Lawyers’ morality questioned in Malawi cashgate cases

Malawian professor of law, Danwood Chirwa, has commented on the public debate on lawyers answering criminal charges to continue representing clients in court, saying it is morally wrong.

Lawyers : Kasambara (right) with his client in cashgate, another lawyer Tukula

Lawyers : Kasambara (right) with his client in cashgate, another lawyer Tukula

Prof Chirwa: Morally wrong

Prof Chirwa: Morally wrong

The debate has been going on in social media and Nyasa Times discussion section after former justice minister Ralph Kasambara  who is facing charges in conspiracy, possession of property suspected to have been stolen amounting to K55 million and money laundering, but at the same time also representing his clients in similar cases.

Nyasa Times asked Chirwa, a professor of law at the prestigious University of Cape Town in South Africa, to give his expert opinion.

In email sent to Nyasa Times, Chirwa said: “Lawyers are officers of the courts. That means that they have duties to their clients and to the courts. Where a lawyer is facing serious criminal charges, he or she cannot represent any accomplice or appear for any party in cases where people who may appear as witnesses in his own case will testify or in cases which are related factually to offences his or her purported clients face.”

The law scholar added: “The ethical problem is that the lawyer in this situation cannot act objectively, and hence be of service to the court, because his interests are at issue. Lawyers’ code of ethics demand that lawyers must not act to promote their personal interests in the cases they appear. The related problem is that the lawyer puts his or her client’s interests in jeopardy.

“A judge who knows that an accused is being represented by a lawyer who is facing similar charges may be prejudiced by the appearance of that lawyer in that particular case. The lawyer is also most likely to emotional, unstable and thus ineffective in conducting the case precisely because his own interests are at stake.”

Chirwa said Malawi Law Society (MLS) has to take measures to protect the public.

“The extreme case we have seen thus far has involved a very senior lawyer who was Minister of Justice and Attorney General [Ralph Kasambara] when cash-gate was being perpetrated. The person is charged in connection with cash-gate related offences but still runs around the courts throughout the country representing persons accused of the same cash-gate offences.

“Firstly, it is a scandal that a former Minister of Justice and Attorney General is facing such charges. Secondly, it is unethical for a person who held such a distinctive office at the time these offences were committed and hence must be assumed to have known what investigations that were taking place then and evidence that was being collected against these accused persons and may be now be using the information acquired in those capacities inappropriately,” said Chirwa in an email to Nyasa Times.

He called the situation a fundamental ethical problem “as it touches upon the integrity of these two offices concerned and brings them into disrepute.”

MLS has however said everyone, including lawyers, has a right to a fair trial.

Another law expert who asked Nyasa Times to shield his name said the legal position is that everyone is presumed innocent until proven guilty.

“Being accused of a crime is not the same as being guilty of one. Now lawyers earn their living by representing others. They have a right to economic activity. If they are stopped how will they survive and put food on the table? Ethically and morally it is up to each lawyer as well as each client to decide on the way forward,” he said.

The law expert said It is generally not recommended for one to represent themselves in criminal cases.

“The golden rule is even if you are that good; ask others to represent you. But it is just a rule of thumb; it is not binding and there are lawyers who have represented themselves and have done so commendably. So we can say if one can represent themselves; there is nothing stopping them representing someone else in an matter which also implicates the lawyer. It is up to the lawyer and the client. It is their choice.”

However, the law expert pointed out that it does not look good in the eyes of the public.

“It gives a bad impression. I would think the best thing is for the Malawi Law Society to consider promulgating rules of conduct in cases such as these. The cashgate has brought new challenges which need to be looked at anew also.

“But there is need to be careful because we live in a Constitutional democracy and whatever rules that may be made should not infringe on constitutional rights otherwise they may be successfully challenged. So all in all it is a matter of choice, between the lawyer and the clients. So far the law does not bar him.”

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44 thoughts on “Lawyers’ morality questioned in Malawi cashgate cases”

  1. contrarian says:

    “Presumed innocent” -if you are a lawyer suspected of a criminal offence but are out in bail. “Presumed guilty” -if you remain in custody and can’t afford bail money. Selective justice, apparently. Justice for the rich and powerful. Deliberate “holes” in the laws, I presume. Or failure to fill in the “holes” by the incompetent and corrupt. Disgusted by so-called justice.

  2. phunda says:

    MANEB doesn’t select failures into sec sch. The university only admits those who have done well on entrance exams leaving thousands with rights to sec and university education . Why should the judiciaryadmit people who have failed the pprofession in this way. Its either incompetence has crept in or they are part of them. Imagine the sentence given to Sezani, does it show that the judiciary is ready to protect the national purse? Remember the Muluzi case and how section 65 case was handled by the judiciary. Parliament must come up with laws to ensure that lawyers and the judiciary are responsible for their actions. Judgements by the courts must also be subjected to some scrutiny by some entity otherwise lawyers and judges will not stop these questionable behaviours..

  3. phunda says:

    Chirwa is right that the judiciary has disgraced the law profession by allowing suspects to represent fellow suspects. This is not about rights and freedom. It is about ethics and morals. Some of our lawyers are far from it. This is why elsewhere noble and responsible people resign in order to pave way for investigation if illegal things happen under their nose.from a layman’s point of view I expected the judiciary being a noble profession to debar all those suspected in the cash gate until they are proven innocent.

  4. Penyani says:

    Cases of cashgate are putting Malawi governing institutions to test. We have been hearing that the payment system the government used through the IFMS was full of holes that lead to siphoning of public funds. Now the execution of these cases is now also bringing to light alarming holes and weaknesses our governing institutions have. It brings one to question whether there can be meaningful development operating in pourous these enviroment. The judiciary also needs patching as it also have holes. In fact the hole system have holes. That is why our economy is failing to be in tune with the world economy

  5. Bus bundi says:

    Lawyers at work with weak laws of malawi

  6. Charter says:

    Yes, everyone is innocent until proven guilty. Chirwa is not arguing against the constitution. There should be exceptions to laws. A sick doctor should not be allowed to treat patients even if he has the right to do so. This protects not only the patient, but also other patients and doctors. When a politician or CEO goofs, we call for their resignation. They don’t have to, but it is only prudent both for themselves and the public to step aside. This is the norm – a good one. It does not contravene the laws. Chirwa is simply saying the same measure should be applied to these members of the Ivy League, who have become more corrupt that general public. Kasambara was minister, Attorney General at the time of the theft. He is implicated in the same theft and officially charged. Why should the constitution be right to uphold his right in this case? In this narrow regard, our constitution should be itself corrupt, then!

  7. Hazrat Pillane says:

    Malawi needs people like you to be AG or minister of justice, there is alot of substance in your article to a layman like me, but i will wait if someone in the same circles ever came to see this enlightment, we are being abused by the lawyers and they seem to care less and the fees they charge are only affordable to cashgate criminals, and where is the so called integrity? Come home and make us be proud of a corrupt free judiciary, am pissed off with the scenarios Prof Chirwa, i love your posts.

  8. Mrs SAM Dalitso says:

    Why is government allowing this. Is everyone blind in malawi. This is morally wrong. Law society, Chief Justice and all the judges magistrates why are you allowing this. Just because we are not lawyers, Malawians are not stupid.

  9. Do you have laws in malawi? This are laws for dead people who can support thieves.

  10. Thoko says:

    MEC, PAC, And MLS all fall under the same umbrella of disgrace so glad I don’t belong to any of these useless organization.

  11. tozer tsono says:

    The lawyer accused of Cashgate related issues ought not to represent clients accused of the same. He gets free access to evidence that other cashgaters do not have. The law must be seen as treating all accused in cashgate issues as equal, with equal access to every piece of information. Having Kasambara represent clients accused of cashgate issues is tantamount to triangulating the justices presiding over such cases, thus the justice system. Can the same judge hear Kasambara case on cashgate and then turn around to hear Kasambara representing a client on a similar case? If allowed, the Cashgate cases will collapse on appeal to the High Court or Supreme court of the land. Prosecutors must not just seek to prosecute but also examine what an appeal in these cases will look like. Kasambara is aiming for an appeals court ruling. There is a conflict here and it will work to the benefit of cashgaters on appeal.

  12. Easy Banda says:

    Raphael is putting legal profession in disrupute and it is only sad that lawyers praise him. issues of ethical has nothing to do whether it is legal or not. He was a minister of justice and attorney general during time of cashgate and he himself is one of suspects and moreover of planned murder pertaining to the same. It is therefore highly unethical for him to be presenting his fellow crooks and moreover knowing that he is using information he obtained on trust. remember, ministers and attorney general take an oath of office to act in best interest of the country and is violating that. This is a scandal, sad, unfortunate and uncalled for. Raphael should be ashamed of himself and he must not think that he is more clever than anyone in the land, time will catch up with him and he will not have last laugh. Malawi is bigger than one person and Malawi has reputation to protect not to be dented by cheap crook.

    1. MMalawi says:

      The GodFather!

  13. Tiko says:

    I can see what lawyers cannot see. This is making lawyers puppets and in no time their profession will be as worthy as minibus call boys. Any organisation that is not ethical loses respect and impact and that will be in no time..

  14. KONDWANI NYASULU says:

    I said here and i will say it now kuti kodi chifukwa chiani Ralph Kasambala amapatsidwa meter pa malawi pano.Why is it that all lawyers and Judges fear Ralph Kasambala?

    Malawi Law Society is morally handicupped- a grouping of vampires, blood sucking monsters and satanists.

  15. Zondiwe says:

    The issue that Professor Chirwa is raising is really fundamental and simple. MLS is confusing a straight-forward issue.
    Should suspects (indeed not convicts) represent other suspects in criminal trials? The straight-forward answer is a big NO.
    of all the lawyers, why should suspects appoint other suspects to represent them?
    MLS is a shame and should be disbanded.
    People will lose confidence in the Justice system in Malawi.
    It is indeed shameful to have Kasambara running around Malawian Courts representing his fellow suspects.
    This is the problem of appointing juveniles into high office; they do not know what to do and what not to do.
    Kasambara is a suspect and that is all. He needs to step aside until the legal processes have taken their course. You do not need a rocket scientist to reach this conclusion. Why MLS cannot reach it is scandalous.

  16. tRUTH says:

    Ku Malawi kulibe law, these are paralegals and they call themselves lawyers. They can not practice across the border, everybody knows their crookedness and incompetence.

  17. chingolopiyo says:

    Bravo Pro Danwood. I totally agree with you. Its not ethical for the lawyers who are being investigated to rep other people on the same offence they are being investigated. Much as anybody has the right , the law should not be soft on lawyers and be hard on poor citizens. No one is above the law, where lawyers or president. All are supposed to be transparent to the way they handle their office to the public. Anyone who is being investigated should be suspended from practising until they are cleared by the court. Do you want to tell me that a police office that is being investigated he should continue working or any other officer where in public or private sector, if being investigated, they have to step done and wait for the court to clear them , otherwise we are sending a wrong signal to the society. Tisiye dyera abale.

    1. Kaka says:

      I never thought much of Malawian lawyers and the cash gate saga has just validated my opinion. What a disgrace!!!!

  18. Ambuje Kukaya says:

    Malawians, we cannot be convinced that lawyers are morally upright that’s the fact. These are human beings, and what differentiates us and them is that they read law in school. That’s all!!! Therefore, they cannot be trusted as moral individuals, no no no.

    1. Kaka says:

      From their behavior I’m not so sure that they read any laws. Total disgrace

  19. Ineyo Woona says:

    AND IT IS FOR THIS VERY REASON THAT JESUS ISSUED THIS WOE ON SUCH VAGABOND LAWYERS

    Jesus replied, “And you experts in the law, woe to you, because you load people down with burdens they can hardly carry, and you yourselves will not lift one finger to help them

    Luke 11 v 46

  20. Nthini says:

    I find tonnes of sense in the arguments the Cape Town law professor is raising. I therefore would like to propose that he be hired to meet the mighty Ralph in court. Indications are that we do not have any lawyer to take on Ralph, the cashgate kingpin.

  21. Gum says:

    Mr MLS President where are u on this one? Are you still afraid of Mr Kasa Mbara even after gauging him.

  22. nyandwile says:

    i was also thinking that if someone is answering serious criminal charges, he gets interdicted until such a time when the clear his name. the mphwiyos and the tukulas will not be working until such a time the courts decide their fates, so whats so special with these lawyer thugs, they are also supposed to have their practising licenses revoked until the courts clear their otherwise already dirty names!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  23. Mwanawagona says:

    I’m one of students At the UNIMA-CHANCO pursuing Law. The conduct of these so called lawyers has really disappointed me to the point that do regret about my choice. I thought its noble profession , but alas! It’s profession full of crooks.

  24. John says:

    So MLS says lawyers have the right to practice law and put food on the table huh? What about the people(public) they stole from and some who died from these lawyers greedness, dont their rights matter? Ralph was attorney general and Minister of justice at that time, which means he had alot of information about all the illegal activities happening at that time, now he is using that knowledge to his advantage. Really? What joke is MLS? That is why companies put clauses in their contracts that when you leave them, you can not use any of their ideas for another company for a certain number of years. Ralph and all thieving lawyers should have been given a certain number of years not to practice law/represent clients that might need him using the knowledge he gathered while he was a minister of justice. As lawyers, you would think the MLS will know that!!!! What is it that makes these guys so scared of Ralph anyone?

  25. Cymru says:

    Malawi Law Society (MLS) comments in the newspapers of 23rd October 2014 are not convincing. I like Justin Dzonzi’s comments in the Daily Times and I quote ‘ He (Justin Dzonzi) added that even though the nature of the assets director’s office works on public opinion, the law must be considered first before anything else is proposed. However, quite naturally, it is clear that the allegation on its own has negatively impacted on his integrity. Being arrested on charges related to corruption puts everyone’s integrity at stake, especially if your office operates on public trust’. (End of quote). Mr. Dzonzi has raised a very picture here. Somebody is also answering similar charges, then how can he or she represent another on the same morally? Worse still, somebody was a minister of justice when the alleged offenses were committed and today is defending somebody? Morally, it is not good but through constitution of Malawi, law, human rights, immoral behaviour, satanism, greedy, lack of ethics as a country and individual and what have you it is alright for suspected lawyers in similar cases to defend a client. Its alright, this is Malawi and after all lawyers are the most learned people. I rest my case.

  26. Mapwiya says:

    Atambwali Sametana Aopa Kuchekana!!

  27. Abiti Mtila says:

    The best way go is locking up all the Cashgate culprits that includes Kasambara, Wapona Kita and others so that those who are using them should find other lawyers. Or first convict and give a sentence to Kasambara so that we should see who will represent these thieves!

  28. Chamba says:

    Does the professor have any practical experience in malawi

  29. thiwi says:

    Inuyo mukudabwa chani pamene pa? You mean you don’t know kuti ma Lawyer onse ngakuba? If ts not cashgate the it’s something else. Which Morals are you talking about?

    1. Bima Matheza says:

      That’s the problem with colonial left overs such as our old infrastructures

  30. Unenesko pera says:

    Guys you are right, angotiphimba mmaso. Just sharing the sheet. Kudetsana. Palibe wa nzeru. Ma lawyer muli mu cashgate zoona? mumalumbira chani mu court. God will do you something.

  31. Mapiyamulupali says:

    IN FACT THE GREATEST THIEVES WE HAVE IN MALAWI AND WORLD OVER ARE LAWYERS. IN CASES OF CASHGATE EVERY SANE LAWYER KNOWS THE HUGE IMPACT IT HAS ON POOR MAJORITY OF MALAWIANS BUT THEY OPT TO IGNORE THE SUFFERING OF THE MAJORITY AND DEFEND THE RIGHTS OF AN INDIVIDUAL. NO WONDER MOST OF THEM END UP IN HELL. SEE THE TESTMONY THROUGH THE LINK. MAJORITY OF LAWYERS AND JUDGES WHO PASSED AWAY ARE IN HELL. http://www.youtube.com/watch?v=s0uWR1KfWJo (Princess Diana, Footballers, Lawyers in Hell)

  32. MALAWIANMOM says:

    HE WANT TO DEFEND HIMSELF BECAUSE HE KNOWS ALL LAWYERS ARE THIEF AND THEY WILL TRY TO GET ALL HE HAS. THEY CAN CLEAN HIM UP GOOD, KASAMBALA KNOWS THAT. OR ELSE NO ONE IS WILLING TO DEFEND HIM.

  33. mboma says:

    I have been in India, the most stupid profession in india is legal profession, lawyers sit at high-court with an Umbella and their laptops looking for customers, the same way minibus touts in limbe seach for passengers, in India the professions that matter much in india is medicine and Information Technology the careers that create a big impact in society, not some stupid fields of bandits who simply reap from poor Malawians by simply memorising very old books and pose as lawyers!!!!!!!!

  34. Kadushu says:

    this will remain the same as long as these lawyers dont see anything wrong in what they do. if one employee is facing the same case he is suspended until his case what about these Lawyers. i think Kasambala is embarrassing himself and the whole Lawyers group. it shows that they are there to milk us and we can not do anything since they are the same who formulated the Constitution.

  35. TSAKHO LIMENELO says:

    Thanks Danwood for your expert opinion but we need you to go home and help Malawi

  36. MIKE NDAU says:

    WHO SAID LAWYERS HAVE MORALS????

  37. Noxy says:

    If we can have this Professor in Malawi ,Malawi can benefit a lot from his knowledge.Bravo Danwood for your outstanding point of view.

  38. ndangodusamo says:

    Look at the Law Society/. Trying to defend their own. Defending the indefensible. Chirwa is making a lot of sense here. You cannot have a lawyers being accused of a case and on the other hand defending another person on the same case. I thought one of the pillars of the Malawi Law Society is to ensure ethical standards in the law practice. Is it ethical for somebody to practice on a case in which he himself is being prosecuted? Inu ma lawyer tikutopelani. tsopano. Kumaona chodifenda. Not everything. Kasambara and Kita must be asked to recuse themselves from the cases, full stop.

  39. Chikadzakuwani says:

    People a´in Malawi are very afraid of this man, this is not normal there must be something behind it.

    1. TSAKHO LIMENELO says:

      Here is Danwood and he is not AFRAID about Ralph Kasambala and he is giving insight about law system in Malawi

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