Presiding High Court judge Esme Chombo yesterday adjourned earlier than scheduled hearing of the K2.4 billion Cashgate case following a misunderstanding between the State and defence legal teams over missing documents.
It all started soon after State witness Leonard Kalonga, himself a Cashgate convict on his own plea of guilty but awaiting sentencing, wound up his testimony. The defence team informed the court that they could not competently cross-examine Kalonga in the absence of some documents relating to the matter.
Shadreck Mhango, lawyer representing the first accused and former Ministry of Finance budget director Paul Mphwiyo, asked Director of Public Prosecutions (DPP) Mary Kachale to serve him with three documents relating to his client’s case.
The documents in question are Treasury Funding Authority Books for the period July to September 2013, Integrated Financial Management Information System (Ifmis) Uploading Records for the same period and minutes of reconciliation meeting between the Reserve Bank of Malawi (RBM) and government team, including Mphwiyo.
Mphwiyo’s lawyer argued that Kalonga, a former assistant director in the then Ministry of Tourism and Culture, had made “a lot of serious allegations against the first accused”, which he could not ably tackle in his cross-examination without the documents.
Chipping in, Ian Malera, lawyer representing former Accountant General (AG) David Kandoje, said “justice hurried is justice buried”.
But Kachale hit back, accusing the defence of seeking to derail the course of justice in the matter.
She brought to the attention of the court that the defence team failed to make such requests when the State had asked them for the same prior to the commencement of the case.
Said Kachale: “The court had already ruled against those requests. The request is being made in bad faith because counsel did not come back after being asked to make the requests for missing documents.”
But Malera maintained that the said documents were critical to ensuring a fair trial and that it is also in the interest of justice.
However, Kachale reminded the defence team that “interest of justice should be balanced between the accused and the victim of the crime committed”.
She urged the defence lawyers to also appreciate that Malawians, whom she branded as victims of Cashgate—the plunder of resources at Capital Hill through dubious payments exposed in September 2013—want to see justice being done without unnecessary delays.
But Malera stood his ground, pleading with Chombo to order the State to produce them.
At this point, Chombo ruled that the defence lawyers should write the State requesting for any document relevant to the case. She also advised them to ask for “revised court order” from the State so that “both the State and defence are moving together” when the matter reconvenes.
In the case, Mphwiyo and 17 others are charged with conspiracy to defraud government, holding property belonging to government, theft, money laundering, fraudulently issuing 24 cheques worth K2.4 billion, abuse of public office and usage of proceeds of crime. n