Mphwiyo shooting, evidence and facts check so far: Malawi ‘cashgate’

The High Court in Lilongwe hearing the former budget director Paul Mphwiyo’s attempted murder case adjourned to the middle of March when it will resume hearing further evidence from the prosecution. I am aware of the remits of not commenting on matters which are court. This is a long standing rule but having recently followed the televised court case involving Oscar Pistorious in South Africa, I said alas! Why not do the same with the Mphwiyo case which is probably in the same category of other high profile cases.

  The Accused

In this article, I will analyse the evidences and offer my opinion whether the State will be able to reach a high threshold of proving beyond reasonable doubt to secure a conviction of attempted murder and conspiracy to murder by the accused:  Macdonald Kumwembe (a former soldier with Malawi Defence Force), Robert Kadzuwa (  a former soldier with Malawi Defence Force), Pika Manondo (a friend of Paul Mphwiyo and a brother of Dauka Manondo), Dauka Manondo (a friend of Paul Mphwiyo and a brother of Pika Manondo), Raphael Kasambara SC (former minister of justice) and Oswald Lutepo (a businessman and friend of Pika Manondo and Paul Mphwiyo).

On Friday, 13th September 2013 night, a flamboyant young man called Paul Mphwiyo was shot with three bullets but lucky enough he survived to tell his story of why he was shot, who shot him and secure their conviction by the court.  Following the attempted murder shooting four of the accused above were initially arrested.

As the case progressed businessman Oswald Lutepo who is answering multi-billion Kwacha theft and money laundering charges was added as an accused person. So in total six persons are being tried of the offences of attempted murder and conspiracy to commit murder.

The Case

The case before the learned Justice Dr Michael Mtambo is to determine and settle the dispute is who organised the shooting of Paul Mphwiyo and who really did the shooting. 

Witnesses

So far the State has paraded 9 witnesses.  Below is a quick facts check so as to inform the esteemedNyasa Times readers what has transpired in court so far.

The first witness was Charles Singano security guard at Paul Mphwiyo’s posh residence in Area 43. Singano told the court that around 11pm on hearing the sound of a familiar car that he rushed to open the gate but just before opening the gate, he peeped through small window of the gate and saw a tall slim young man wearing a mask talking to his boss.  Before he could finish opening the gate he heard the sound of a gun and actually saw this young man shoot his boss.  The shooter was alone. His boss immediately surged forward with the car and in the process pushed down the gate.  He suffered injuries in the process.  There was no other car in the vicinity; and the next car to arrive at the scene was that of the police after midnight.  The victim was rushed to the hospital by the wife, Thandi.

The second witness was the victim Paul Mphwiyo himself. He told the court that as a Budget Director he was receiving a lot of pressure from politicians such as Ralph Kasambara SC, Henry Phoya SC, Brown Mpinganjira and Hophmally Makande amongst others. Mr Kasambara used to send Makande, Pika Manondo and Patrick Gadama to pressurise him to make payments of money owed by government to friends of Kasambara. He refused to budge and as a result he was threatened to be dealt with. So when he was shot he did not doubt as to who had organized the shooting.

On the material day (13^th September 2013) he left office as usual and visited two drinking places. On his way home around 11pm as he was approaching the gate, he saw several people in a nearby bush close to his house at a distance of about 3 to 5 metres away. He could only recognize two: Kasambara and Manondo. A tall and slim man surged forward and shot him three times. He thrashed forward the Toyota Fortuner car he was driving. He was bleeding profusely. Got into the house and asked his wife to take him to the hospital. After getting local treatment, later in the day he was flown to South Africa for extensive treatment. 

Whilst in South Africa two statements were recorded from him by investigators. First it was the police that recorded the statements of the events of the day. On 29th October, 2013, Paul told the police that he did not know who shot him but a slim young man. Coincidentally by this date Kasambara had been relieved of his post as a cabinet minister as justice minister.

In a subsequent statement given to Anti Corruption Bureau (ACB) on 19th November 2013, Mphwiyo mentioned Pika Manondo as the person he saw with the shooter.

Ten days later whilst in Malawi, once again, Paul gave a second statement to the police where Pika Manondo and Ralphael Kasambara were mentioned as persons who were standing next to the shooter. He estimated that the shooter was about 3 to 5 meters away from his Toyota Fortuner he was driving that night.

Mphwiyo said he had been warned by Mpinganjira that Makande had said that he (Mphwiyo) had 10 days before being shot. Having grown tired of threats, Mphwiyo confronted Kasambara over it and that was few weeks before he was shot. 

The third person to testify was Mrs Rhoda Ndovi.  Her testimony was basically that in the early hours of 14th Sept 2013 (around 6 am) Dauka Manondo driving a car that looked like Toyota Surf knocked at their gate. She opened for him as he was family friend. Dauka told her that he was running away from people who shot Paul Mphwiyo. The said people were after him and his brother Pika as they were believed to be Mpwhiyo’s friends and had lots of money.

Mrs Ndovi said in her opinion Dauka is someone who just loves beer and not a violent person. And that this was not first time for him to come to their house early in the morning as he had done so before whilst both of them were residing in Zomba.

Fourth witness was Mphwiyo’s brother in marriage, Gabriel Rashid who resides in Area 49 Dubai. He told the court that he got a call from Thandi (Mphwiyo’s wife) that her husband had been shot and were at Kamuzu Central Hospital. They needed him to go to their Area 43 house and collect clothes for them as their clothes were soaked in blood. He drove in his Toyota RunX to Area 43 and collected the clothes. On his way to the hospital whilst in Area 43, just after some T- Junction he was dazzled by full lights of a car behind him. The Toyota Hilux car started chasing him and he overheard someone in the car shout to the driver that the driver should smash the left hand side of the car.

Miraculously, he outmanoeuvred the chasers despite their car being faster than his Toyota RunX then came into Area 18 Lingadzi Police Station where he sought refuge.

Mr Rashid was later on given a lift by Mr George Mwale to KCH. In cross examination he admitted that in his earlier written statement he had indicated that it was the Police that gave him a lift to HCH. He also conceded that naturally a Toyota Hilux double cab cannot be outpaced by a Toyota RunX especially in a rough road without bitumen but explained that it was God driving him that night. 

Mr Rashid admitted that sometime after the incident Police invited him to identify a Toyota Fortuner that was either silver or white in colour (he could not recall the colour) if that was the one that had been chasing him on that fateful night.

Fifth witness was Dr Hetherwick Ntaba who told the court how he rushed to Area 43 MASM clinic to attend to Mphwiyo and how he took him to Kamuzu Central Hospital for intensive treatment. He also articulated on how he saved Mphwiyo’s life.

Sixth witness was another surgeon Dr Carlos Varela. Again he narrated how he attended to Mphwiyo and nature of the wounds from the bullets.

Seventh witness was a lawyer Yambani Mulemba who testified that he was called by Thandi (Mphwiyo’s wife) asking for phone number of Dr Varela. That is when he heard about Mphwiyo being shot. He gave her the number and later on rushed to the hospital. The following morning he again went to the hospital where he saw many well wishers including the victim’s aunt, Mrs Esther Chioko; the accused Pika Manondo and Oswald Lutepo.

Later in the day, Thandi asked him to collect Mphwiyo’s medicine from the Toyota Fortuner ZA7171 he had been driving on the fateful night. Mulemba said he collected personal items such as phone, phone chargers and an A5 envelope which was wrapped and had what looked like medicine but did not check full contents of wrapped up envelope.

The eighth witness Jesse Mussa Kafuwe an ex-worker employed as housemaid by Kasambara. Her testimony was to the effect that she was fired by Mrs Kasambara, a woman that ill-treated her and does not like either. On 13 September 2013, Phwiyo came to the house in Area 10/456 at about 2pm and left close to 6 pm. He brought with him a bag full of money and gave it to Kasambara.

She saw the money in a bag when she was cleaning Kasambara’s bedroom after 6 pm when Kasambara had left the house. Co-accused Pika Manondo came after Kasambara had left the house after 6pm and drove away in Kasambara’s latest personal Mercedes Benz registration NB4325.  Besides the Benz, there was a Toyota VX, another Mercedes Benz, minibus, coaster, BMW and two 3 toner trucks.

Mrs Kasambara was at work that day and Kasambara did not go to work that day. The next day whilst Mrs Kasambara was driving her to Lilongwe Golf Club where she was to babysit Kasambara’s son was attending a friend’s birthday party, Mrs Kasambara told her that the gentleman that came the previous day (referring to Mphwiyo) had been shot. Kasambara collected her and the son in the evening.

Kafuwe told the court that when she was fired and on her way to Blantyre, Mrs Kasambara called to warn her not to spread rumours that Kasambara’s Benz was involved in shooting of Mphwiyo. She further also testified another day Kasambara brought a carton/box full of guns from Dubai.  She knew that they were guns because she was told so by Mrs Kasambara.

Ninth witness was Chifundo Benson a resident of Balaka Township who told the court that the number appearing on a deposit slip of money into first accused (Kumwembe) account was his phone number but he was not Allan the depositor.

Facts Check

So far that is the evidence before the court.   During cross examination the second witness (Mphwiyo), the court ordered that the Mercedes Benz belonging to Kasambara and a Toyota Fortuner belonging to the third accused Pika Manondo be returned to the owners. The reasoning was that the car involved in the shooting is a black Toyota Hilux double cab.

The court has heart the descriptions of the shooter from the only two witnesses. Singano, the security guard who says it is a tall slim young man and he was all by himself. He shot Mphwiyo while talking to him.  Mphwiyo says that he was shot from a distance by a tall slim young man accompanied by others. Where he was shot from the guard could not see and the guard’s testimony has not been disputed by the accused.

Mphwiyo’s testimony has some doubts which Justice Dr Mtambo will have to deal with. From a distance and in a tinted window car, and being night time, it is difficult to believe his evidence. Then Mphwiyo has to answer this question: Why didn’t he tell the Police when they asked him in October 2013 about Kasambara? Surely, he could not have been afraid of Kasambara as by then he had ceased to be a minister. When asked again in November 2013 by Anti Corruption Bureau he only mentioned the third accused Pika Manondo.

Mphwiyo’s identification of his shooter as first accused MacDonald Kumwembe is not believable because he is not slim. Then there is the issue of a passport for the first accused which shows that he only returned to Malawi on 14th September after the shooting of 13^th September 2013. Finally, the Police have failed in their prosecution by not conducting any identification parade hence Justice Dr Mtambo cannot admit the first accused identification in court as evidence.

Now I deal with the testimony of Kasambara’s ex-worker which is fraught with difficulties as it is hearsay. Kafuwe sounded as repeating what she heard from someone who is not said to have been involved in the shooting or planning of shooting. Justice Dr Mtambo will struggle to believe this evidence within the remit of beyond reasonable doubt. Hearsay is not admissible in court as evidence. Kafuwe has also admitted in court to hate Mrs Kasambara therefore more likely have skewed and biased her testimony to score a point.

Thirdly, her testimony of events of 13th September 2013 is hard to believe because Paul Mphwiyo denies having gone to Kasambara’s residence in Area 10. Nyasa Times and other media houses wrote about the meeting of visiting Lake Malawi boarder dispute Forum of former president Chissano and Mbeki on 13th September 2013. The fourth accused Kasambara spent the whole afternoon in the grounds of Kamuzu Palace.

It has been submitted to the court that on the 14^th September 2013, Kasambara was with former president Mbeki in Salima accompanied by his son using the very same Benz that Kafuwe says had number plates removed. There is an issue of believability to her birthday testimony because the same day, the son was sharing chamho fish with president Mbeki in Salima surely not at Lilongwe Golf Club.

Missing Court exhibit

Material evidence in form of the ZA7171 Toyota Fortuner car purportedly owned by Mphwiyo was not exhibited in court or at his area 43 house when the court convened there. Paul had already sold it before

Crucial evidence was tampered with and removed by his lawyer friend Mulemba. Mphwiyo knows what was removed to be hidden. These pieces of evidence have not been presented to court as exhibits.

Contradictions

Mphwiyo’s position where the alleged shooters stood differs from that described by Singano the security guard on duty and is said to be a point that (the guard) could not have seen the attackers.

Police failures

Police failed to secure a crime scene and preserve crucial evidence which would have been exhibited to court before Justice Dr Mtambo let alone subjected to forensic examination.

Conclusion

This is my summation of the events which have transpired in court during the sessions. The crucial question on the case hinges on one point, thus Paul Mphwiyo telling the nation the truth as to why the accused would want to end his life prematurely?  The issue of payments to suppliers who are friends of Kasambara, Phoya etc is not holding water at all. Is he hiding the truth? You judge.

• NOTE: Edwin Mapira is a legal commentator based in Blantyre and friend of the Court. He writes in his capacity.

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