Threat to British lawyer defending Dr Banda in murder conspiracy trial

TWO British lawyers have been closely involved on opposite sides in the build-up to a remarkable trial which is scheduled to begin this week in Malawi.

The trial, which could still face delays because of the problems of swearing in a jury acceptable to both sides, sees Malawi's former President, Dr Hastings Banda, being prosecuted in absentia on a charge of conspiracy to murder.

Geoffrey Robertson QC, the well-known liberal lawyer who successfully defended the Matrix Churchill directors in 1992, has been advising the prosecution in the marshalling of evidence and on the law.

Mr Robertson, an opponent of capital punishment, has advised the Malawi authorities not to pursue a murder charge, which in that country carries a mandatory death penalty, and in the past month this indictment has been dropped, leaving Dr Banda to face the lesser charge of conspiracy to murder. This carries a maximum sentence of 14 years.

Dr Banda and one of his former colleagues are being charged with conspiracy to murder four politicians who died in May 1983.

Dr Banda, who is 96, has been deemed too infirm to stand trial in person and is being kept under house arrest in Blantyre for the duration of the case.

Defending him is a team that includes Bernard Clarke, a 38-year-old partner in the London-based firm of Memery Crystal.

Mr Clarke, a former Cambridge University rugby blue who is also currently acting for creditors of the collapsed BCCI bank, was last week threatened with arrest and prosecution by Malawi's Director of Public Prosecutions after holding a press conference at which he queried the motives of one of the prosecution's key witnesses.

There have been several postponements of the trial already, partly because of Dr Banda's ill health and problems in empanelling a jury.

Last week Mr Clarke was warned by letter of his possible arrest and prosecution after he highlighted a controversial payment made to one of the key prosecution witnesses. Mr Clarke says a payment was made to Mrs E Kamwana, the widow of the former Inspector General of Police, which is to be used for the education of her son at a private school in England.

The payment, he said, was from the national co-ordinator of Malawi's Poverty Alleviation Programme, and could be viewed as a financial inducement to a prosecution witness.

The defence says that a witness has come forward with a signed statement suggesting the following:

n that Mrs Kamwana has known the Malawi President for some time and that he personally asked for her assistance in providing information in the murder case;

n that Mrs Kamwana is a close friend of at least one other prosecution witness, an officer who, having admitted his involvement in the murder, was subsequently charged. He, it is said, first approached Mrs Kamwana asking her to provide information. Later he became a prosecution witness. The charge against him has subsequently been reduced to abuse of office and he has been released on bail;

n that Mrs Kamwana has received other money from the Poverty Alleviation Fund and other sources.

Mr Clarke rejects the suggestion that he has tried to libel the Malawi Director of Public Prosecutions and says that the contents of a letter from the Poverty Alleviation Fund were a matter of public interest and were as much a subject of concern for the prosecution as for the defence.

"This trial should be seen to be fair," says Mr Clarke, who adds that he has reservations about whether the defendants can have a fair trial.

Mr Clarke has conveyed his concern about the threats that have been made to the defence team to Baroness Chalker, the Minister for Overseas Development.

He wrote to her: "These developments are very worrying for us.

"At present we have an Assistant Solicitor, Benjamin Kent, in Malawi and Clive Stanbrook QC is due to travel to Malawi for the resumption of the trial on 24 July 1994.

"In the circumstances we thought that we should inform the Foreign Office and the Malawian High Commission (to whom this letter is being copied) of the current situation."

Geoffrey Robertson is unlikely to play a role in prosecuting the case in court because the Malawi authorities prefer to have the prosecution led by a local lawyer.