The High Court has dismissed an application by former Ministry of Finance budget director Paul Mphwiyo and 16 other accused in the infamous Cashgate case for the court to remove presiding Judge Esmie Chombo and nullify the trial.
Delivering her ruling on the application yesterday in chamber at the High Court Lilongwe Registry, Chombo refused to recuse herself.
The 17, accused of defrauding K2.4 billion public funds in 2013, were earlier found with a case to answer.
In their application, the accused argued that the manner the High Court judge’s contract was extended after it expired was irregular and they may not have a fair trial before her. They also proposed that the case be nullified so that they walk to freedom.
But in her ruling yesterday, Chombo dismissed the allegation that she had no renewal on her mandate, refused to recuse herself from the case and stated that the case will continue.
Offering evidence in support of her suitability to continue hearing the case, the judge stated that the Judicial Service Commission (JSC) sat on August 24 2018 and among other things, directed that a recommendation to extend her period of service by 30 months after December 23, 2018, be made to the appointing authority, in accordance with Section 119 (1) of the Malawi Constitution.
Chief Justice Andrew Nyirenda, SC, as chairperson of the JSC, on October 19 2018 wrote the then President (Peter Mutharika) seeking Chombo’s extension of service which was approved on October 21 2018.
On May 21 2020 the Office of the Chief Secretary to the Government communicated another extension of tenure for 12 months with effect from June 15 2020 in line with Section 119 (1) of the Constitution.
In her determination yesterday, Chombo argued that the attempts by Mphwiyo were tantamount to reviewing the decisions of the JSC, the Chief Justice and the President, which she said the court will not tolerate.
She ruled: “Therefore, the application by the defence calling upon this court to review the actions/decisions/communications of the Judicial Service Commission, and/or the Honourable Chief Justice, and/or the Chief Secretary, and/or the Honourable Registrar which would of necessity precede any determination of the issue of nullification of proceedings, is declined.”
Earlier this month, the Judiciary, through Registrar of the High Court and Supreme Court of Appeal Gladys Gondwe, also opposed the 17 accused’s application through a sworn affidavit.
The Registrar argued against the accused’s claim that it was the Director of Public Prosecutions (DPP) who has the full conduct of the matter.
Mphwiyo’s lawyers could not be reached for reaction yesterday, but DPP Steven Kayuni expressed relief at the decision, saying the State was happy to see the case continue.
He said the State will now wait for communication of the court on new dates for trial which before the application was at defence stage.
The other accused in the case of embezzling the K2.4 billion, conspiracy to defraud government, holding property of government, theft and money laundering are David Bill Kandoje, Auzius Kazombo Mwale, Clemence Madzi, Roosevelt Ndovi, George N. Banda, Steve Likhuya Phiri, Michael Mphatso, Samuel Mzanda, Stanford Mpoola, Syphathy Chisale, Fatch Chiungano, Andrews Chilalika, Cecilia Ng’ambi and Ndaona Satema.
Mphwiyo was shot at the gate of his Area 43 residence in Lilongwe on September 13 2013 during the administration of Joyce Banda.
Former minister of Justice in the Joyce Banda administration, Ralph Kasambara, businessperson Pika Manondo, Dauka Manondo, Robert Kadzuwa and McDonald Kumwembe were convicted and jailed on Mphwiyo’s attempted murder.
Kasambara was, however, released on bail from prison after he applied and fought for it pending appeal in the Supreme Court of his conviction and sentence.