Lawyer representing Cashgate suspect Auzius Kazombo-Mwale, Powell Mkhutabasa, and Director of Public Prosecutions (DPP) Mary Kachale spent the better part of Tuesday afternoon arguing on whether the court should proceed hearing the case in the absence of the accused.
Kazombo-Mwale on Monday collapsed in the High Court sitting at Lilongwe City Council offices, prompting judge Esme Chombo to grant him leave of the court for medical attention.
He was, however, present during the first two hours of the hearing on Tuesday when the sixth prosecution witness, Phillip Thoko Majiga, presented his evidence [in court].
At around 11am as Majiga submitted his evidence, Mkhutabasa stood up to ask Chombo to let his client go-take diabetes’ medication outside the chamber, a prayer the judge granted.
In the afternoon, when the State had barely wound up examination of Majiga and the judge passing it over to Titus Mvalo – lawyer for the first accused, Paul Mphwiyo –for cross-examination, Mkhutabasa rose again to address the court.
“The issue I want to address the court on pertains to the health of my client, whom we have all seen collapsing in court and even lying on the floor outside the court today because his blood pressure shot very high and he also had problems with his sugar levels,” he explained.
He said he appreciated the fact that the judge had already determined that the third accused may be excused and take as much time as he needs to recuperate and recover; and, that therefore his presence in court can be excused until such a time that his health has improved and is able to sit in court and follow the proceedings.
“[But] you may wish to know, my lady, that on the 12th of February 2017, we wrote the State and copied the court requesting that his passport should be released to him to allow him to travel to India where around that time he was scheduled to consult, see and access medical attention and help.
“You may also wish to note that on 19th April 2017, the State responded to that letter and, in short, stated that his health was to be reviewed first by Kamuzu Central Hospital personnel before he can be allowed to travel [to India]. And they further responded that the release of the passport would constitute a waiver of his bail conditions. And as such, the State was unable to release the passport,” he submitted.
Mkhutabasa pointed out that as a result of the circumstances he had highlighted, his client would be absent and therefore not following the proceedings, which would expose him to miscarriage of justice.
“We were informed that we may need to make an application in court. That withstanding, we are not blaming the State. The accused didn’t travel to India and his health has deteriorated as exhibited in this very court through circumstances that I have just highlighted.
“The accused person and I have a relationship of lawyer and client. And we share extensive notes. And his absence has taken away that privilege on my part. It should be noted that it is my client who is facing trial, not myself. And that if he has to be represented and defended, he needs sufficient and adequate representation,” he stressed.
At this point, he sought the direction of the court whether the hearing would proceed considering the prevailing circumstances.
But Chombo asked whether the counsel had made an application in relation to that to which Mkhutabasa responded negatively.
Kachale said as much as all the lawyers, on behalf of the State, were saddened by the turn of events in the health of the third accused, they would not support calls for the adjournment of the cases.
She contended that the defence lawyer was to blame for failing to follow necessary procedures to move the court to waive bail conditions of his client.