LL High Court Rejects State Application To Revoke Bail For Mphwiyo Shooting Suspects

The state application to revoke bail of all suspects accused of attempted murder and conspire to commit murder of former budget director Mr. Paul Mphwiyo has been rejected by the court.

The Lilongwe High Court has on Monday evening rejected a state application made last month asking Justice Michael Mtambo to nullify bail of suspects following alleged interference with and threats to state witnesses.

However, Justice Mtambo said though there was an audio affidavit where two state witnesses claimed to have been threatened but observed that they lacked definitive identification of the one who was issuing such threats.

The Judge says, the court finds no evidence or probability of threat hence rejection of the state application 

Apparently this rejection will have an impact to the court determination of the judgement on Wednesday of whether to continue or discontinue the case considering that the state has for all along emphasising that its key state witnesses including Charles Chalunda were interfered with and threatened.

Justice Mtambo is expected to make a judgement on Wednesday whether the accused have case to answer or not.

Former Justice and Constitution Affairs Minister, Raphael Kasambara who is representing himself, Pika and his brother Dauka Manondo, McDonald Kumwembe, Oswald Lutepo and Robert Kadzuwa are the suspects in this case.

Mphwiyo Shooting Case: State Restore Bail Revocation Application For All Suspects…

• The application Was Withdrawn Following Chalunda’s Change of Testimony

• But the state says has reversed the decision to prove its previous claim that suspects in the case have been interfering with and intimidated witnesses

The State prosecuting the case of attempted murder and conspiracy to commit murder of former Budget Director Paul Mphwiyo has made a turn back to a decision that requests Lilongwe High Court to revoke bail for all suspects answering the case.

In March this year following alleged state witness interference and intimidation from some of the accused persons, the state applied for the revocation of bail for all suspects.

But on Thursday morning, the State had withdrawn application to revoke bail for all suspects when a “hostile witness” Charles Chilunda changed his testimony. He told Lilongwe High Court during examination in chief that his audio affidavit claiming threats from some of the defendants was recorded after being forced by the prosecutors to do so.

The audio affidavit was played in court this Thursday, but Chalunda maintained what he said on Wednesday that he has no knowledge of any of the suspects and continued that his affidavits were wrong and he is therefore not a right witness.

However, as the case resumed in the afternoon after an adjournment for lunch break, Director of Public Prosecution (DPP) Mary Kachale told the court that the state has decided to restore the application for the revocation of bail for all suspects. 

Kachale made a prayer to Judge Justice Michael Mtambo that the state application be restored due to the interest of public on the matter and state insistence that its witnesses were interfered with by the accused persons.

In an interview to highlight more on the reversal of the state decision, Mary Kachale said the decision made in the morning of the day was done in a hurried manner. “So we sat down and considered the legal implications of the withdrawal and we knew that it is in the public interest and it is also in the interest of the state that it should be on the record that state has reasonable evidence and has put it before the court that its witnesses were interfered with.”

“This is because had we withdrawn, what it would have meant is that the court would have taken that record completely off. It would have been as if we were saying that actually the state witnesses had not been interfered with. So we did that to demonstrate that the state still is of the position that its witnesses had been interfered with and it should be up to the court to determine” said Kachale

Mphwiyo Shooting Case: Chalunda's Changing Testimony Forces the State to Use Audio Affidavit On Thursday

• Chalunda has insisted not to make testimony to a case which charged him of perjury

• He denies the suspects he previously claimed had met him before Mphwiyo shooting

The State in the case of Attempted murder and Conspiracy to commit murder of Malawi’s former Budget Director Mr. Paul Mphwiyo has been left with no option but to use audio affidavit recorded from its key witness Charles Chalunda who has completely withdrawn his earlier written affidavits and any evidence told investigators.

State witness, Chalunda who was brought to Lilongwe High Court on Wednesday following a subpoena is denying every statement which was taken by police investigators into the shooting of Paul Mphwiyo saying he sees point to testify to a case which he was convicted and charged of perjury.

The crucial witnesses in the ongoing case of attempted murder of former Budget Director Paul Mphwiyo in September 13, 2013 has also denied any knowledge of five suspects being accused of plotting to kill Mphwiyo.

Chalunda is the man who previously confessed to the police investigators that he together with McDonald Kumwembe travelled from Blantyre to Lilongwe on robbery mission, but everything changed when the two, met Oswald Lutepo at Bwandilo market in area 47 in Lilongwe who instructed them to shoot to kill a man named Paul Mphwiyo.

His affidavit taken that time, also indicates that after they were shown a picture of Mphwiyo, and later taken to see his house in Area 43 as well as places he frequents, they failed to execute the mission as one day were spotted by a lead investigator, Kankhwala Chilinda sharing K1 million part of their payment. 

After pulling out from the mission, Chalunda therein also said, few weeks later heard that Paul Mphwiyo had been shot.

However, Charles Chalunda withdrawn the affidavit saying he lied under oath. He also changed that the man who he met at Bwandilo was not Lutepo but Pika Manondo. This led to his conviction and subsequently charged with perjury by court in Zomba.

On Wednesday evening, Chalunda who looked so angry as he stood in the dock, had at the very beginning refused to take plea and said, could not continue making testimony to a case which has already ended him being charged with perjury. He even expressed wonder why the state had taken him from Blantyre to Lilongwe by an army of police officers.

It took several minutes including a 10 minute suspension of the court proceedings and other interventions to make him calm and accept to take an oath which he did after.

Though he took oath, Chalunda denied everything that Director of Public Prosecution (DPP) Mary Kachale asked him of his knowledge of prior plans and persons in the shooting of Mphwiyo as earlier stated in his affidavit.

Chalunda’s apparent unfriendly mood and responses during cross examination in chief prompted Kachale to make a request to Justice Michael Mtambo to declare the witness as ‘Hostile Witness’. Though the witness answered some questions but insisted that though he signed for two affidavits having different statement but whatever he said was a lie.

The DPP has therefore sought other means of presenting his testimony. This Thursday morning the state is bringing to court an audio affidavit which Chalunda had explained all what had happened pertaining to the shooting of Paul Mphwiyo and intimidation being made by some of the defendants.

Chalunda is one of the state witnesses who also raised an alarm to the investigators claiming that his life is at stake as some of the accused persons are issuing intimidation and had asked for police protection and be transferred to a safe place elsewhere in Mangochi district. 

His claim led the state to make a request though not successful but was asking Justice Michael Mtambo to revoke bail for all five accused persons. Such fears also prompted government to deploy more than 10 armed police officers at the High Court premises every time the case is convened for witness protection.

Prosecution Applies for Revocation of Bail to Suspects in Mphwiyo’s Attempted Murder

Suspects are interfering with and intimidating state witnesses -the State claims

The Prosecution in the case of attempted murder of former Budget Director Paul Mphwiyo has applied before presiding Judge Justice Michael Mtambo, a revocation of bail to all the accused involved in the case following claims of “interference and intimidation” to state witnesses.

On Wednesday, Director of Public Prosecution (DPP) Mary Kachale told Lilongwe High Court that state wishes annulment of the bail granted to all accused persons in this case because they have “interfered with and intimidated” state witnesses. 

In the case, Raphael Kasambara, Pika and his brother Dauka Manondo, McDonald Kumwembe, Oswald Lutepo and Robert Kadzuwa are answering charges of Attempted murder and Conspiracy to commit murder of Former Budget Director Paul Mphwiyo who survived from three gunshots in September 13, 2013. 

Kachale indicated that the state has audio recordings of its two witnesses including Charles Chalunda claiming that their lives are at stake because some of the defendants are issuing various forms of threats.

“My Lord, there is an affidavit which is showing that some of our witnesses are fearful of their lives”, she continued and further said “Mr. Chalunda had called police for protection and he asked the state to have him transferred to a safe pace elsewhere in Mangochi district”

Kachale tried hard to convince court that the state plea be sustained due to seriousness of the matter and taking into consideration that Malawi has no Witness Protection Programme. 

Since the state made the application without serving the court and the defense with documents of such application, led to objection from the defense, they asked for the files before making their submissions on Thursday. Judge Mtambo has ruled that the ruling on the matter will be made during another court session since the three day session this week is dedicated for the parading of the remaining state witnesses.

The invalidation of the bail for the defendants will lead to arrest of all the five suspects currently on bail.

One of the accused who is presenting himself, Raphael Kasambara expressed displeasure with the expression used by the state to refer the accused persons in this case as persons carrying out ‘clandestine mafia’

On Wednesday, the state paraded one of its remaining witnesses. A Dedza boarder officer, Griffin Tembo was making testimony on issues surrounding travel of McDonald Kumwembe to Mozambique during the period of Paul Mphwiyo’s shooting, his witness was to clear whether Kumwembe claim that he was not in Malawi at the time of Mphwiyo’s shooting is valid or not.