Law experts censor Malawi’s Attorney General Kaphale on media quotes

April 21, 2020 Watipaso Mzungu -Nyasa Times 76 Comments

Malawi’s former Attorney General (AG) Ralph Kasambara, SC, has censored incumbent government chieg legal advisor Kalekeni Kaphale for taking a political stand in his comment on the injunction Judge Kenyatta Nyirenda granted to the Human Rights Defenders Coalition (HRDC) stopping government from implementing a 21-day lockdown.

Attorney General Kalekeni Kaphale: His statement according to Kasambara demonstrates that constitutional litigation is not only about law, but also politics

Kaphale is quoted that if coronavirus diseases (COVID-19) pandemic accelerated in the seven days given, the nation would know who to blame, which could be construed to refer to Judiciary and HRDC.

But Kasambara, who is also former Minister of Justice and Constitutional Affairs, said Kaphale’s statement demonstrates that constitutional litigation is not only about law, but also politics.

“It involves making political choices at both micro and macro level. And this is not surprising given the political contents of the Constitution itself. Second, human rights issues are not always easy to balance. The right to govern by the politician ends at the gate of individual liberties. In this case, public health measures by government must, in the first place, meet constitutional rule-making procedures and human rights standards,” argues the former AG.

Kasambara argues that if public officials or government agents rush to pass and or implement public measures without following the rule of law all in the name of containing the COVID-19 pandemic, they will have themselves to blame and not the judiciary.

He further schools Kaphale on the role of the judiciary in the administration of justice. Kasambara says the judiciary is merely a neutral referee whose noble duty is to see whether government and/or citizens are complying with or acting in accordance with the agreed upon rules of the game, i.e. the Constitution.

“Malawi is not an exceptional case. Elsewhere, COVID-19 measures are being challenged where there are too intrusive of citizens’ rights. For instance, in Croatia, the Constitutional Court there has held that recent public health measures by the officials were unconstitutional,” he says.

Kasambara warns that unchecked or unbridled exercise of powers by public officials masquerading as exercise of emergency powers to protect lives may actually lead to destruction of many more public lives.

He says this is the point demonstrators were making last Friday when the litigants in this case were in court applying for injunction.

“Indeed if unchecked, these public emergency powers may be the beginning of tyranny. Hence the need to wean any arbitrary wielding of state powers at the earliest opportunity. You recall the wise words of Lord Atkin in Liversidge v Anderson. They still hold truth about 100 years later,” stresses Kasambara.

He says the fight against COVID-19 requires a holistic approach by seeking consultation and participation in rule-making process as a prerequisite to the validity, legitimacy and acceptability of public health measures.

“Parliament need to be summoned as soon as possible. The court already advised on the need to amend or enact new public health legislation that will anchor the sought public health measures. By the way, where are we on this exercise?”

“By the way, the State President is at liberty to summon most former AGs to advise him on appropriate legal measures the State can take to combat Covid 19 as they are Senior Counsel and took an oath to be available for such noble task. So, to my good friend AG, here is the warrant for blame game: blame it on collective wisdom of former AGs and SCs on your next step, but not statements in the media. Wakusina khutu ndi nnasi…Kauzyanga ni fwiti yayi,” concludes Kasambara.

On the other hand, Dean of Law at the Chancellor College , Sunduzwayo Madise, also defends the Judiciary for granting HRDC an injunction, saying the Court was only playing its role as a neutral referee.

Madise says in the case at hand, the court gave the applicants leave to move for judicial review.

“Judicial review is a special type of legal proceeding in which the State calls on one or several of its organs to explain themselves following a complaint by an applicant or applicants in the manner that the organ has exercised its power. The review is therefore of the decision or exercise of power by the state or public organ,” he says.

Follow and Subscribe Nyasa TV :
Follow us in Twitter

76 replies on “Law experts censor Malawi’s Attorney General Kaphale on media quotes”

  6. The headline of the story is misleading. Why Law experts when the one who has commented is only one Lawyer, Kasambara? So, is it Law Experts or Expert?

  7. You are very right DPP is no longer popular. Kasambara has given his free advice to the wise. Iwe Chikoti, being a prisoner does not mean one’s expertise and knowledge is also imprisoned. Remember how the prisoner Sautso provided medicine that healed the king’s only daughter? If you look at Kasambara with eyes of hatred and grudges, then that is your own problem! Someone is trying to help you move forwards but you insist on going backwards, whose problem is that?

  8. I think Malawians need to envoke Mobb Justice on people like Mr Kasambara the same way we do our local petty criminals. He deserves to be treated the same way we do when we catch Masudzgo stealing Dstv Decoders or Irons and Microwaves in our townships. Mobb justice basi, how can the main Cashgate kingpin still be on bail to this day and giving stupid advice and parroting around in forums.

    The Malawi justice system is failing us.

  9. Almost everyone involved in cashgate is either half way through their sentence or done or is now bankrupt and paying penance for their deeds. Except for this Mafia

    Shows you how the Judicial system is broken and protects Tumbuka criminals (yes his Tumbuka judges protect him,wakwithu wakwithu mentality). How this idiot is still on bail all this time is beyond comprehension . He wanted to murder Mphwiyo, he led the cashgate and here we are talking about his advice?? You can’t be serious, the only thing this man needs is either a firing squad, Guillotine, electric chair or simply mob justice( a beating and a tyre around his neck,petrol and a few match sticks)

    Watikwana. Tinatopa kumamva za galu ameneyu.

    1. Is BAKILI MULUZI a TUMBUKA….actually Muluzi’s case is even far much older in court than Kasambalas…….

  11. Bwana Akalankhula zimadziwika kuti walankhula. Mfundotu izi osati mbwererere zachipani ayi .

  14. Ralph Kasambara the convict and murderer who was let out of jail by the useless Tumbuka judges.

  16. Ralph Kasambara the bloody thug who stole public funds and sent killers to shoot Mphwiyo? You are the worst devil – you created constructive resignation for VP Cassim Chilumpha. Not surpised you are now the godfather of the Tumbuka judges messing up our country.

  17. Kaphale is right. The corrupt judiciary is to blame for corona-virus in Malawi because it was judge Kenyatta Nyirenda’s ruling released people who the immigration had put in quarantine. Then he went on to give an injunction on lockdown. Shame on corrupt and incompetent judges.

    1. It was the same judge Kenyata Nyirenda who made a ruling in 2014, midnight kuti pumbwa akhale pa mpando. Koma because now he has ruled against your wish wakhala galu. Agalu ndinuyo, you want everything to be mbali yanu ngakhale mukuona kuti palibe chilungamo.

    2. Justice Nyirenda didn’t release the chinese from quarantine, he restricted the immigration not to send them back to china but to put them in quarantine.

  19. To those for always see thing politically its time you listened to the word of wisdom rather just criticizing anything for the sake of it. What Kasambara SC is sharing is humble piece wisdom that only the wise will appreciate and probably will buy. if you cannot see that wisdom in his comment start researching on yourself to establish who you are.

    Remember “only a fool dies due to luck of wisdom” yet men and women of wisdom are in abundance and provide free advice.

    1. thats what malawi is like. noone convicted therefore noone in the high rankes ever selved jail..noone steps down after public demands,
      all the njauju
      albino cases
      missed,missing billion
      ntabas etc
      noone knows if the cases came to an end or its gonna be our great grand chilrdren who will unearth all these errors in triying to cleanse the curse so they can develop this country.

      I mean just look at what we call a capital city,or our cities, do they really looklike cities if you compare to other cities ,zambia,Tz,Mozambq, let alone South africa!!! have you seen a mare local person once he visit Joni for amonth and come back? the amazing stories of appreciation of how the cities look like?
      Yep, we are behind, so far to development.
      ALL THE MONEY IN THIS COUNTRY IS SPENT ON CORRUPTING LEADERS ,ON ALLOWANCES EISH.
      AMBUYE BWERANI

  22. Kasambara benefited from the corruption of the judiciary, what else do you expect. Kodi isnt he a convicted conspiracy murder convict? mesa when you do the crime you do the time? How come he is out here directing the judiciary? Malawi is a joke

  23. That’s how corrupt judiciary is. How long does it take for a criminal to be on bail and have the right to comment on such serious matters.Thats why some people are saying Tumbuka lawyers are biased and corrupt. I don’t care what you will say in regards to my comments,but the truth here is very clear. Kasambara a convict talking shit and you are quiet. When is he going to Court?

    1. I agree with you. This guy is supposed to be in jail serving his entence for attempted murder and theft. What has gappened to his case. Still on bail . A convicted felony talking like a free man. I had respect for this guy as a lawyer before i heard of his sheningans on cashgate. Now he is awaking a sleeping giant. If i were him i would stop commenting on such matters until he is a free man..

      1. Me thinks Kasambara comments are logical reasoning and can only come from someone who knows what he is talking about regardless of whatever you think. Kaphale’s comments, however, were like those from a cadet.

  24. Kaphale has also succusfully defended Bakili on K1.7billion kwacha corruption case against prominent ACB directors and public prosecutors like Kamudoni Nyasulu, Gustave kaliwo, Alex Nampota, Lucas kondowe etc to the point the current ACB director reyneck matemba has no appetite to recommend prosecution.

  25. In 2005, then attorney general ralhp kasambara issued a directive to suspend MACRA board and suspend all its resolutions respectively. This led to MACRA cancelling operators’ licence awarded to Malawi mobile company. The company sued the Govt and Judge Kapanda ordered Govt to pa Malawi mobile company K100 billion. Kaphale successfully appealed the ruling and the supreme court overturned the K100billion damages. The case ended up in the comesa court where kaphale also succefully defended the Govt and the case was thrown out. So to all kaphale haters, the guy is above your pay grade.

    1. Is Kaphale a lawyer??????? Every case kugwa nayo. Ma cadet kodi munAsowa owapatsa kukhala AG. Kalekeni Kaphwale manyaaaaaaaaaaaaaaakaaaaaaaaaa!!!!!!!!!!

      1. Kaphale is a very good Lawyer. You cant compare ndi mbuzi zinazi. He is only losing cases coz the Judiaciary is corrupt, bias and Anti Govt

  28. Mr Kalekeni Kaphale will be remembered as the weakest Attorney General Malawi ever had. Losing all major cases during his time, the most partisan and clueless man. He tried and failed miserably to defend the weakest leader in the history of Malawi. Law is law. Judges pass judgement based on evidence.

    1. Kaphale is loosing to regionalism not to any major case. Whats the point of appealing to vacate the injunction when even us layman can predict the outcome. The end will justify the means.

    2. kukhala ngatitu siinali njila yake. anangopezekamo mu field yi.
      komaso munthu ukazolowera kumangolandila ma envelope opanda receipt from who,for what to use ot for, nkhani zake zimakhala zimenezi za a kaphale

  30. Do you care for life Ralph? We done with you. Whoever onboards you will just shoot themselves in the foot. The nation has nothing to do with you and your I’ll advice. These are the folks who definitely are intellectually jealousy of Kaphale. Kaphale literally is an intellectual force to reckon with and they will try as much as possible to bring him down.

    2. Mu Nyasalande muli bvuta, uyu munthu wa mada, kaidi wa ku Box 28 Zomba akuti bwanji apo? Wanthu wena akusewedza ndende zawo za mada komanso kashigeti, iwe mu nkhata udya yonse nsima ya magulu atatu ku Kabula, shupiti. Kaidi uyu abwelele ku ndende mwatsanga-tsanga, ndipo lero lomwe. Kuti munthu wa pa limandi amachita phokoso maningi chonchi, kuti? A Kaphale ndi patali, osalimbana naye ayi, wachepa kaba iwe koposa.

  31. How come the convict is still on bail? I recall Ralph Kasambara was sentenced to some years in the cooler? Why is he still around? when will his bail bid be heard anyway? Why is he commenting on legal issues and yet he is a convict? Akamati ku ndende ndi kwa anthu osauka ndi zimenezi? How is Judge Mtambo who incacareted him into jail feel like to see him around in Nyambadwe .

  32. I don’t know where people get the crazy notion that courts are neutral. We must not be afraid to criticise the courts or anybody for that matter as we live in a subjective world. We don’t all see things the same way. Moreover, everyone is political; nothing inherently wrong in that. Its high time we stop labeling people who hold contrary views as political or cadets. Kaphale, Kasambara or Madise are all free to express their opinions. That’s what it means to live in the “free world”.

    2. No body has ever said courts are neutral rather we say courts are “Independent”

  35. That’s the trouble when you’ve got mabulutu ngati kaphale who can not even understand his own profession. No wonder he miserably failed to defend NTCHONA.

  36. Kaphale is just a DPP chola Boy, who in this country doesn’t know this?
    Useless Attorney General.

  39. I thought Kaphale’s attack and remarks on Justice Kenyatta was too simplistic, befitting a Ghetto lawyer. Hopefully he has taken a cue from his colleagues.
    What I concluded from the lifting of the injunction was that government should have thought about interventions before rushing to the lockdown. Hence the 7 days for government to correct the situation. Kenyatta wasn’t against the lockdown.
    That’s how people fail exams.

  40. ITS NOT NEW IN NEW MALAWI FOR A TUMBUKA TO BACK A FELLOW TUMBUKA every body knows that the current situation is the battle between disigrunted TUMBUKAS in malawi using their numbers in judicially and munthalika admininstration which led by a southerner.

    2. Idiot DPP and Lomwe followers. Tumbuka Tumbuka what. Go to he’ll with your Ibu we don’t have a president in Malawi.

      Don’t even date to start tribal war cause we can destroy you within minutes.

  41. kkkkkkkkkkk !!! The convicted criminal, Ralph Kasambara, is trying to make himself relevant to the times.

  42. Wise words from Ralph Kasambara. Friendly word of advice to AG Kaphale – If you can’t stand the heat, get out of the kitchen.

  43. Casambala azingomvetsera wamatope mmanja nsabwe zinamuluma kwambili kundende Munthu yemwe alibe mbiliyabwino paMalawi ndi atumbuka okhao omwe amamutenga kuti ndi munthu

  45. The expert is disbarred from Malawi law society because of his criminal tendencies. nyasatimes better quote poor old kamchezera than quoting a man who is on bail due to friendly judges. all his co-accused are languishing in prison while he is issuing opinions

  47. The criminal Kasambara, one of the prime orchestrators of Cash Gate and siphoning of Government funds meant for the poor needs to sit down. Has he no shame to still be talking after his nasty and evil acts were laid bare for all to see.

    Please don’t shoot Kaphale like you did Mphwiyo. munthu oyipa iwe, kuda ndi Mtima womwe.Infact Kasambara is the poster boy for everything that is wrong with the Malawi Judiciary. It’s poor ethics,nepotism,greed and corruption. He has no moral ground to stand on, let alone be lecturing anyone on ethics and codes of conduct. Chindere chakufikapo

  48. He (Kaphale) can’t accept anything because he, Kaphale just like his boss wants every Malawian to be saying “yes bwana” on every nonsense they dictate to us to do? Fotseki, ndi u cadet wakowooooooooo!

  49. kulemba zonsezi chifukwa cha opinion ya Kasambala against Kaphale just because Kaphale is holding the office which Kasambala once held and is envious.

  50. Musaope, mwaziyamba dala. Mumayesa kuti Kaphale apitanso ku khoti kuti Kenyatta akamuchite demean kachikenanso. Mwauponda. Wanena wanena basi.

Comments are closed.