Two convicts serving 26-year jail terms for conspiracy murder and attempted murder have written the Judicial Service Commission (JSC) on delays by the Supreme Court of Appeal in ruling on their appeal case.
Former Malawi Defence Force (MDF) soldier McDonald Kumwembe and businessperson Pika Manondo appealed against both conviction and sentence for conspiracy to murder and attempted murder of former budget director Paul Mphwiyo.
Their appeal was heard by a seven-judge panel on March 30 2022, after being filed in August 2016.
The two were convicted and sentenced in July 2016 alongside former minister of Justice and Constitutional Affairs Ralph Kasambara, who was sentenced to 13 years imprisonment.
Kasambara, who died in June this year, was granted bail pending appeal by Justice of Appeal Dunstan Mwaungulu, now retired, in March 2018 after serving one year and seven months in prison.
However, Mwaungulu denied Kumwembe and Manondo bail, but ordered a speedy appeal hearing.
In a letter by both convicts, addressed to Justice Dingiswayo Madise, dated November 14 2024, which Weekend Nation has seen, the convicts said when Mwaungulu delivered judgement on Kasambara, he indicated that their sentences should run concurrently, not consecutively, as ruled by the High Court.
The letter reads, in part: “In the unlikely event of our conviction and based on Mwaungulu’s assertion, it implies that we could serve a maximum of 15 years. The Prison Act stipulates that, barring other indiscretions, convicts serve only two-thirds of their sentences, which could mean 10 years or 120 months.”
The convicts also argue that during their incarceration, President Lazarus Chakwera remitted 30 months of their sentences, adding that based on Justice Mwaungulu’s theory, they are expected to serve 90 months, meaning their sentence from July 2016 would end in December 2023.
“This shows that in the unlikely event of the Supreme Court sustaining our conviction but stipulating that the sentences run concurrently, we have already served our entire sentences,” reads the letter.
The letter also states that the demise of Kasambara has left them distraught and in limbo.
“The delay in issuing the judgement has created anxiety disorders, depression, hypertension, mental issues, and other health-related problems.
“It is hard for us to overcome the widely held the perception that all of us are bound to die before judgement can be meted out by the apex court,” it further reads.
The letter, also, cited the judgment of murder convict Misozi Chanthunya, arguing that the appeal court announced the judgement and released a written judgement later.
Kumwembe and Manondo also suggested that releasing an electronic judgement would also expedite their case.
Defence lawyer Michael Goba Chipeta was not available for comment, but in an interview after the adjournment of the appeal hearing, he reiterated that there was no evidence to prove the offences were committed.
He said: “If you read the judgement from the court below [the High Court, akuti [they say] it should never be referred to as the lower court, but the court below… You will see that it is all about inferences. The call log which they are dependent on does not really show that someone was at the place where the offence was committed.”
The registrar of the High Court of Malawi and Supreme Court Innocent Nebi said he needed check with the presiding judge to give an informed response later.
