Mtambo refuses to recuse himself

The High Court in Lilongwe yesterday jailed for four months the first accused in the attempted murder case of Paul Mphwiyo, MacDonald Kumwembe, for contempt of court for remarks deemed demeaning and derogatory.

Kumwembe had asked judge Michael Mtambo to recuse himself from the case on the grounds that he believed he would not be accorded a fair trial because the judge is compromised.

In communication to the judge, Kumwembe said: “It has been brought to my attention that your lordship curriculum vitae (CV) makes serious allegations about us the accused persons, including myself, exposing us to the general public as persons that are a serious threat to the public. Again in your CV, your lordship gives the impression that all High Court judges except yourself recused themselves from the hearing of this matter.”

Kumwembe further argued that the statement gave the impression that the accused persons were “such a bunch of notorious thugs that no one in their right sense would risk to handle their matters”.

He also expressed his discomfort with judge Mtambo for volunteering, in 2005, to represent Rubina Kaonga in a case she brought against Kumwembe’s co-accused in a conspiracy to murder case, Ralph Kasambara, when he was the attorney general after all lawyers had refused to take her case.

According to Kumwembe, one gets the impression that the judge has an axe to grind with Kasambara.

“From your narration, one gets the impression that you would go out of your way to make sure that Mr. Raphael Kasambara is not seen to be powerful as the public or other professionals see him to be. You present yourself as a modern day Robin Hood in so far as the dealings [with] Kasambara are concerned,” wrote Kumwembe.

He said the fact that after the court found him and his co-accused with a case to answer, the judge asked for an armed police bodyguard to escort him back to Blantyre was proof Mtambo regarded them as violent criminals.

“The State allocated you Mr Thom, a police mobile service officer to accompany you. This again confirms our suspicion that you regard us as violent criminals and persons who attempted to kill Mr Paul Mphwiyo. In other words, in your eyes, we are the culprits that shot and/or organised the shooting of Mr Mphwiyo,” said Kumwembe.

Kumwembe said it was against this background that he requested the judge to recuse himself from the case.

However, during cross-examination on his application, Director of Public Prosecutions (DPP) Mary Kachale asked Kumwembe if he understood who Robin Hood was, to which he replied: “I know Robin Hood, he was a judge.”

When Kachale asked him further if he was the sole author of the court document and not typed at Kasambara’s law firm, Kumwembe said he was its author and it was typed at a café in Area 4.

On how he got the judge’s security details, Kumwembe said he knew this from a police officer he was drinking with at Mogassa and told the court that he was once an intelligence officer.

In his judgement, Mtambo said the defendants’ actions since the case started were just delaying tactics.

“The application by the first accused is not different to what the third accused [Kasambara] had also made in the recent past,” said Mtambo, referring to Kasambara’s application in May for the judge to recuse himself for allegedly “playing the role of prosecution advocate”.

Mtambo dismissed Kumwembe’s application and has since adjourned the attempted murder case to September 23 and 24