the administration of justice, it is more than compelling that I exercise the inherent powers of the court and cede my authority over these proceedings to the next most Senior Justice of Appeal,” said Justice Nyirenda.

Justice Nyirenda said he was not suited to preside over the certification of the application considering his proximity and involvement with the events leading to the case as he chaired the Commission of Inquiry on Chasowa’s murder.

He argued that it was necessary to recuse himself from the case to avoid his determination on the matter to be deemed bias, saying it is important to preserve public confidence in the independence, integrity and impartiality of judicial system.

“While I could be convinced that I would live up to my oath of office to administer justice without fear, favour or prejudice, in accordance with the Constitution and the law, it is less than likely that fair minded and informed observers, having the facts and the background of the matter, would conclude that I proceeded without a real possibility of bias.

“Even if I was as important as I could be, nevertheless if fair minded persons would think, in the circumstances, there was a real livelihood of bias, I should give way”.

Commenting on Justice Nyirenda’s decision, Salimu said the Chief Justice applied a ‘Doctrine of Necessity’ – which is the basis on which extra-legal actions by state actors, which are designed to restore order, are found to be constitutional.

“I think the Chief Justice is breaking new grounds. Considering the politics surrounding the case; we welcome his decision,” said Salimu.

Application to be Discharged

Bottoman and Petros who were arrested on July 17th, 2012 and charged of Chasowa’s murder before were released on bail in October same year, want to be discharged from the criminal proceedings, arguing that the State has failed to provide evidence to incriminate them in the murder case.

The case has for years failed to go for trial despite government once instituting a Commission of Inquiry that implicated several ruling democratic Progressive Party (DPP) officials.

The application for an order to be discharged was expected to go for constitutional review following  the State’s protest that the two could not be let free based on Section 302A of the Criminal Procedure and Evidence Code, which doesn’t allow accused person charged with an offence whose maximum sentence exceeds three years.

The State argued that it was failing to commence trial as the case is “very complicated and resource consuming” such that it is yet to finalize investigating the matter- three years after Chasowa’s death.

However, Salimu pointed out that there was a need for the Constitutional review to decide on the interpretation and application of the provisions of the Constitution as Section 302A of the Criminal Procedure and Evidence Code was inconsistent with Section 42 (2) (f) (i) of the Constitution which entitles every person arrested or accused of alleged offence to a fair trial within a reasonable time after having been charged.

According to Section 5 of the Constitution any act of Government or any law that is inconsistent with the provisions of the Constitution shall, to the extent of the inconsistency, be invalid.

In October, 2013 Justice Kenyatta Nyirenda who has been handling the case forwarded the matter to the Chief Justice for certification of the proceedings as Constitutional.

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