Ntata on Kasambara’s trial: The untold story

The guilty verdict handed out by the high court to flamboyant lawyer and former Attorney General Ralph Kasambara, SC is not simply a matter of the law taking its course.

Kasambara (right) and Mphwiyo

Kasambara (right) and Mphwiyo

It is so much more than that. In the excitement that gripped the nation on the day of the verdict-the verdict was broadcast on no less than two television stations and there were running commentaries online and social media-it is easy to join the bandwagon and start analysing the verdict, the evidence and the lawyers’ arguments.

Kasambara leaves the court premises in Lilongwe after the convictionKasambara leaves the court premises in Lilongwe after the conviction

I have heard and read many such excited analyses. Back in my active lawyering days, I would have been equally excited to read the judgment, critique the judge and offer an opinion on whether the verdict was deserved, supported by the weight of the evidence or whether the judge erred in his reliance on call logs and Kasambara’s forthcoming appeal should be anticipated with bated breath.

But since I moved on, I must glean from this exciting saga some important lessons and observations that might not be obvious at first glance.

Judicial courage

The Kasambara case has shown us once again that it is possible for our judges to be brave and courageous enough to handle sensitive and politically volatile cases.

This is an important and necessary element in a country with a weak governance framework.

The country’s judiciary hopefully remembers that it is probably the last refuge of the Malawian citizen victimised by a greedy and self-centred executive too bent on unscrupulous plunder of public funds to care about serving its citizens and a parliament betraying its electorate because of greed, weakness and fear.

In this regard, this display by the judiciary is an important victory for our governance system.

The rumours that started floating around soon after the glitzy lawyer was charged were that our judges were shying away from handling the case, offering one excuse after another, not having the courage to preside over a case that was certainly one of a kind, involving an accused that had a reputation for being apparently a brilliant and rather crafty and ruthless customer.

Some said the case was never going to see the light of day, that justice would never really be served and that chances of the trial reaching completion-if it ever got started at all-were few and far between.

There would be no trial for Kasambara, they said. He was too clever and too smart for that, they said.

It appears they were wrong. It appears these rumours were either simply idle talk or wishful thinking by Kasambara’s fans.

It is important to commend the judiciary and perhaps the judge specifically for courageously and rather efficiently seeing the matter through.

More importantly, the role of the victim, former budget director Paul Mphwiyo, as a state witness should not be overlooked.

It must have taken a lot of courage after an attempt was made on his life for him to come forward and testify against his attackers-who were on bail and could do anything!

They had after all, tried it before! There were stories of his being harassed, and his mother’s house being attacked. It could have been intimidation or mere coincidence.

Either way, he went ahead in spite of the probable post-traumatic stress. A mature democratic dispensation needs such courage from witnesses as well as judges in order to have a justice system that people can trust and count on to see justice not only done but also seen to be done.

Above the Law

In as much as the state has shown to be capable of bringing highly popular characters to face justice, it is, however, still the case that this only happens when you are an enemy of whatever political dispensation prevailing at the time.

It is not idle speculation to suggest that had Kasambara been connected to the ruling Democratic Progressive Party (DPP), he probably would never have come to a similar fate as he has done in this case.

We must remember that this case was started in the previous political dispensation when Joyce Banda was president. Thus, from a governance perspective, there is still more to be done in ensuring that no one in the country is above the law.

I recall that the matter proceeded in a haphazard fashion-especially after Kasambara declared that he would call then president Joyce Banda herself as one of his witnesses.

There was excitement that in the course of the trial, a lot more secrets of Cashgate and Banda’s alleged involvement in it would be revealed.

Could that have been the reason the matter was only pursued earnestly when Joyce Banda was deposed and the DPP took over power? Could the DPP government have been pushing for the case in the hope that it would produce some political benefits? This is not an idle theory.

There have been many allegations of criminal activity involving DPP sympathisers in the past two years and none of them have been investigated, let alone charged or prosecuted.

As much as the Kasambara trial is a case of justice probably running its course, it is also an unfortunate underlining of the governance deficiency in the country-the fact that when you are supporting the ruling party you are untouchable and above the law, and that for certain people to eventually pay for the many criminal activities they have committed in the country, we all will have to wait for them to fall out with the ruling potentates.

The cause of politicians to constantly prostitute their morals and cross the political floor in favour of the ruling party can be explained in part by their desire to avoid being investigated and prosecuted if an adverse political dispensation takes over. This pollutes our politics and severely compromises the country’s governance framework.

Contradictions

There is a question that is required in most murder trials that was not fully and clearly answered in the Kasambara trial. This is the question of motive.

If Kasambara truly conspired with two others to murder Mphwiyo, what was their motive?

This is an important question. In my own earlier investigation into Cashgate, I had suggested that in spite of some arguments to the contrary, it was becoming clear that Mphwiyo was shot because he was probably the one who uncovered Cashgate. The prosecution in the Kasambara trial seemed to agree.

In their case, Mphwiyo was about to expose Kasambara’s role in the cashgate scandal and that was the motive behind the attempt on his life. But if this was the motive and the prosecution truly believe that this was the reason for Kasambara conspiring to murder Mphwiyo, why is the same prosecutor also accusing Mphwiyo of Cashgate related offences in a separate case also currently in the courts?

Are we to believe that Mphwiyo, the victim of a murder conspiracy and an attempt on his life for fighting Cashgate, is also its mastermind and instigator? It is a sad contradiction for the future as it may discourage other whistle-blowers.

A future potential whistle-blower may decide to keep their mouth shut for fear of being considered criminal masterminds!

If in our governance system, we allow for this kind of contradictory thinking to continue, it will be very difficult for the country to move forward, especially in matters of corruption and government malfeasance.

Those that are given the responsibility of safeguarding the country’s criminal justice system need to be more competent and more consistent in their thinking.

The Kasambara trial may have scored points for the government, but for me, it leaves a rather conspicuous governance sour taste in the mouth.

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14 thoughts on “Ntata on Kasambara’s trial: The untold story”

  1. Mwananyanian says:

    Aaaaaa! Mr Ntata. I see no contradiction AT ALL in the thrust of your section “Contradictions”
    You kidding me? There are no contradictions in fact or in law here.

    It would be a tragedy if whistle blowers were provided immunity, 100 per cent immunity, even if they were involved in the crime. One could blow the whistle, in an attempt to dupe the police, or even the justice system as a whole. Criminals attempt this, albeit naively, all the time, all over the world. And Mr Phwiyo and Malawi are no exception.
    Furthermore, Mr Phwiyo’s prosecution on Cashgate is very appropriate, if the evidence exists. His Cooperation in Mr Kasambara’s case was commendable; but should have nothing to do with Cashgate, the mother of all financial corruptions (we know of) in this country.
    You could have easily scrapped that last section, and still have a blast of an article.
    Yes, the judge in Kasambara’s case must be commended “heavy”: I mean he took up a case, high profile in any metric, and completed it. And, like you said, many judges would chicken out with frivolous excuses. Yes, we are a very small country, and the legal fraternity is so small that every lawyer pretty well knows most of the other lawyers personally. But this should not be a reason for judges to recuse themselves from cases: Judges know this scenario in the first place when they apply for, and accept the job.
    We are NOT the only small country in the world: Look at some of the countries in the West Indies, for example; they are even smaller, and yet justice is often transparent and prevails.
    We, Malawians, have a lot to learn: but the learning curves seem to be too steep for most of us.
    Incredible, but true!

  2. Chalume says:

    I rarely agree with the author, particularly for his own contradiction, i.e., that falling out of favour with the DPP has led to his objective thinking. I remember all those times he was defending Bingu on tax-payer funded MBC, a contribution he will agree was abuse of power by him and his then political masters. I agree with much of this article, up to the point where the contradiction creeps in. In short, I think the author has no knowledge of Mr. Mphwiyo, and for the connections that everyone else sees in this complicated case between the “victim in the shooting” and his meddling in government financing.

  3. Smart Boy says:

    Bravo Judge Mtambo. Allan, you are superman. The wicked, corrupt and evil ones that have caused suffering of Malawians by plundering funds, fraud, corruption, murdering innocent people have no peace. Their children will remain bloody and cased and they will have no peace too. Sad that great as Raph is seen and believed he would be a darling of criminals. How would one on earth in the caliber of this great natural talented lawyer be friends of criminals. Who knows the victim of the said shooting could be one of the criminal gang members. Deal may have just gone sour, who knows. Justice will come out too. If Mphwiyo plumbered, let justice follow him too. Brave Judge Mtambo.

  4. Toro says:

    Thank God you are no longer practising law otherwise you would have a crap . In other words just because you were once upon a. Time of planning a Coup you were guilty as charged !

  5. Ambuje says:

    Kasambara’s prosecution was a side show by the DPP government, targeting an easy scapegoat. Kasambara’s role in government was that of an Attorney general and Minister of Justice. We haven’t heard any rumors of massive plunder of government resources in the Justice ministry. The big Kahuna’s in the ministries of finance were the signatories to the huge cheques that were paid to zombie companies and they haven’t been prosecuted. As a financial person, payments have to be approved before being made to vendors. Who approved the vendors? Who approved these massive payments in million of kwachas to zombie companies? Who approved the requisition, the purchase order, the wire transfer and the huge cheques?? Go after those people and not this side show. The upper echelons of the Malawi government has to be cleaned of these parasites otherwise the plunder will continue. I strongly believe that Phwiyo has a case to answer. As a Budget Director in the Finance Ministry, he should have raised red flags early on when government departments were spending their annual budgets in 2 months.

  6. Harawara says:

    This was mafia style case and it needed a mafia like judge to make a bond ruling. Malawi was or is sliding into a mafia state where vices can prevail and virtues are punished. Weak minds can might not comprehend rules of mafia world. There one’s life is a property of the other and can be taken at will. Their under world work is planned and executed in grand styles. And this is what happened. Every step they take is rehearsed to make it case proof. Countries like Mexico where drugs cartels rule such kind of shootings and disappearances are not uncommon. Here were two cashgate cartels trying to out do one another. One shot first before the other one did. Viva Judge Mtambo!!!

  7. International Observer says:

    In other words Ntata is implying that Mphwiyo being a mere whistle blower it follows suit that Kasambara was not acting single-handedly, that someone influential and big enough was pressing buttons in the background. If this is what it entails then the public would wish to know who this big fish was. Abysmally, the organization entrusted to take stock of legal matters seem to have lost their plot. Instead of coming up with issues that will help in a fair and long lasting solution in solving the case, they are busy talking about removing Kasambara from their register. Actually Ntata has given your idle and dormant offices of the Malawi Law Society some work to be done faster before the other cases are tackled.

  8. kumakazi says:

    Mr. Ntata, I dont agree with your analysis on contradiction. have you ever though of a deal gone sour where Mphwiyo and kasambara were all involved in Cashgate only that disagreements came either fro the way the embezzled money was shared?
    I for one believe these guys knew what they were doing and wanted to kill each other for. I suspect greed crept in in the process of cashgating Government.

  9. The Analyst says:

    O……………………………………………………………………………………………………………………O
    Malawian judges are known to be cowards, wholesale and retail;
    . . . who; like a dog who is afraid to fight, coil up their tails;
    . . . coz they know that to be unbiased and competent, is a task which they will clearly fail;
    . . . and thus recuse themselves, even when nobody asks them to do so; thus refuse justice to prevail;
    . . . especially in a case involving a figure, just too well known to be sent to jail;
    And yet all this; is a clear show of lack of trust in their own ability and unbiasedness; one can easily tell.
    …………………………………………..
    But one thing is very clear, Mtambo is not one of such judges.Thus,
    . . . he refused to recuse himself when he was asked, forced and even threatened to do so.
    . . . and stood his ground, even when almost everybody (esp. commoners) criticised him on his refusal.
    . . . coz he knew that Kasambara would bribe the would-be-judge and justice would be betrayed.
    Such courage is rare, and everything that Malawi needs, in its justice system.
    . . . We need more such sensible judges in Malawi,
    . . . who; using logic and not emotions, understand the need to be professional in one’s job.
    Kudos Dr Mtambo! At least I have something to smile about, about Malawi.
    O………………………………………………………………………………………………………………….O

  10. Patriot says:

    To answer your question on motive, criminals do plan and undertake to eliminate one of them if they see that one has been compromised. In many cases this is a taken as a preemptive measure so that the core criminal setup is not revealed. Ikalakwa kapena ukawona kuti anzako akukufinya umati ndiulula. In this case Mphwiyo was the ultimate risk to those involved. It’s possible he intended to do the same. When it went out, it was apparent everyone involved were making efforts to clear their way. In the same way the issue comes up of sharing the hidden spoils. So no stone was to be left unturned even if it meant shots being fired or using other threats. No contradiction here and Mphwiyo is not a saint

  11. Mtumbuka wozitsata says:

    It really Doesn’t add up..How could Mphwiyo a fellow Cash gate Player (Master Minder ) and Instigator tried to reveal about the plunder hence ended up being banged by fellow associates..Im pretty sure something is missing here.

  12. KOMA KUMENEKO says:

    Even EC chair is supposed to be a person of Mtambos calibre, true son of malawi patriotic , is when this country will see the light of development ……………. wanthu akwiba chomene mpaka mwawuno mu boma lenelili la DPP kugawana makopala kopanda chisoni.

  13. Zowazowa says:

    You need some good writing classes, preferably from an American school. The essay lacks coherent flow of the arguments nor a conclusion. What is the purpose of this writing? Is it an op-ed, a review of the legal arguments, review of the veracity of the case itself, a rebuke of the disappearing separation of powers that hold a democracy together?

    So, coming from someone with influence, we expect a concise topic statement and conclusion. Simply said – this is a meander of facts, opinions and bats-ass speculations. But the case itself is pure BS – no one has sympathy for a ruthless thief, killer, abuser of women like “mbara”. No wonder social media has moved on already!!

  14. mjiba says:

    For the first time reading your articles. This one is spot on Allan. Maybe you could have handled the office of the Director of ACB better if this is your thought process. My take the judiciary must play a role in sanitising massive plunder of government resources by the well connected. Judge Mtambo has taken a bold step. Kudos

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