Malawi Supreme Court of Appeal Judge Dustan Mwaungulu has dismissed an application by the State for him to stop presiding over a bail request by convicted former minister of Justice and Constitutional Affairs Ralph Kasambara and two others.
Delivering his ruling yesterday, Mwaungulu said based on Section 9 of the Constitution, among other documents, Director of Public Prosecutions (DPP) Mary Kachale failed to prove that the judge’s conduct demanded recusal from the case.
The ruling followed an application by the DPP for the judge to recuse himself from the case on the basis that he commented on the matter on a Malawi Law Society (LS) Google group; hence, his comments might compromise his impartiality.
Kasambara and his co-convicts—Pika Manondo and MacDonald Kumwembe—applied to the Supreme Court for bail pending an appeal against their conviction.
In her argument, the DPP said by publicly commenting on aspects of the matter, Mwaungulu had breached the judicial code of conduct which does not allow judges to comment on cases that are pending or already in court.
But sitting as a single Supreme Court judge, Mwaungulu dismissed the application, saying the evidence by the DPP did not show that he or the rest of the commentators commented on or discussed the case at hand.
“The evidence actually shows that from 4 October 2016 14.54 when Dr Sunduzwayo Madise logged Kumwembe and others v Republic on the Malawi Law Society Google group up to the last comment on Wednesday, 19 October 2016 at 6pm, nobody, as in everybody, never as in ever mentioned or discussed Kumwembe case at all,” reads in part the judge’s 47-page judgement.
He observed that the DPP never laid evidence, and therefore, never proved her assertion that any person discussed or commented on the case.
“This is, therefore, not a case of automatic disqualification or recusal. At the most, it is a case of apprehension or possibility of bias. In this respect, therefore, there must be proof of conduct for such apprehension or possibility… The application for recusal is, therefore, refused,” said Mwaungulu who took two hours and 31 minutes reading his ruling.
After dismissing the application, lawyers representing Kasambara, Manondo and Kumwembe immediately asked the court to proceed at 3pm, but the DPP and the judge both said they were not ready.
The parties then agreed to meet next Thursday, September 21, when hearing on the bail application would begin.
In an interview, the DPP said she was not ready to say anything as they were still digesting the ruling “before deciding the way forward”.
On his part, lawyer for Kasambara, who is the third convict in the case, Lusungu Gondwe, said the defence was happy with the ruling on recusal.
“It represents the correct position of the law. It would be dangerous to our constitutional order if judges recused themselves each time the Director of Public Prosecutions makes fanciful allegations against them,” said Gondwe.
Kasambara and his colleagues filed the application for bail pending appeal in March 2017 and hearing was scheduled for April 2017 but it failed due to the DPP’s application for recusal.
Unlike during the previous appearances, yesterday there were a handful of people present with politician and lawyer Bazuka Mhango, politician Ziliro Chibambo and People’s Party (PP) spokesperson Noah Chimpeni being the known figures.
Kasambara, who was present alongside his co-convicts, looked calm and cheerful and as the judge read his ruling he was frequently seen taking notes .
The trio was convicted last year after being found guilty of conspiracy and attempt to murder former Ministry of Finance budget director Paul Mphwiyo outside the gate of his Area 43 residence in Lilongwe on September 13 2013.
Kasambara was sentenced to 13 years imprisonment while Manondo and Kumwembe were given 15 years each. n