Enlightened Christian Gathering (ECG) leader Shepherd Bushiri and his wife Mary want the new presiding magistrate in their extradition case to recuse himself over fears of alleged bias.
Government wants to extradite the Bushiris to South Africa following a request from the South African Government to prosecute the two for various criminal offences.
The couple fled South Africa last year while on bail, claiming their lives were in danger, and yesterday, the extradition hearing was scheduled to start in earnest.
Earlier, the High Court was supposed to hold a separate interparty hearing in a case in which the Bushiris obtained an injunction restraining the Malawi Police Service from arresting them, but the case could not start as their lawyers immediately sought an adjournment, saying the State had filed late documents related to the case.
Justice Kenyatta Nyirenda granted the request in a decision made in the chamber.
Scores of supporters, who were joined by young vendors, welcomed the Bushiris at the High Court commercial division offices with placards carrying solidarity messages. They marched ahead of the couple’s convoy as he went to the court.
Soon after the hearing started, chief resident magistrate Patrick Chirwa announced he was taking over the case from magistrate Viva Nyimba who is reportedly sick.
But as Director of Public Prosecutions (DPP) Steven Kayuni laid his case for the extradition, outlining the request that South Africa sent through diplomatic channels, lawyer for the Bushiris, Wapona Kita rose to raise an objection.
Kita said the defence was surprised by the change of the magistrates and opposed the presence of Chirwa whom the lawyer said issued a warrant of arrest for the Bushiris whose circumstances they question.
He said: “We want to pray for an adjournment to make a formal application for your recusal. This morning, the High Court has granted us an order to furnish us with documents, including a warrant of arrest and the application for the warrant of arrest. We have information that the warrant of arrest was granted by your court in circumstances which are being challenged.
“If we had known earlier that it was you who would hear the case, we could have made the application in advance. So, we seek an adjournment to make a formal application and we shall include the documents the State has been asked to submit. Fourteen days will be enough for us to carry out the application.”
Kayuni was not amused by the request, which he described as based on “mere premonition”.
“It’s an argument with no legs to stand on. Speculation which must not be allowed to stand,” said the DPP.
However, Chirwa ruled in favour of the Bushiris on their request to make a formal application for the magistrate’s recusal, but rejected the 14-day timeframe, instead ordering them to submit the application within two days while the State is to submit its formal response within four days.
The case was adjourned to next Monday.