High Court judge Michael Mtambo on Thursday threw out an application by former minister of Justice and Constitutional Affairs Raphael Kasambara to travel to South Africa for medical treatment, saying it lacked supporting documentation.
In filing the application, private practice lawyer Emmanuel Theu, representing Kasambara whose bail was revoked, had a lengthy argument with Director of Public Prosecutions (DPP) Mary Kachale.
Ruling on the matter, the judge said: “There is no documentation that Mwaiwathu [Private Hospital in Blantyre] have failed to treat Mr. Kasambara. As long as the third accused [Kasambara] is in custody, this trial will never finish.
“There was [the case of businessperson-cum-politician Osward] Lutepo and it was agreed that trial could proceed in his [Lutepo’s] absence. Please, ask your client if he would be in agreement. Secondly, we should meet on the 26th of November to continue this case.”
Theu told the court Kasambara has a heart problem that needed specialist treatment by a cardiologist in South Africa.
He said the medical report by Professor Jack Wirima, Mwaiwathu Private Hospital medical director, was not enough.
Theu, who said the court needed more information on his client’s condition before making a ruling, also asked the court if Wirima could avail himself to the court to be cross-examined on his report.
In his report, Wirima said Kasambara would be fit to stand trial after 10 days.
Reads in part the report tendered in court: “Mr. Kasambara will be fit to stand trial after 10 days. He will be discharged tomorrow and on the 13th November he will be treated as an outpatient.”
Kasambara’s brother, Charles, also swore an affidavit detailing the history of Raphael’s heart problem, how he was admitted, discharged and further re-admitted to hospital, cementing how important it is for the court to consider the application.
But Kachale wondered why the defence was questioning an expert opinion from Wirima. She also raised eyebrows as to how Charles, who is not a medical person, was giving an affidavit.
Said the DPP: “We are not against his brother making a statement, members of the family are allowed to express their wishes, but he [Charles] is not a medical practitioner. [Secondly], why is the defence not in agreement with the recommendations of the expert opinion? Is it only Kasambara’s doctor who can give a complete and comprehensive report?”
Further, Kachale asked the defence to choose a hospital of their choice, have their client examined and provide the report to court.
Kasambara, former Malawi Defence Force (MDF) soldier Macdonald Kumwembe and businessperson Pika Manondo were found with a case to answer in the near-fatal shooting of former Ministry of Finance budget director Paul Mphwiyo outside the gate of his Area 43 residence in Lilongwe on September 13 2013.
The trio is jointly charged on the charge of conspiracy to commit murder whereas Kumwembe and Pika Manondo are also charged with attempted murder.
Earlier on Thursday, the High Court revoked Kumwembe’s bail after finding him in contempt of court.
Kumwembe, who was recently released from prison after he was charged with contempt of court, was mum after presiding judge Michael Mtambo revoked his bail.
In his ruling, the judge said Kumwembe’s behaviour, where he obtained private information of the judge’s curriculum vitae and further revealed about the judges security detail, was enough for him to pass the sentence. n