High Court Judge, Kenyatta Nyirenda, has ruled that the case in which two people are answering murder charges over the death of Polytechnic student, Robert Chasowa, should proceed to the Constitution Court without the certification of the Chief Justice.
The accused are Geoffrey Bottoman and Peter Tembo.
In a ruling delivered on March 2016, Justice Nyirenda questioned the rule that stops the case from going to the constitution court without Chief Justice’s certification.
“Section 9 of the Courts Act and the certification rules are in many aspects difficult to read together such that they have given rise to great difficulty in handling applications made there under.
“The all important question to consider is whether the jurisdiction of a properly constituted panel of not less than three judges under section (2) of the Act cannot be invoked in any circumstances unless and until there is a certification by the Chief Justice under section 9(3) of the Act,” said Nyirenda in his ruling.
Lawyer for the suspects, Ambokile Salimu, applied for a constitutional review with an argument that delays by the State to prosecute his clients are unconstitutional as section 42 (2) (f) of the Constitution propagates for a fair trial which includes trial within a reasonable time.
However, section 302A of the Criminal Procedure and Evidence Code stipulates that suspects who are answering charges whose punishment is more than three years are not entitled to discharge even if the State fails to prosecute them. In Malawi, murder attracts a death penalty.
In November last year, the Chief Justice Andrew Nyirenda voluntarily recused himself from certifying a constitutional review on the application in which the two suspects applied for their discharge.
The Chief Justice, who chaired the Chasowa murder’s commission of inquiry, said he could not preside over the certification of the application considering his proximity and involvement with the events leading to the case.
But Nyirenda’s ruling states that there is no requirement in the Act that a case expressly or substantially relating to, or concerning, the interpretation or application of the Constitution cannot be heard by the panel unless there is a certification by the Chief Justice.
“It seems to me that it is very easy to imagine cases where there can be no doubt that such cases fall within section 9(2) of the Act. In such cases, the need for certification under section 9(3) does not arise,” reads the ruling in part.
According to the Judge, until the confusion is remedied by Parliament or its delegate, the court will have to do its best to sense the provisions that were, in truth, poorly crafted.
“In the short term, it is hoped that the Supreme Court of Appeal may have an early opportunity of giving guidance on how section 9 of the Act (the Courts Act) and the certification rules can be properly applied,” he said.
According to Salimu, if nothing happens his clients, who are on court bail, can still remain suspects for twenty years and suffer discrimination when the State is failing to prove its case.
Commenting on the ruling, Salimu said the ruling deals with a decision that has been commonly held at the bar, and has given him a direction to apply directly to the Supreme Court through the Judge who is second to the Chief Justice.
“I should mention here that we can’t sit here and be talking about a matter that is in court. I’m not dealing with the substantive case of whether my clients are guilty or not. Rather I want them discharged because the State is failing to prosecute them since their arrest in 2012,” he said.
The body of Robert Chasowa, who was then a third year engineering student, was found at the Polytechnic campus in the morning of September 24, 2011.
The Police issued a statement alleging that he had committed suicide by jumping from a four-storey building but a commission of inquiry found that he was murdered.
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