Mwaungulu hears recusal submissions
The Supreme Court of Appeal has reserved its ruling on an application by the State to have presiding Judge Dustan Mwaungulu out of a bail application for convicted former minister of Justice and Constitutional Affairs Ralph Kasambara and two others.
Mwaungulu, sitting as a single Supreme Court judge, yesterday heard the preliminary arguments from the State and the applicants before giving the parties up to next week Friday to submit “brief notes” on the case for his ruling.
Yesterday’s hearing followed an objection by Director of Public Prosecutions (DPP) Mary Kachale for the judge to recuse himself on the basis that his comments on a Malawi Law Society (MLS) Google group relating to the same case might compromise his objectivity.
The DPP argued that there was “reasonable apprehension of biasness” in the comments the judge made as such he should not sit in the case as he had already taken a position.
In her argument yesterday, Kachale said that by publicly commenting on aspects of the matter, the judge had breached the judicial code of conduct which does not allow judges to comment on cases that are pending or already in court.
She also said the State’s recusal application was not, in any way, a personal attack on the judge they “highly respect for your integrity”, but to ensure that impartiality is exercised in the case.
But, in their arguments in response, Modecai Msisha, one of the lawyers representing Kasambara, and Michael Goba Chipeta, lawyer for McDonald Kumwembe and Pika Manondo, argued that the judge’s comments did not amount to biasness in legal terms.
Said Msisha: “The comments could not be a basis of bias. Actually, it is a health discussion for the judicial officers on principle of law.”
In an interview later, Goba Chipeta said the State’s application was misconceived because the law, including the judicial code of conduct, allows the service of comments.
He said: “The judge was within the limits of the law and there was nothing prejudicial, nothing that could raise the issue of bias.
The judge was simply professionally commenting on principles of law; after all the Malawi Law Society Google group is a closed professional group that talks about issues of law, not personal issues.”
According to Supreme Court practice, should Mwaungulu dismiss the application to recuse himself, the State has the freedom to appeal the case before a panel of three judges of the Malawi Supreme Court of Appeal.
Kasambara, who was present in court and looked cheerful after the hearing, applied for bail alongside his co-convicts pending an appeal (which they have since filed) against their conviction.
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 in September 2013.
Kasambara was sentenced to 13 years imprisonment while Manondo and Kumwembe were given 15 years.
