The Malawi Supreme Court of Appeal has reserved its ruling on an application by former Ministr y o f Finance budget director Paul Mphwiyo and 17 others who are seeking a permanent stay of
proceedings in their case.
The hearing of the appeal, which commenced yesterday before Justice of Appeal Lovemore Chikopa, follows High Court Judge Ruth Chinangwa’s decision to dismiss an application by the 18 accused persons for recommencement of the proceedings because the Judiciary assigned Chinangwa as a new judge to hear the matter.
The accused persons also sought a stay, pending judicial review, on an application made in relation to the extension of the tenure of former High Court Judge Esmie Chombo by the Judicial Service Commission.
But chinangwa dismissed their applications on September 7 2021 and ordered that trial should resume.
However, dissatisfied with the ruling, the accused persons applied to the Malawi Supreme Court of Appeal to stay the criminal proceedings pending the determination of the judicial review application.
According to a sworn statement signed by Mphwiyo, who is the first accused person, the 18 are dissatisfied with judge Chinangwa’s decision, arguing that the lower court erred in law in refusing to recommence trial.
The accused persons believed that the continuation of the trial by the new judge would be prejudicial to their right to a fair trial.
Reads the statement in part: “The lower court erred in law in refusing to recommence trial when the record does not have any record indicating the basis and justifications of Justice Chinangwa seizing jurisdiction over the matter being a Judge who was not initially hearing the matter.
“Wherefore, I humbly pray to this honourable court to grant me leave to appeal against an order refusing to recommence trial.”
But in a skeleton argument in response to application for staying proceedings, filed by senior assistant chief State Advocate Andrew Salamba on October 5 2021, the State asked the country’s highest court to dismiss application.
Among others, it argues that fair trial in the present matter demands the speedy conclusion of the case which has taken longer to be completed and that criminal proceedings should not be stayed as the applicants only want to delay the case which is close to completion.
The State also noted that the affidavit in the application was sworn by Mphwiyo only and argued that he cannot swear an affidavit on behalf of the other accused persons.
Reads the skeleton argument in part: “Mr. Paul Mphwiyo cannot be cross-examined on behalf of the other applicants and neither can he swear on their behalf.”
After both the State through Director of Public Prosecution (DPP) Steve Kayuni and the applicants’ lawyer Andy Kaonga presented their arguments, Justice of Appeal Chikopa reserved his ruling to a date which will be communicated later.
The 18 are accused of defrauding K2.4 billion public funds in 2013 and were found with a case to answer.
Mphwiyo was shot at the gate of his Area 43 residence in Lilongwe on September 13 2013 during the Joyce Banda administration