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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contrarian
Guest

“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.

phunda
Guest
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… Read more »
phunda
Guest

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.

Penyani
Guest
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… Read more »
Bus bundi
Guest

Lawyers at work with weak laws of malawi

Charter
Guest
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… Read more »
Hazrat Pillane
Guest

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.

Mrs SAM Dalitso
Guest

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.

Mbowe Mulambia
Guest

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

Thoko
Guest

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

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