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| National |
| Chilumpha treason case: Defence challengesBazuka on jury |
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by
Joseph Langa, 24 February 2007
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08:59:11
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Vice President Cassim Chilumpha will fight government over its decision to try his treason case without a jury, his lawyer Fahad Assani has said.
Assani said he will file the application to challenge the minister’s decision when the case approaches trial time saying they have already worked on the application.
He said the law Justice Minister Bazuka Mhango used to try the case without the jury is outdated and is in conflict with the Constitution which provides for an independent Judiciary.
“The law the Minister used was drafted in the 1970s when we didn’t have an independent Judiciary. Then the Minister of Justice was able to command the courts on how to manage its affairs.
“There was a Chief Traditional Courts Commission in the Ministry of Justice who was overturning the decisions of the courts and the Minister was [former President Hastings] Kamuzu [Banda] himself,” argued Assani.
He said such a law cannot be used together with the current Constitution which provides for an independent Judiciary without interference from the Executive.
“Any law which is not in line with the constitutional provision is invalid. That is why we are challenging the minister’s decision because he used a law that is in conflict with the Constitution,” he said.
Assani said according to the Constitution, all criminal cases are supposed to be tried through a jury (independent people who pass the verdict after the case).
“You cannot leave such a complex case in the hands of one judge. There has to be a jury to hear all the evidence and make a verdict,” he said.
High Court Registrar Sylvester Kalembela confirmed last week that Mhango has given a notice to the High Court to try the case without a jury saying he has powers to do so under the penal code.
He said this was not the first time the minister applied such powers saying the minister also used the same powers in the case involving the late Alice Gwazantini who splashed hot water on her maid.
Asked why the ministry does not want to use the jury in the case, Attorney General Jane Ansah said depending on the complexity of the case, the minister has powers to write the High Court, adding that the jury is used on cases which are easy to understood.
“You look at the complexity of the matter. Some cases are complicated,” she said.
Ansah also said jury trials are very expensive and take long to be completed. She also quashed allegations the Constitution conflicts with the penal code.
“There is no question of dictating [to the court]. The fact that the Minister has those powers doesn’t mean it overrides the Constitution,” said Ansah.
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