Chief Justice Andrew Nyirenda has recused himself in a case where two murder suspects of the late Robert Chasowa, a fourth-year student at the University of Malawi’s The Polytechnic, are seeking certification of the matter to go for judicial review pursuant to Section 9 (2) of the Courts Act.
The suspects — Geoffrey Doff Bottoman and Peter PetrosTembo — through their lawyer AmbokireSalimu want the court to acquit them, arguing that the State has no evidence against them as demonstrated by the continued delays to put them on trial.
However, the Chief Justice said after reflecting on the matter, he decided to give way because of the peculiar situation he is in having chaired the Commission of Inquiry which led to the arrest of the two suspects.
Said Nyirenda in his ruling: “What has caused me to take a while is the peculiar and unusual situation I find myself on account of the background of the case. I needed to reflect on the matter much more earnestly than ordinarily.”
He said although both counsels for the applicants and the respondents were of the view that he could proceed to hear the matter, he felt not suited to preside over the present application having presided over the Commission of Inquiry.
Nyirenda observed that while he could be convinced that he would live up to his oath of office to administer justice without fear, favour and prejudice in accordance with the Constitution and the law, it was less than likely that fair minded and informed observers would conclude that he proceeded without a real possibility of bias.
In a ruling dated October 29 2015, Nyirenda said: “Even if I was as impartial as I could be, nevertheless if fair-minded persons would think, in the circumstances, there was real livelihood of bias, I should give way.
“On account of my proximity and involvement with the events leading to the case, assessed against the oath of office that we take as judges and in the desire to preserve public confidence in the independence, integrity and impartiality of our judicial system, it is overriding that my hands should be off this matter.”
However, the Chief Justice observed that his decision on the matter was serious cause for concern as it would result in the applicants’ case having no redress.
According to the Courts Act, for a referral to proceed, there shall be certification by the chief justice and does not designate any other person.
But the chief justice said while the power of certification is confined to him, out of necessity and in the overriding interest of the administration of justice, he would cede his authority over the proceedings to the “next most senior Justice of Appeal”.
Chasowa, who was studying engineering, was found dead near the dispensary and finance office at The Polytechnic campus on September 25 2011 under questionable circumstances.