Malawi MP accused of triple murder

By Raphael Tenthany - BBC.co.uk

May 7, 2002

An opposition member of Malawi's parliament, who had gone into hiding after the killing of his driver in March, has been found and charged with murder.

Police have been questioning Nasser Walli Kara, the Malawi Congress Party MP for the central district of Dowa, following his arrest last week.

He has confessed not only to killing the driver but also his wife and one of her friends, according to police.

Mr Kara has been charged with three counts of murder.

Police say that in a written confession, Mr Kara said he killed his wife, Liwoli, and her girlfriend Chimwemwe Kanfose - both 25 - for stealing money from his business.

He reportedly said he dumped the two women's bodies in a crocodile-infested river after bundling them in a sack.

Hush money

Police spokesman George Chikowi said the confession was not made under duress, but volunteered after Mr Kara was confronted with the evidence.

Police say his two bodyguards, who allegedly participated in the murder of the driver, had already confessed.

Mr Kara is said to have killed his driver because he knew too much.

Mr Chikowi said that after murdering the two women Mr Kara gave the driver a house in the capital, Lilongwe, and doubled his salary to $53 a month to shut him up.

But the driver then tried to blackmail him, according to the confession cited by police.

The driver reportedly said that while driving he would start hallucinating that he was seeing Mrs Kara face and needed more money to exorcise the ghosts.

Poisoned

Mr Kara said his bodyguards advised him to get rid of the driver, who was poisoned and beaten to death in March.

His body was dumped in a swamp. The MP went into hiding when fishermen found it, leading to the arrest of his bodyguards.

Mr Kara was arrested last Thursday, when a police patrol spotted him hitch-hiking in Blantyre.

But the police spokesman said the investigation into Mr Kara was not over.

"We would like him to help us locate the remains of the two women," he said.

Presumed innocent

The case of Mr Kara, a youthful politician and businessman of some repute, has shocked Malawians.

Women's rights activists and social commentators are calling for a review of the qualifications of people standing for high office.

Edge Kanyongolo, dean of law at the University of Malawi, said it was astounding that Malawi could have a potential serial killer in parliament without anyone noticing.

The parliamentary speaker, Sam Mpasu, said Mr Kara was still an MP until convicted.

But he added pointedly that MPs could lose their seats if they miss three consecutive sessions without a written notice to the speaker's office.

  

IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CRIMINAL CASE NO. 94 OF 2002

THE REPUBLIC
Vs.
NASSER ISMAIL WALLI KARA AND TWO OTHERS

CORAM: HON. JUSTICE KUMANGE

Counsel for the State : F. Assani/P. Kayira

Counsel for the Accused : R. Kasambara/ Msowoya

Court Interpreter : L.N. Msiska

Court Reporters : Z. Mthunzi/I. Namagonya

R U L I N G

The three accused persons, namely Hon. Nasser Ismail Wali Kara M.P presently aged 32 years, Philip Singo aged 38 and Charles Kulemeka aged 23 years, stand charged in this court, stationed here at Nkhotakota High Court Assizes with the offence of murder, contrary to section 209 of the Penal Code. The three are jointly suspected of having caused the death of a man by the name of Alexander Kankhwani Mbewe.

Before any steps were taken for the commencement of the trial, the Defence raised two preliminary objections. These objections, carefully examined presented the court with critical issues that naturally call for critical and serious consideration of the law stemming from various angles of the law, namely common law, statute law and local precedent in general. While I do appreciate that common law has formed the basis for statute law, but modern emergency of constitutionality has provoked procedure relating to the trial of offenders in a joint capacity.

The first observation Mr Kasambara points out is that of joinder of offenders. It is his observation and his prayer to this court, that the three accused persons ought not to have been charged jointly in one charge sheet. He bases this observation on the likelihood of causing prejudice to the accused persons. He primarily targets this argument on the fact that his client, who is the first accused person, is likely going to be prejudiced if he is tried jointly with the second and the third accused persons. All the three accused persons, in their statements made to police, have a show of a confession, and an admission that they indeed killed the deceased Alexander Mbewe.

Counsel is alarmed by this confession, and would wish to see a severance of “charges” in order to render fair justice to the 1st accused person. Why, one would ask, because the prosecution has founded the charge against the 1st accused person on the basis of the confession statements made by the 2nd and 3rd accused persons. He has capitalized on the use of the word “Thoroughly interviews” thereby forming the impression that the 1st accused person was charged because of the 2nd and third accused persons’ confession. Since the first accused person had formerly denied the offence, after subjecting him to “Thorough interview” however, he admitted. The defence got the impression that nobody can admit an offence which he formerly denied except where torture has been applied to that person.

Another observation he points out relates to the caution statement of the second and the third accused persons. In them, they alleged that the deceased was given poison called termic, a fact not certified by the medical report, and absence of such expert evidence exposed the statement to sheer pack of lies more than evidence of truth. After all the medical report seems not to have revealed any internal injuries or fracture of certain organs despite the second and third accused persons disclosing in their statement that the deceased had been run over by the first accused’s Mercedes Benz of 280 CC Engine. This statement having seen its existence in none other than the second and the third accused persons statements, gave the strong suggestion that this was done at the instruction of the police is order to make out a strong case against the first accused person. This is possibly, so counsel suggests, because the two were arrested earlier than the first accused person, as his where-abouts after the crime, was unknown.

He further submitted that since the first accused’s arrest was earlier than that of the second and third accused persons the latter two seized this opportunity to first deny the alleged killing, thereby throwing the whole weight of suspicion on the first accused person, notwithstanding his role the time he was invited to do so by the police. He also demonstrated good heart by taking the responsibility over all funeral arrangements of the dead body.

Coming to the statements themselves it is indeed correct to say that 28th March, 2002 was the date for recording the caution statements of the second and third accused persons, with 4th May as the date for recording the statement of the 1st accused person. Counsel further viewed the recording time of 7.45 pm, as evidence o long and excruating investigation directed at the first accused person. He finally doubted if the jury panel, which is often composed of men and women of no or little learning, can appreciate the elements of the crime and the impact such false statement can bring upon the first accused person. He backed up this argument with the case o O’Boyle Vs R (1991) 92 Criminal Appeal Report page 2002. In that case it was treated as a wholly exceptional case if not unique in which the trial judge wrongly failed to accede to an application for separate trials when a co-defendant sought to cross-examine the appellant on a confession allegedly made by the appellant in the United States, and which the trial judge had ruled inadmissible. Boyle’s confession of the offence was that the team was led by a Mafia. The court of Appeal criticized that judges refusal to separate the trials. He backed up this case with an older case of Smith Vs Queen (1966) 51 C A.R page 22.

The Court in that case quashed the conviction of Smith due to the fact that the judge, in accepting a joint trial of offender misdirected himself and the court of Appeal quashed the conviction regarding the admitting caution statements.

Further reliance has been placed on section 42 of the Republic of Malawi Constitution which guarantees fair trial to an accused person, as in doing so will avoid the prejudice and unfair trial likely to follow unless the three are separated in their trials.

The second point raised so far in support of the need for separation of accused persons is the manner in which the investigations were carried out. Counsel referred the court to page 3 of the prosecution’s summary of “Known facts”. This statement seems to position the first accused person as the third accused and not the first accused person. This state of affairs has brought about a confusion to the order of offenders. On page 3, the third paragraph there is a statement suggesting that the first accused person admitted the charge after a “Thorough investigations” of him. That gives the suspects the impression that the first accused person was subject to severe torture. Nobody can be “thoroughly in investigated” except on an occasion of ill-treatment that is tantamount to torture.

Counsel further contend that in as far as torture was common to all the accused persons, these statements ought to be removed from the list of the prosecution evidence. After all, our authority of admissibility is the Constitution of Malawi, more especially section 19 which guarantees human dignity by avoiding all forms of acts contrary to this inviolable provision. That section prohibits torture of any form to persons that are under interrogation.

A case on the point was that of R Vs Palito, by Hon. Justice Mwaungulu in criminal Appeal No. 32 of 2002. In that case if there is clear establishment of the torture of the accused person in the hands of the interrogating officers that in itself will make the statements entirely inadmissible in evidence. The DPP has reinforced this point with a further comment that indeed that is now the position of the law, and even section 176 of the Criminal Procedure and Evidence Code, which used to let in evidence of such kind of statements is or has been scraped of the laws of Malawi. That indeed is an admirable development of the law.

Other cases counsel stressed on to this court are firstly R Vs Scatter (1983) ZLR 144H Notes on page 320 has this comment: Where statements made by the accused persons were held to be inadmissible because of evidence that they had been stripped, assaulted threatened with death or indefinite detention. Secondly the case of R Vs Mkomo (1989) Zimbabwe Law Reports volume 3, page 117. It concerned a “mute confession” and the Court of Appeal laid down the principle that before the state produces it in court, it must be established that it was made freely and not through torture.

Counsel went on to quote a lot other case authorities like the English Case of Ismail Vs Regina (1991)(1992) Criminal Appeal Reports page 92, on the need for courts to guarantee human rights under the United Nations Charter. He also went on to Section 11 (2)(a) of our Constitution which urges Malawian Courts to apply Public International Law and compellable foreign case law. To reinforce the point, the Southern African Case of R Vs Zuma (1995) ISCR 566 was cited, a case which dealt with Section 217 of that country that is analogous to our Section 11 (2)(a) of the Constitution.

Counsel went on to Common Law cases where statements obtained under duress are inadmissible. In all these cases and a lot more which I have no time to read and digest, counsel stressed on the need for courts to encourage the Police extract statements from accused persons without showing a reduction of the accused person’s free will. As an exception to this submission, Counsel went on, are the so called professional and experienced criminals who deserve vigorous and hard interrogation – He backed this argument with the case of Gowan Vs R (1982) CLR page 821 an English case.

Counsel went on to cite cases backing the inadmissibility of Caution Statements. Local citations were made and the authorities are numerous all demonstrating how wide counsel has read. All I can say however is that these are authorities before and after the coming into the statute, Section 176 of the Criminal Procedure and Evidence Code.

While I do appreciate the significance of inadmissibility of caution statements, with the principle of proof beyond any reasonable doubt as the standard of proof there is need, to look for corroboration in the caution statement. A caution statement alleged to have been freely made, once extracted will require corroborative evidence to establish the guilt of an accused person.

Having finished his submissions, Mr Msowoya, counsel for the 2nd and 3rd accused persons simply thumb-printed what was submitted by Mr Kasambara. In essence, he is of the same view that the accused persons must be separated for the achievement of a fair trial.

Then time came for the DPP to reply to the defence arguments. In his reply the DPP authentically put it to the court that it is necessary for the three to be tried together. Reasons for such directive is the fact that prior to the death of Alexander Mbewe, the three were together with him on 6th March, 2003. The State has evidence through witnesses to show that the three were seen together, go around places together, drink together and further statements of their own, tell in detail, how the plan was orchestrated by the first accused and successfully carried out by all the three. He also referred to the court, the principle behind the Assim case already cited above. He told the court that the factor that started all this infraction of the law (offence) is a domestic feud that developed in the house of the first accused person leading to the disappearance of the 1st accused’s wife.

The DPP further referred to the medical report on hand and submitted that there could have been no fractures seen on the dead body because no internal examination would possibly be conducted as the body reached the Queen Elizabeth hospital in a decomposed state. The same applied to the administered poison called termic which the 2nd and 3rd accused persons claimed was the first thing to be administered on the deceased before being run over by the car. He referred the court to Section 127 of the Criminal Procedure and Evidence Code. In my observation to these applications I too have this to say; As far as criminal prosecutions are concerned, in terms of offences and procedure, they are statutorily regulated by Parliament. Talk of an offence, of any kind, it never rises from a vaccum except by statute. That is why in the present charge, we talk of section 209 of the Penal Code as the enabling section. Talk of procedure, we have the sister provision to the Penal Code, namely the Criminal Procedure and Evidence Code. These are Acts of long standing and could better be described as the Lawyers Text book on criminal procedure. When we read books such as Blackstone on Criminal Law and Procedure, they are there to condense the law into meaningful principles for simplicity of the law. It facilitates the lawyers’ work by making reference to various sections on the law and procedure.

Malawi as a state, has not denied itself that paramount necessity of regulating its own procedure. I do believe all commonwealth countries have their own laws, but most of the penal and procedural laws are patterned on the English statutes, hence the recognizable evident and distinct similarities that Malawi legal system finds itself with the other systems.

The DPP has drawn the courts’ attention to Section 127 of the Criminal Procedure and Evidence Code. The abridgement reads:

“Joinder of counts in a charge and jointer of two or more accused in one charge.”

Joinder can therefore be of counts or persons i.e. the offenders. There is only one offence in this case, namely that of murder. The worry the defence harbours is not about the charge as such, but the states’ failure or unwillingness to sever the offenders from that one charge. A synopsis of Mr Kasambara’s address to the court was that the 1st accused person must be severed from the 2nd and 3rd accused persons. This means in essence that if the court exercises its discretion to sever the suspects, the court will bring about a situation of two trials in one case. There will be created two charges. One of murder against the 1st accused person alone; and another of the same murder against the 2nd and 3rd accused persons.

And yet the offence alleged by the prosecution is one of murder contrary to Section 209 o the Penal Code. The date of death mentioned in the charge sheet is 16th March, 2002. The scene of crime is at a bridge along a river called Navunde River. That crime occurred in this district of Nkhotakota.

Let us look at this from a human point o view. Imagine the charge called “Murder” was a person. A B & C, on 16th day of March, at Navunde Bridge in the district of Nkhotakota assaulted Mr Murder. When charging AB & C with the offence of assault the prosecution says “you A on 16th March 2002 assaulted Mr Murder”. Then you B on 16th March, 2002, assaulted Mr Murder. Then you C, on 16th March, 2002 assaulted Mr “Murder”. It is indeed possible to separate the accused persons in the manner I have put it. But the cost result to both Government and the victim, namely Mr Murder, will be prohibitive, costly and time consuming. While A, B & C will go to court at their own respective times, the court will be embarrassed with the tautology of the sight of Mr Murder, giving the same story, mentioning the same place. And should need arise to visit the scene, of visiting the same place three times to establish the same point. This argument, let it be observed, applies even without A, B and C agreeing to injure “Mr Murder”. Whether the primary instigator of the attack on the victim was A, or B, or C, but as long as each person decided on his own to attack the victim whether as a way of assistance to each other or on each person’s own accord, the three must face a joint charge. It would be more appropriate where an element of conspiracy is in view.

I now turn to the statutory provision of the Criminal Procedure and Evidence Code, in particular Section 127 already mentioned here above. Section 127 subsections (1) (2) and (3) cover situations of joinder of counts on one charge. Subsection (4) (a) to (f) cover joinder of offenders in one charge. The present case falls under this latter category.

To cut a long story short let me quote the section which reads:

4.
The following persons may be joined in one charge and may be tried together.

1.
Persons accused of the same offence committed in course of the same transaction,

2.
Persons accused of an offence and persons accused of abatement.

For the defence to convince this court to take this case away from the above provisions more is required than just targeting the caution statement and the “thorough investigation” allegation.

Perhaps let me say a bit about the “thoroughness” of investigation. The word “thorough” in the ordinary lexical definition means “exhausting or complete, or comprehensive”. It also means widespread, all-embracing meticulous, conscientious, or painstaking. In simple language, I think it will not be far from exactitude if I say that the investigators did all they could to get hold of all or some valuable information which led to the revelation of the offence.

Now for the Defence to try and make this court associate the word “thorough” with an act of “violence or threat or coercion” that approach cannot be accepted by this court. Indeed the three were all along from 5th March, 2002 moving together. Mode of movement was one. The three in company of each other went to various places such as Dedza, Lilongwe, Dwangwa and Nkhotakota. We cannot separate these three, for doing so will amount to deceiving the court and the witnesses. That might amount to duplicity of charges.

As long as there are statements, that when Alexander Mbewe was being tortured, or poisoned, whether by the 1st accused person, or any of the remaining 2nd and 3rd accused, the other two were present, they have to face a joint charge – either as principal offenders or secondary offenders within the context of the word “abetment” in the section.

Logic, common sense and the statutory provision made it extremely imperative that the three must face the charge together. After all the statements, if they are divisible on the basis of wrong information, the jury will be impressed if any particular point is buttressed with a proper and searching cross-examination, which burden hangs on the defence counsel.

This case has brought to the surface three persons who are accused of the same offence. The offence relates to the killing of Alexander Mbewe. They all did it in the same transaction. According to the proposed acts in the file. That transaction was done at Nabvunde Bridge. Section 127(4)(a) clearly meets all these ingredients that may compel a court to host a joint charge in respect of the three suspects. They, in each person’s own capacity, has made mention of the other three in his statement. That is, the three suspects and the deceased, as a forth person in their company.

The quest that I refuse the statements is also not tenable. “A thorough investigation” cannot represent violent or torturing investigation. For me to imagine that the Police investigators deployed mechanisms of torture upon the 1st let alone all the accused persons, that in itself seems to be ill conceived and unconvincing to me. We know that the Police, when discharging their investigatory duties, have been lured into exceeding their powers and some have been prosecuted for such violent related scenario. But for the state to victimize such officers with such offences, there must be hard evidence as opposed to mere hearsay, or accusation. I agree with the DPP that in prison there are pretentious high-flown and artificial lawyers, busy rendering advice to raw criminals. I have seen people with scars on and around their bodies. That indeed is a product of police torture, if indeed there is evidence of physical infliction of injury in police custody.

In the present case none of that sort seems to appear. I know that in the language of the case of Assim Vs Regina above cited, I have a discretion to separate the three but that discretion is never, and should on no account be exercised irrationally. If I separate them, the trial will produce a state of notoriety and at the same time costly to all parties concerned.

On the question about the casting out of the caution statement, that also is inconceivable. Throwing out those statements at this juncture will amount to destruction of evidence. It will preempt that whole prosecution case. After all, all confessions require corroborative evidence, and by law of procedure and evidence the statement of an accomplice is hardly evidence against a co-accused. These are the grey-areas of a trial in which courts search for corroborative confirmation.

In my own view therefore, I see no justification for the parties to be separated. They must be tried together. The good thing about this case is that both sides are represented by capable legal personnel, to whom this court looks for guidance.

With the above remarks, I order the charges to stand in its, entirety and allow the trial to commence, unless my ruling is a subject of an appeal up there in case I have gone wrong.

PRONOUNCED in open Court at Nkhota-kota Assizes of the Lilongwe District Registry, this 8th Day of April, 2003.

D.S.L. Kumange
JUDGE