Mphwiyo Shooting Case: Am Impartial Justice Mtambo Tell Kasambara

Justice Michael Mtambo has explained reasons why he refused to grant Raphael Kasambara an application that the judge hearing the case of attempted murder and conspiracy to commit murder of former budget director Paul Mphwiyo, recuse himself from hearing the case.

Kasambara found with case to answer and self represented lawyer in the case made an application that judge Justice Michael Mtambo should recuse himself from hearing the case.

He cited that Mtambo in his ruling on case to answer or no case to answer had brought issues that were not testified by the witnesses. He added that the judgment which saw three others being acquitted from the case had predetermined issues that would make the judge use in his final judgment and the judge seem to be siding with the prosecution.

However, justice Mtambo said, he remains professional and that he cannot take side. Mtambo also mentioned that his judgment of case to answer or no case to answer Kasambara was favored as the judge dropped him from the case of attempted murder. 

The case has been adjourned to 24th July 2015 following defense application that the court produce court records of the witnesses to enable them ably prepare for the defense.

On House Keeping, the court also agreed that the same date the defense shall tell the court if the accused are going to testify or remain silent. If they are going to testify the defense shall also be expected to inform the court if they are going to testify alone or are calling witnesses (This is in the view of the law which requires that it is not automatic that the person accused in the crime would testify in defense (right to remain silence))

Raphael Kasambara is one of the suspects in the case together with McDonal Kumwembe and Pika Manondo answering attempted murder of Paul Mphwiyo. Three others; Dauka Manondo, Robert Kadzuwa and Oswald Lutepo were acquitted after being found with no case to answer.

Mphwiyo Shooting: Kasambara, Pika, Kumwembe Have Case to Answer

Dauka (middle) Kadzuwa (left)
freed from Mphwiyo shooting case 

Lilongwe High Court finds three suspects with case to answer in the attempted murder and and conspiracy to commit murder of former budget director Paul Mphwiyo in the night of September 13th 2013 at the gate of his home in area 43.

Former Justice Minister and Constitution Affairs, Raphael Kasambara, Pika Manondo and McDonald Kumwembe have been found with a case to answer. While Dauka Manondo, Robert Kadzuwa and Oswald Lutepo  have been acquitted as the court finds no substantive evidence against them to be connected to the shooting.

Meanwhile Judge Justice Michael Mtambo has adjourned the case to 22 May 2015 where the court will enter the defense. 

Reacting to the three acquittals, Director of Public Prosecution Mary Kachale says the state respects the decision of the court. 

Why some suspects have case to answer and not others?

Raphael Kasambara will enter defense on the charge of Conspiracy to commit murder while Pika Manondo and McDonald Kumwembe are expected to enter defense with two counts of Attempted murder and Conspiracy to commit murder of Malawi's former Budget Director Paul Mphwiyo.

Kasambara has been acquitted in attempted murder charge because there was no evidence to justify the alleged threats the victim (Mr. Paul Mphwiyo) had claimed and that Kasambara was not identified among the assailants who were at the victims gate during the shooting. 

However, Kasambara has a case to answer on conspiracy to commit  murder following Airtel call logs which indicates that he was in a constant contact with the other suspects prior to and the night when Paul Mphwiyo was shot.

Justice Michael Mtambo said the court also agrees with state that Pika Manondo has case to answer for the "unusual" kind of communication he had with Kasambara night of Paul Mphwiyo shooting which one would suspect that they were executing a certain plan. The court added that Pika was identified by the victim as one of the suspects and that  he fled out of the country immediately Paul Mphwiyo was shot and was arrested a month later.

McDonald Kumwembe has a case to answer says the court following Airtel call logs which trace him moving from Bvumbwe to Lilongwe while in constant contacts with the other suspects. Not only that but also, his phone number registered that he was in Area 43, a location where the shooting took place and within hours the shooting took place.

Court further finds no evidence that Kumwembe had travelled to Mozambique the period of Mphwoyo shooting since Kumwembe was also found with a bus ticket indicating that he travelled from Blantyre to Lilongwe a day before Mphwiyo's shooting. 

On airtel call logs and the ownership of the phone numbers, Justice Mtambo said the court finds that the call logs were credible since "none of the accused" had  asked Airtel experts even a single question of ownership of the phone numbers or disowning them.

Justice Mtambo also ruled against defense submission particularly made by Raphael Kasambara and John Mwakhwawa that there is possibility that the phones of the accused were with their spouses including the submission made by Kasambara that his phones could have been with his personal assistant because he would let them use his phones.

"Cellphones are meant for  personal holders and are not given to spouses to communicate even with husbands friends during old hours" said Mtambo who added that "It is not possible to let your personal assistant use your phone, communicating with your friends even up to old hours."

Robert Kadzuwa has been acquitted because there is no evidence against him apart from the claim by the state that he was found with millions of Kwacha's while with Kumwembe, the money which the state suspects to have been a payment after shooting and the two were about to share. 

The judge said there is no evidence that the money found with Kadzuwa was his payment after the shooting.

Similarity the court finds no evidence that Dauka Manondo was involved in the shooting and conspiracy to commit murder of Paul Mphwiyo.

Oswald Mtupila Lawyer for Oswald Lutepo 

Oswald Lutepo has also been acquitted following acknowledgement by the state that his name made it to the suspects list when the state witness mistakenly named him for Pika Manondo.

Meanwhile the lawyer for Lutepo, Oswald Mtupila who looked so happy, says he would wait for Lutepo for a go ahead on appeal for compensation for the costs incurred having being dragged into the case.

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 Has No Evidence Says Defense

Case To Answer Or Not Set This Wednesday 

The Lilongwe High Court has reserved a ruling to Wednesday this week on whether the accused persons in the attempted murder and conspiracy to commit murder of Malawi's former Budget Director, Paul Mphwiyo are guilty or not guilty.

Justice Michael Mtambo is expected this Wednesday to make his determination of whether to continue or discontinue with the having finished listened to oral submissions by both parties on Monday.

Meanwhile the judge is also expected to rule whether Oswald Lutepo should be acquitted in the case following acknowledgement by state that Lutepo was a mistaken identity by the witness who implicated him.

State and Defense were since Monday morning till afternoon making oral submission following written submissions made on 21st of April 2015 and that Justice Mtambo was expected to make a ruling following day on Tuesday however, this has not been possible because submissions ended very late in the day.

The defense, in its submission argued that the state has failed to provide substantive evidence to demonstrate beyond reasonable doubt that the accused had conspired and attempted to kill Paul Mphwiyo who happened to be their friend.

Defense lawyers, John Gift Mwakhwawa, Wapona Kita and self represented lawyer Raphael Kasambara have submitted that the case is a script written by Paul Mphwiyo as it has demonstrated that the lead investigator in this case Kankhwala Chilinda had failed to provide evidence that he had investigations following testimony of Paul Mphwiyo and other witnesses.

The defense further accused Chilinda for lying to court in many occasions and that the state throughout the case has been inconsistent including its witnesses.

The defense also attacked Airtel call logs indicating suspects communication web even the night when Paul Mphwiyo was shot, saying the investigator or the state had not at any point indicated or brought any witness to prove that the phone numbers found in the call logs belongs to any of the suspects.

The defense also pointed out lack of bringing material evidence especially a note which is said to have been written down by Paul Mphwiyo to his aunt bearing names of those that shot him. 

But in its submission, the state has maintained that it has never been inconsistent but some inconsistencies came in due to accused persons interference with state witnesses and threats.

The state further submitted that it brought enough evidence that reveals how the suspects were communicating prior and during the time Paul Mphwiyo was shot. Adding that Paul Mphwiyo who survived the attack on 13th September 2013, was a living testimony to tell who shot him.

The suspects in the case of attempted murder and conspiracy to commit murder of Paul Mphwiyo are; Dauka and his brother Pika Manondo, McDonald Kumwembe, Robert Kadzuwa, Raphael Kasambara and Oswald Lutepo

Mphwiyo Shooting Case; Defense Critic Airtel Call Logs

The defense team in the ongoing attempted murder and conspiracy to commit murder of Malawi's former Budget Director Paul Mphwiyo have on Friday tried to explore loopholes  in the call logs brought by the three telecommunication savvy from Airtel Malawi. 

Starting on Thursday, three Airtel experts were analysing call logs made by suspects prior and after the shooting of Paul Mphwiyo in September 13, 2013 as he was trying to enter the gate of his house in Area 43.

Though, accused and self represented lawyer Raphael Kasambara had no question to ask Airtel experts, other three lawyers tried hard find out the validity of these call logs.

Oswald Lutepo's lawyer, Oswald Mtupila asked of possibility of editing the the call logs in the system. One of the expert said it is impossible to edit call records in the system but editing can be done once one gets the information from the system and tries to edit the document outside the system, but maintained that the system information remains intact.

John Gift Mwakhwawa representing McDonald Kumwembe asked in relation to the information which Kumwembe claimed of being outside the country at the time when the shooting took place. Kumwembe said he was in Mozambique and used Dedza boarder when going out and coming in of the country.

Mkwakhwawa asked if the  mobile telecommunication provider, Airtel could trace Kumwembe if in Mozambique had used a number which is not of Airtel network  and received a "no" reply. He then asked if it was possible for the mobile operator could trace network location of Kumwembe in Mozambique if her wife had called him using husband mobile phone number while at Dedza waiting to welcome him. But the Airtel experts said it was impossible to locate Kumbwembe.

Mwakhwawa questions came following the revelations that Kumwembe according to call logs, was in Malawi even the night Paul Mphwiyo was shot. Last month an immigration officer from Dedza boarder, Griffin Tembo also brought in the court a testimony that Kumwembe passport documents were not clear if he ever crossed the boarder as some very important details were missing in his travel documents.

However, Wapona Kita representing Pika and his brother Dauka Manondo and Robert Kadzuwa asked had asked several questions including possibility if the network towers can overlap. And the experts acknowledged that such, happens some times.

Later an affidavit from the Ballistic expert, Senior Superintendent S. B. Msambira was tendered in court. He brought three 9 millimetre empty cartridges found on the Mphwiyo shooting scene and there was a pistol in the plastic bag.

Wapona Kita Says His Clients Were "Inhumanly Degraded" BKita says Mphwiyo Suspects Being "Inhumanly Degraded" For Being Walked From Police to Court

• Dauka Manondo and Robert Kadzuwa were walked in handcuffs almost 300 metres from police to court 

• They feel they have been inhuman degraded

Dauka Manondo and Robert Kadzuwa in handcuffs

Meeting a police officer walking a handcuffed suspect to court is not strange among Malawians, but in a surprising way, lawyer, Wapona Kita representing Dauka Manondo and Robert Kadzuwa answering the case of attempted murder and conspiracy to commit murder of former budget director Paul Mphwiyo, has described an approximately 300 metre walk to court which police had on Wednesday with his two clients currently under police custody as "inhumanly degraded" act by law enforcers.

The lawyer complained before Justice Michael Mtambo who is presiding Mphwiyo shooting case that his clients, Dauka Manondo and Robert Kadzuwa currently in police custody have been "Inhumanly degraded" for being walked from Area 3 Police Station to the High Court which is approximately 300 metre distance.

"My Lord, the two accused persons currently under police custody have been walked from Area 3 Police Station up to here. And the accused therefore feel have been inhumanly degraded by being walked such a distance while in handcuffs. Police have vehicles and were supposed to use them to transport the suspects." He said

In earlier response on the matter by Director of Public Prosecution (DPP) Mary Kachale said this emanated from transportation problem with police.

But after some discussions, the court reached to the compromise that there is no problem to walk Manondo and Kadzuwa from Area 3 Police station as the distance is short but police should make sure that the suspects are taken to court in good time.

Later when the court resumed sitting after a short suspension another problem was raised by the two suspects, Dauka Manondo and Robert Kadzuwa for being brought in the court almost 30 minutes after the court began proceedings yet this time were being kept temporarily  at a suspects waiting shelter just few blocks away from the High Court. 

Seem concerned with the complaint, Justice Mtambo asked DPP to make explanation of the reasons why the two suspects missed part of the court proceedings yet were just few blocks away from the court.  

DPP's explanation was that police at the waiting shelter had man power problem whereby very few police officers were tasked to monitor suspects kept at the shelter and those responsible for taking suspects to courts were not available. 

But Kachale further committed to speak with police officer in charge to make sure that there should be personnel's responsible for taking suspects answering their charges at high court and others responsible for taking suspects answering charges in magistrate court in order to minimise issues similar to what has happened to Dauka Manondo and Robert Kadzuwa.

Kasambara Accuses State, DPP Office over Re-arrests of Some Accused Persons in Mphwiyo Shooting Case

Dauka Manondo& Robert Kadzuwa in handcuffs

Raphael Kasambara, one of the accused person in the case of Attempted murder of Malawi's former Budget Director, has accused government of making deliberate re-arrest of some of the accused persons.

Dauka Manondo one of the accused persons in the case of attempted murder and conspiracy to commit murder of Mr. Paul Mphwiyo was re-arrested few weeks ago on suspicion of wanting to kill witnesses and prosecutors and the state had also previously applied for the re-arrest of five accused persons currently on bail following state witness claims that they are being threatened by defendants.

But on Tuesday, a self represented lawyer Raphael in the case, Raphael Kasambara was prompted to express his anger when Judge presiding the case Justice Michael Mtambo had asked of whereabout of Dauka Manondo as he was not present in the dock.

Kasambara reacted by saying government is making deliberate re-arrests to some of the accused persons so that the public should have a negative view of the accused persons in this case.

He further called on state and office of Director of Public Prosecution (DPP) to stop such a gimmick game.

However, in reacting to Raphael Kasambara comment, DPP Mary Kachale said, police is making arrests of some of the accused following  independent police investigations and not from the influence of state or DPP office.

In related development as the court convined in the afternoon Kasambara had also accused state of not respecting the rights of two accused persons currently in police custody, Dauka Monondo and Robert Kadzuwa for not removing their handcuff up to the cour dock.

The two had their handcuffs removed when Kasambara had raised the matter before Justice Michael Mtambo. However the state denied of making any instruction to police of not removing the handcuffs of the two accused persons.

In the ongoing 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.

Since Tuesday morning the Lilongwe High Court continued hearing the cross examination of one of the state investigator  Superintendent Kankhwala Chilinda

Lawyer Wapona Kita was so inquisitive on issues sorounding authenticity of call logs that the  state brought in the court and his capacity to thoroughly investigate the issue surrounding Mphwiyo's shooting.

Lilongwe High Court Revokes Bail for Robert Kadzuwa, A Suspect In Mpwhwiyo Shooting

Prosecution Complained of Kadzuwa's Abscondment of Court Sessions   

High Court in Lilongwe has revoked a bail for Robert Kadzuwa one of the accused persons in the case of attempted murder of Malawi's former Budget Director Paul Mphwiyo for failure to appear in court proceedings for over three days.

The effect will lead to arrest of Kadzuwa who was not present at the court this Wednesday.

On Wednesday, when the High Court began three day sessions, a continuation of state witness parade in the case of the attempted murder of Mphwiyo following a month recess, Director of Public Prosecution (DPP) Mary Kachali made an application that Robert Kadzuwa's bail be revoked because he has stopped attending court proceedings since last month session.

Kadzuwa has been missing previous court session after an excuse that he wanted to attend funeral of his family member and failed to appear on Wednesday court proceedings.

Judge Michael Mtambo sustained the prosecution application which its effect will lead to arrest of Kadzuwa.

Robert Kadzuwa is being accused of attempted murder and conspiracy to commit murder of Paul Mphwiyo. He is being accused together with Raphael Kasambara, Pika and his brother Dauka Manondo, Oswald Lutepo and McDonald Kumwembe.