Exclusive interview with Malawi ex-Attorney General: Kaphale says poll case offers ‘mouthwatering academic dish’

Former Attroney General  (AG) Kalekeni Kaphale a Senior Councel  (SC) has returned to private practice as a lawyer  well known for taking up cases involving high-profile individuals in society. Nyasa Times solicited an exclusive interview with Kaphale who has been a lawyer for 29 years and has previously served in the public sector as chief legal counsel for the Malawi Revenue Authority. He is now back to Kalekeni Kaphale Lawyers, a private legal firm.

Nyasa Times interview excerpts:

Nyasa Times: How have you been faring since you left office end of June, 2020?

Kaphale: Very well, actually. Only that I am somehow exhausted as I never took a break but went straight to my law firm. It had been a hectic second half of 2019 as, immediately after the elections, there came the post – elections litigation and thereafter preparations for fresh elections. It was a tough period for the office of the Attorney General.

Nyasa Times: How do you rate your first term in office as Attorney General and the second and final term?

Kaphale: I would not call the first term a walk in the park. There was significant litigation, the most important one being the Malawi Mobile litigation at the COMESA Court. Added to that it was my first time on that job. However, the first term was far much easier compared to the second one. Of course, I knew when the offer came for me to serve another term that I would be flying headlong into a vortex with elections looming and what normally comes after that. But then, I have always cherished a challenge or two and these drive me as a person. So, when the offer came along, I took it with both hands and the rest, as they say, is history.

Nyasa Times: Any comments on the Presidential Elections case and its aftermath?

 Kaphale: Well, that was perhaps the most significant public law litigation any lawyer would wish to have participated in either side of the aisle and I am privileged to have been part of it. The result was seismic, of course. My client lost as you know, and my office had to counsel them on the way forward.

The case is important in the legal history of Malawi and for the various lessons it offers to all and sundry and especially to the legal and political fraternity. Some of the lessons have already been absorbed, but a lot more are to be discovered as we move along as a nation.

The loss was painful,  but having been at the bar close to 30 years now, the pain was nothing new as every lawyer has in their career suffered a loss or two. What is important in every such scenario is for one to learn their lessons and move on with life.

It is a pity that up until now, academics have not yet done and published  comprehensive analyses of the judgment from all available angles and I wish they did that sooner than later. The case offers useful insights into constitutional law and theory, statutory exegesis or hermeneutics, the law of evidence, and in several other areas. Unfortunately, having participated in the fray, I am ill -suited to have a go at analyzing it. It offers a mouthwatering academic dish, I must say, and I do not mean it in any negative sense.

Nyasa Times: How are you adapting to life after office?

Kaphale: The past six months have been quite hectic and I have had no time to take a break as I have had to quickly re- educate myself on various aspects of private law work that I was not able to constantly practice in the former office.  At the same time I am trying to improve the firm’s brand as well as mentor and supervise the young lawyers under my tutelage.

Nyasa Times: What is your assessment of the quality of public legal services in Malawi?

Kaphale: To be honest, our young men and women in Government legal services are a rare breed. Most of them are young and still getting their training, but their enthusiasm to work under very difficult circumstances, with lots of files and very limited resources humbles me immensely. I think these need to be treasured, recognized and rewarded. I was only able to handle the office because of the support they offered and long may they continue to serve the motherland. These are the unsung heroes and heroines that are holding the public legal fabric together. The challenge, always, is how to retain them and most are lost to industry, and surprisingly, even to parastatals! You cannot force them not to leave as they have the liberty to seek jobs elsewhere, but I believe there is need for co-ordination between Government and parastatals on the issue of poaching lawyers from each other.

Nyasa Times: Any last word?

Kaphale: It was a very rare privilege serving Government at that level on two occasions, but every good thing must eventually come to an end. That office is always in very capable hands, and this time around perhaps even better hands, and that should comfort all of us. Having practiced privately for six months, I am enthralled by the peacefulness of private legal work, where you only have your client to handle and not the whole world. It is another world out here.

That said, I always live on the positive side of things and I am sure that as a nation, we will forge ahead having emerged from a very divisive and fractious phase in our nation- building endeavor.

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