The missing records in Malawi courts had been a crisis for a long time. Cashgate suspect and former Ministry of Finance budget director Paul Mphwiyo has had to be asked by the High Court in Lilongwe to submit fresh application after his bid to seek clearance from travelling to South Africa could not be approved following the missing of his file.
Mphwiyo wants to undergo a medical attention on his jaw following his shooting on September 13 2013.
High Court judge Esmie Chombo said Mphwiyo need to furnish the court with “full details and the necessary documentation in support of the application”.
According to the ruling by Judge Chombo, is the file which contains Mphwiyo’s prior applications, has gone missing in the Lilongwe Court Registry. It means the whole medical history of his referrals and earlier determinations made by the same court were not available in the current determination.
In the current application, the ACB, which is in custody of his passport, did not object to his application as having travelled twice even without being given any escort, the ACB must be convinced that the applicant is not a flight risk.
Initially, some of his bail conditions, given by the same Judge, were that he could only travel outside the country upon the written permission of the Director of the ACB responsible for prosecution. When the ACB denied his first application, his lawyers made an application before Judge Chombo to vary his bail conditions.
Upon granting the application, some of the conditions for external travel were that he should be surrendering his passport to the Malawi High Commission upon entry in South Africa and that the ACB will be providing an officer to escort him. He has since travelled twice for medical treatment without escort and returned to Malawi to continue fulfilling his bail conditions.
In her determination, the Judge further states that “The State was then represented by a different officer whose outlook to the matter was not the same as the DPP.”
But legal commentators who spoke to Nyasa Times argued on what basis does the Judge assert that the officer who was representing the State before, probably from ACB, has an outlook to the matter which is different from that of the top prosecutor Mary Kachale.
For instance, one of the issues raised in the determination is that Mphwiyo has the onus of demonstrating to court that waiving the condition of bail to release the passport serves the interest of justice.
“To the contrary, one can only be denied a relaxation of bail conditions if it is in the interest of justice that there be no relaxation. It is for the State to show that not the other way round. More importantly, medical attention is a right and its denial without valid justification is a breach of that right and it is again for the State to demonstrate why it should be denied,” commented one legal expert.
In assessing whether Mphwiyo is a flight risk or not, Judge Chombo skirts around the issue but effectively labels the gun-shot survivor as a flight risk “by proxy” because two other suspects, Misozi Chanthunya and Limumba Karim disappeared in South Africa.
“ The same Judge, in granting variation for bail conditions in a previous application, put in place conditions that the State is at liberty to provide an escort to Mphwiyo and that he should be surrendering his passport to the Malawi High Commission upon entry into South Africa. Without demonstrating that this regime did not work and/or Mphwiyo flouted any of the conditions, it is impossible to arrive at the conclusion that he is a flight risk,” observed another lawyer.
Legal commentators also find serious inconsistencies in the ruling. For instance, the Court agrees with the State that because Mphwiyo’s alleged conspirators for his attempted murder are no longer on bail, there is now no need for secrecy to hide his identity as “Unknown Whisky” when going for medical attention abroad.
Surprisingly, the same Court agrees with the State in seeking clarification leading to the circumstances under which Mphwiyo acquired the identity of “Unknown Whisky.”
“ If the Court agrees with the State that previously there was need for secrecy to hide the Mphwiyo’s identity because his assailants were still on bail, why would the same Court then agree with the State in seeking clarification leading to the circumstances under which the Applicant acquired the identity of ‘Unknown Whisky?’ Surely, is it not obvious that both the State and Court surely know the circumstances of that identity? After all, is the court really competent authority to guarantee someone’s safety?” observed a legal commentator who declined to have his name published.
Lawyers also said they find no merit in the determination that Mphwiyo should provide proof of payment or payment plans as required by the procedure he is to undergo.
The legal commentators say there are many issues that one can raise with Mphwiyo’s ruling and indeed most rulings made in the past with respect to cashgate cases.
“My take is that the legal fraternity is yet to engage in honest discussion and assessment of most rulings made so far because some of them, truth be told, sound more like social media outbursts in the court of public opinion and would not stand any chance in any reasonable court of law. That is important because a competent and impartial judicial system is paramount to the advancement and entrenchment of democracy and the rule of Law,” the commentator said.
Mphwiyo is facing charges of theft and money laundering K2.1 billion ($4.7 million).
He is on a K10 million bond, bonded his Area 43 house and four cash sureties worth K2 million each.
But he is a victim of the shooting outside the gate of his Area 43 residence in Lilongwe when he was budget director in the Ministry of Finance.
Former justice minister Ralph Kasambara, Pika Manondo and McDonald Kumwembe were convicted and jailed on the attempted assassination of Mphwiyo.
Apparently, the arrest of accounts assistant Victor Sithole – currently serving nine years in jail with hard labour for his part in the K24 billion ($53.3 million) “cashgate” corruption scandal – in August 2013 kick-started what became known as the “cashgate” affair – the worst financial scandal in the country’s history.
It became public knowledge a month later following the shooting of Mphwiyo.Follow and Subscribe Nyasa TV :