In Malawi, mind your call logs: Idriss Ali Nassah

It was chilling, wasn’t it, when it finally sank that Justice Michael Mtambo had found Ralph Kasambara, Pika Manondo and McDonald Kumwembe guilty of conspiracy to murder one Paul Mphwiyo mainly on the basis of call logs and cellphone activity.phonei

In many ways, what Justice Mtambo had done was to ignore an earlier ruling by a higher court—theSupreme Court of Appeal—which had been unequivocalin a different case that call logs cannot be admissible as evidence of what may or may not have been discussed. In their wisdom, the Supreme Court judges envisaged that if such were to be allowed then any person could be convicted of any crime based on the evidence of call logs alone. And that would open a floodgate of convictions of innocent people.

No wonder then, that immediately after Mtambo’s rulinglawyers scrambled to radio stations and newspapers to express their consternation, describing the ruling as ‘strange’ – which is a very polite disagreement any lawyer can give, knowing that they will have to find themselves before the same Judge one day. What that said, though, is that we all ought to be afraid.Very afraid.

And for good reason. For, while it is Kasambara who is at the end of this strange ruling today,there can be not telling who will be at the wrong end of this call-logs barrel, tomorrow.

In this case, a high profile personality had seeminglyfallen; it is natural for us, as human beings to base opinions of the situation by focusing on the subject of the ruling rather than the rulingitself. It is easy, for example, for those who have an axe to grind with Kasambara, lawyers and non-lawyers alike, to celebrate his lynching,while those who are indifferent will say that it is Kasambara’s cross to bear and none of their concern. But the effect and implication of this ruling places everyone in danger of being convicted for something they never did, or knew anything about.

As long as this ruling remains, any person using a cellphones must pray, every day, that no one on their call list—especially those they constantly engage with—shouldeverbe accused of committing any criminal offence.

Because should that happen, they too, face the risk of being found guilty of conspiring with those people they were calling. And, no, it does not matter whether they discussing wedding plans for a family member or are engaged in banter over a Manchester United Football Club win: according to Justice Mtambo, calling a person who ends up being accused of a crime makes you party to that offence. Worse still, being in constant touch by cellphone with anyone and then that person happens to have called someone who later on becomes a victim of assault or murder, means that you and the other person were conspiring to commit that crime. Continuing communicating after you hear of the crime only confirms the conspiracy.

Of course, in days past, this amounted to lousy reasoning but today it is law, thanks to that judgment.But it is a frightening judgment, on which we must all be engaged, starting, first and foremost, with lawyers themselves.Precedent elsewhere that shows that when lawyers stand up against an unjust law, the bench listens.

A good example is the case of Pastor Evan Mawarire, the man behind the #ThisFlag campaign that helped mobilise Zimbabweans to protest against President Robert Mugabe’s government these past months. When the state brought charges of treason against him,more than 30 other lawyers showed up at Harare’s Rotten Row Courtsin solidarity with the defense, in a bold statement that they would not allow the law to be adulterated.In the end the judge had no choice but to throw out the charges.

Some will say, it will be too much for anyone to expect our Malawian lawyers to borrow a leaf from Zimbabwe and show up in gowns and all at Kasambara’s appeals hearing for the simple reason that Malawians are known for suffering in silence. But, I dare say, that for those who openly came out and protested the ruling on social and mainstream media, their protests will come to naught if they fail to protest this law, in a court of law. And for those who are typical Malawians and prefer to suffer in silence, we pray that they must, at least, lend their expertise to citizens who see this for what it is – an abuse of judicial power that will have far reaching implications for years to come. The Supreme Court moved in once against this kind of abuse and it is time we all did our part– even if we might not like Kasambara.

Until this ruling is quashed, we all are at riskof being locked up for murder and conspiracy just because we called someone who called someone who happened to be assaulted. That, there, is the frightening part.

Follow and Subscribe Nyasa TV :

Please share this Article if you like Email This Post Email This Post

More From the World

Sort by:   newest | oldest | most voted
Zaya
Guest
It is totally absurd to rely on mere call logs to convict somebody for a crime. If that is the case then it will follow that Mphwiyo’s neighbours who happened to be in their homes at the time of the shooting at Mphwiyo’s gate are equally culpable in his attempted murder. I would understand a conviction which is supported and corroborated by irrefutable DNA evidence that places the suspect on the scene in addition to call logs or pings of his cellphone handset. Kasambara’s conviction is a total miscarriage of justice. Evidence relied on is totally lacking to convict him… Read more »
kanda
Guest

Aaaa Inu Anassah bwanji kodi. If you do wrong you r at risk indeed. Mupha angati. U shasha ndi mr mtambo pavutapo apa

Not your usual one
Guest

Finally, someone with an open mind and wisdom! Breath of fresh air. Thank you Idriss for this piece.
As you have stated, the judgement of one Mtambo leaves a lot to be desired and puts everyone at risk. Malawians, it is time to wake up and start doing things the right way. Let’s avoid emotions in decision-making.
If Kasambara is indeed guilty of the said crime, then let him be found guilty in the right way. Remember a precedence is being set using Kasambara today, next could be you, me, or Mtambo himself!

Gogo Chalo
Guest

Idriss Ali Nassah, you are one of my a great columnists. If you did not have time to read the judgement, just stop embarrasing yourself and insulting my respect for you

Chidyamakandaena
Guest
Ambuye mwatani kodi? Ku Europe international security experts (Including US experts) have used call logs, among other pieces of evidence, to validate the assertion that Russian backed rebels shot down the aircraft over Ukraine killing nearly 300 on-board the plane. The phone communication pattern among rebels shows, among other findings they say, they were responsible for the downing of the plane. Mentality yochita demonize dziko lanu ndi imene ikukuvutani. Ttile ya nkhani yanu mukadangoti “mind your call logs: Idriss Ali Nassah” basi zidakwana. M’mbuyomo ena ankachita demonize Malawi pankhani ya chimashini chomvetselera ma phone conversation. Britain, China and USA cannot… Read more »
GEORGE MBENDERA
Guest

BVUTO MMALAWI AKAKHALA
PABWINO AMASANDUKA KA mulungu KENA KAKE KUYIWALA
ZOTI KUNO NDIKUNJA

Morgab
Guest

Palibe chanzeru walemba Idrussa Al Nassah. Kasambara and group earlier in court denied contacting each other and the movements location during the stated period but call logs proved it all. Nanga amanamilnji????? Nyiye consipiracy yo

Kanchenga
Guest
I can imagine asking for my money from unfaithful borrower and threatening him him with unspecified action if he doesn’t pay up only to find him dead the next day. Well how about to meet at a joint and then your friend dies on his way there. How about arranging a meeting to share millions made from a deal. You go draw the money and thugs hit you on the way to the meeting. Shaaa justice mtambo how could you be this naive. Anger and revenge. These are two destructive features in life. As a learned person you should guide… Read more »
The Analyst
Guest
O………………………………………………………………………………………………………………………………………………………………………………………………………………………O Idriss Nassah, you are making an error here. A very big error. You see . . . . . . This whole write-up is based on the assumption that the wise, learned, intelligent and most senior judge [Dr Michael Mtambo] carelessly searched for, and randomly picked people whom Manondo and Kumwembe were talking with/to. And Kasambara happened to be the pick; hence his conviction. . . . This is retail thinking and its embarrassing, to say the least! Just come to think of it . . . . . . Was Kasambara the only person the duo might have… Read more »
Piche Yakiti
Guest

Idriss , your analysis has dwelt on call logs only neglecting other facts of the case. Is Raphael kasambara your friend? I thought the towers captured the movements of their phones? weren’t these movements strange? Didn’t the judge point out about circumstantial evidence? I respect you, but on this one, uuuuuuuu…maybe you were not at your best the day you weaved this story !

Bolero
Guest

Piche Yakiti
Do not bisplay your ignorance in understanding analyrical material.Mind you the writer is an objective analyst and I salute him.So please just keep quiet tomorrow it will be you arrested for calling a friend of yours who unknown to you will be under police want list for murder and you will have talked to him that day about football.

wpDiscuz

More From Nyasatimes