Newly appointed High Court of Malawi Judge Patrick Chirwa says he will continue presiding over the case involving former minister of Energy Newton Kambala and two others in the magistrate’s court.
The judge, who until last month was chief resident magistrate at the Lilongwe Registry, was appointed High Court judge alongside six others by President Lazarus Chakwera on March 21 this year.
His appointment to the High Court prompted the defence to seek direction on how the case would proceed.
And in a court order dated April 20 2022, the judge maintained that he would continue to presiding over the case in which Kambala is being co-accused with former presidential aide Chris Chaima Banda and Aford president Enoch Chihana for allegedly attempting to influence the procurement of fuel at National Oil Company of Malawi (Nocma).
Chirwa argued that while there was no law that compelled him to transfer the case, practice has it that even after such promotions, judges from the High Court have been allowed to preside over cases they handled as magistrates.
The defence lawyers submitted to the court on April 11 2022 a request to provide legal justification on why it wanted to continue hearing of the case after it was moved to the High Court.
But in response, Chirwa said: “In this court’s view, there is no law dogmatically stating that once a magistrate has been appointed a High Court judge she or he should automatically be relieved of the cases that she or he was handling as magistrate.”
The order, apart from citing cases of judges who continued presiding over cases they handled in their previous capacity as magistrates, also bases its position on Section 108 (1) of the Constitution which grants a judge of the High Court unlimited original jurisdiction to hear or determine any case, civil or criminal under any law.
Chirwa said: “This court is of the view that this includes ‘continuing jurisdiction’ in respect of cases such as judge of the High Court would have been seized of before being appointed as judge.
“One cannot in their right mind exclaim against a judge proceeding with a matter they had become seized of as a magistrate, on the ground of lack of jurisdiction.”
He further said some of the factors that must be considered include the stage at which the case is and the complexity of the evidence already on record at the material time and all these make “case management” sense.
In the case, the State has to date paraded two witnesses out of the possible five.
Besides a brief testimony from an official from the Public Procurement and Disposal of Assets Authority, the State has paraded Nocma deputy chief executive officer Hellen Buluma, whose testimony ran for three days and is yet to conclude.