Muckracker on Malawi ‘judicial logjam’

 “Three things cannot be long hidden: the sun, the moon and the truth”Buddha

Let us continue with last week’s theme, the ‘Cashgate logjam’, where we interrogated the Catch 22 situation where he defenders have become the pursuers.

Attorney General Kalekeni Kaphale, whose name is all over ‘cashgate’ – not as a direct beneficiary, but as the legal mind trying to get most of the cashgaters off the hook – in the past week tried to trick us into believing he cannot be this, that and the other. Clever guy, but let us call his bluff later.

First, the muckraking community is proud President Peter Mutharika is one of us. He reads what is written about him, against him and for him. That is great! A leader must know what his people are happy or worried about. Not everything that is written about leaders is complimentary – it should not be; most is negative, often innuendoes, but a good leader must absorb it all.

Kaphale:Tried to justify that there is no conflict of interest in his handling many cashgate case

Kaphale:Tried to justify that there is no conflict of interest in his handling many cashgate case

That is why the muckraking community registered its dismay when Ama the other day declared she does not read newspapers because they killed Bingu. How mere newspapers murdered such a self-believing arrogant guy only Ama knows!

But a leader must not be afraid of what his or her people are talking about.

So kudos to Peter for reading widely.

Of course, the President contradicted the muckraker for depicting him as a warlord ready to do battle with Jakaya Kikwete.

But help me understand this quote: “”Yes, I did say that the lake is not negotiable, I never said that I was going to go war; Mr. Tenthani had that picture of me, as warlord, carrying a bazooka and so forth, to say that I am going to attack Tanzania.”

Ok, ok, but my good president went on: “I am a very peaceful person; I don’t fight unless someone attacks me.”

A peaceful person, Your Excellency, Sir – if you believe in Jesus of Nazareth, offers the other cheek when attacked.

Ok, ok, maybe Peter is also not Jesus like his eccentric brother declared the other day! But the good professor added: “We are not going to go to war but the lake has been ours for 104 years; the law is very clear, I think there is very little room for negotiations on the issue of the

lake.”

Ok, ok, but I do not know what will happen when the other side dig in their heels too. What will break the deadlock? One or the other has to blink or one of them has to be forcibly made to blink.

How will my old ol’ prof do to force Kikwete to blink without showing him the bazooka?

Anyway, we do not want war with our northern neighbours despite our leader’s contradictory stance. I have precious friends from Karonga whose kith and kin will be the first to bear the blunt if things go to the wire, as it were.

So, while Peter convinces Jakaya for a fishing expedition on the lake (my good friend Ken Lipenga should tutor the two leaders his favourite spot, snorkelling), let us interrogate the muckraking business of the day.

So Kalekeni Kaphale tried to justify that there is no conflict of interest in his handling many cashgate cases and his being made head of the Bar?

I know Kaphale is a good man, a good lawyer too, who means well. He, in his justification that he does not create conflict of interest, told The Nation: “I am making sure that I do not create any conflict of interest in cases involving my former clients.”

Kaphale actually said he asks his officers not to seek his supervision in terms of opinion or direction. But, wait a minute, was it not Kaphale who wrote back to Chief Cashgater Oswald Lutepo the other day?

In fact Kaphale represented Lutepo and Paul Mphwiyo when the two wanted to subpoena mobile phone call logs. How can he split himself from personal involvement in cashgate cases?

But it is not only the Attorney General who is caught in conflict of interest in the Judiciary. Both Kaphale and Justice Minister Samuel Tembenu were lead lawyers in the infamous ‘Mid Night Six’ treason cases where DPP top dogs wanted to subvert the constitutional order  when President Bingu wa Mutharika dropped dead during those ‘three mad days of April’.

Suddenly, after the change of guard at KamuzuPalace, Peter gives all the ‘Mid Night Six’ comfy jobs in his Cabinet. Not only that, their lead lawyers are drafted into key positions, one even made it into the Cabinet.

And then what happens? All the ‘Midnight Six’ treason cases are discontinued.

Wow! I know after being elected president Peter could not be tried, at least not during the five years he is lording over things from State House. But why discontinue the treason cases of the other characters who are not covered by the immunity clause?

Interestingly, too, Tembenu was lawyer for the disgraced Clerk of Parliament Matlida Katopola who had that little issue about her company selling stuff to her office. The good lady was asking for billions for constructive resignation.

Of course government fought hard to prevent government coffers from oiling her life. But once her lawyer became the political head of the Ministry of Justice, the case was quickly resolved and the good lady got her cool billion.

I am not suggesting some hanky-panky happened here, but…mmmh…the coincidence is just too great to be ignored.

Back to Kaphale, he claims he excuses himself from cases his former clients are involved in. But, if you read your statutes properly, the Attorney General gives “special and general directions” to the Director of Public Prosecutions.

Now, imagine there is an acquittal in any of the cashgate cases and the state wants to appeal or the accused wants to sue for malicious prosecution, false imprisonment, defamation, loss of business and all that jazz.

The defendant, in this case, is inevitably the Attorney General. How is Kaphale going to extricate himself from this? He has to take the cases himself lest he wants government to lose millions in default judgments.

How does that stop being involvement in cases of his former clients?

It is not only Kaphale who is in a compromised situation. Look at the new DPP Mary Kachale herself. The good lady is married to Justice Chifundo Kachale who is presiding over some cashgate cases.

I do not doubt Chifundo and Mary’s impartiality, but what can stop them discussing, even laughing over, the cashgate cases in the warmth of their bedroom?

My point is justice must not only be done, but must be seen to be done. Having main actors in compromised situations may not aid that principle.

The article first appeared in the Sunday Times newspaper.

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