s
There cannot be any doubt, based on section 9 of the Constitution, the judicial oath and rule 3C of the Code of Conduct of Judicial
Officers in Malawi and the Bangalore United Nations Basic Principles of Judicial Independence (Values 1, 2 and 3) independence, of my duty to
independence and impartiality when ascertaining facts and applying law, to be rid of bias, prejudice or predilections. This is a longstanding
common law notion. That duty, as the flattery from the Director of Public Prosecution beyond measure lavished, I, like all judicial officers, have
discharged. Where, however, there is a real possibility of bias, there is a compelling duty to recuse – but only where there is an appearance (from
the viewpoint of a fair-minded and informed observer) of bias. What concerns is the confidence which courts in a democratic society must inspire
in the public and the parties.
 The Director of Public Prosecution, however, never proved conduct on which to base bias. Assuming the Director of Public
Prosecutions did, the conduct never amounts to one on which a judge’s impartiality is questioned and on which a judge should recuse. Moreover,
the comments the Director of Public Prosecution relies on are so remote in space and time – seven months after. Additionally, this Court on 16
October, 2016 delivered its judgment in Kusowa v Republic, (2015) Criminal Appeal No 9 (MSCA) (unreported) after comments in the Malawi
Law Society Google Group. That decision was not referred to the full court. On the admission of the Director of Public Prosecution, on 17
January, 2017, the Director of Public Prosecution represented, this court delivered the judgment in Letasi v Republic (2016) Criminal Appeal No
13 (MSCA) (unreported). The Director of Public Prosecutions, three months on, never referred the matter to the full court. There was, therefore,
acceptance of the decisions of this court which, being the latest, bind the court below and, unless reconsidered, bind this court – and me, by
extension. Consequently, in deciding the matter today, this court would be influenced by these decisions – not comments made, now seven
months, which have been superseded by clear judicial precedents which – on analysis – go beyond comments made on the Malawi Law Society
Google Group from 10 June, 2016, well before Kumwembe and others v Republic (2013) Criminal Case No 65 (MHC) (LR) (unreported).