When the case of the removal of George Chaponda from cabinet by court order came before Justice Dunstain Mwaungulu for appeal, the Judge did what he is known for – rule, without blinking, according to what he believes to be the Mwaungulu legal truth. You see there is truth and there is legal truth and then there is Mwaungulu. Truth is just that – something we have come to accept as right and proper, not based on logic but, rather, based on norms that we have come to accept as such just because that is how things have been.
Legal truth is backed by legal fact, Mwaungulu legal truth is legal truth that also happens to be logical or legal truth that makes sense. Unfortunately, law and logic do not always go together. The audacity of this judge to speak his legal truth even, (actually, mostly) in the face of powerful forces, dates back to the early days of Malawi democracy.
Deprived of opportunities to rule on cases as he was studying for his masters degree, abroad, the judge took to Nyasanet where he was spending his time sparring with colleagues on legal issues most of which centred on the newly adopted Malawi constitution. As usual, he freely spoke his, actually too freely for the liking of the Muluzi administration. They marked him. Later, the judge came and did a Mwaungulu on a case that was brought before him regarding the status of whether a sitting MP can also be a cabinet minister. Mwaungulu ruled that once an MP is appointed to cabinet, he ceases to be an MP. I cannot recall the logical persuasion he posited in that ruling but suffice it to say that it made a lot of sense.
The Muluzi administration was not amused at all. The ruling was eventually overturned by a higher court, but around that same time, the Muluzi Administration decided to impeach Mwaungulu from the bench – first and only time, I have heard about anything like that. The only mistake they made was that they picked on a wrong judge. Being one not to go quietly into the night, Mwaungulu did he not flinch. Instead, he stood his ground, fought back and won. And such has been his story, continually and constantly showing courage to not only take on touchy cases but also to rule, at will, against the establishment without butting an eye.
Earlier, during the transition period from one party to multiparty rule, the Judge also did a Mwaungulu on the Malawi Congress Party (which I believe was still in power, at that time). Ruling on a Machipisa Munthali’s 27 years imprisonment on political grounds, the Judge found in favour of Munthali and proceeded to award him millions of Kwachas in compensation. That did not sit well with the MCP. They chastised Mwaungulu in the Malawi News where Zebedee argued that the only reason Mwaungulu ruled in favour of Machipisa was because he was a fellow Northerner.
Zebedee went on to accuse the courts of being full of judges from the North (he did not mention that they were appointed by the same MCP governemt.) Mwaungulu sued the Malawi news and won – again. And then came the case of Chaponda. The logic about the case was that elected authorities govern by the trust of the people and by inference so do the people that they appoint.
And so when public trust is lost on the elected or their appointees, they no longer have the authority to govern and must be made to cease and desist doing so by any legal means necessary. That was what the court in Mzuzu had ordered and when the case came before Mwaungulu for appeal, the expected no less (where the people refers to the public and not the Republic and hence excludes rank and file of the ruling party, as they are now part the governing elected). It was a done deal for the people. Or was it? Not according to Mwaungulu. He stunned the nation by ruling in favour of Chaponda and went further to call out the lower court, accusing them of flouting procedures, overstepping their boundaries and then, some. The public was stunned – it had forgotten that there is a difference between people’s truth and Mwaungulu legal truth. For him, it is not just about law, or logic. It is about the two coming together – in agreement.
But what was more interesting about the case was the fact that Mwaungulu managed to hear the appeal and deliver a judgement within three days! And so when the case of Ralphael Kasambara came before this judge and the Director of Public Prosecution (DPP) sparred with him, demanding that he recuses himself because of – once again – his online behaviour of speaking his legal truth on touchy issues, everyone expected him to do a Mwaungulu – find a place where legal truth and logic agree. He gave the DPP 14 days to come up with their arguments and, with bated breath, the country waited for the specular. Well, he did not disappoint. He has come up with a spectacular of speculars: for the first time, the judge who speaks his mind, at will, has had nothing to say about a simple yes or no. Mwaungulu, speechless? What are the chances of that ever happening? But it has happened. A judge who ruled on Chaponda within 3 days of receiving the file has, today, spent 3 months and 3 weeks without knowing what to say about whether to recuse himself from the case or not. Spectacular, indeed!
This judge does not take 3 months to think and speak his mind on any issue close to his heart or profession, be it one in the courts or just online legal banter. He will always speak his mind and he does not apologise for it! He does it on the fly, shooting from the hip, so to speak. And he is never scared of any case. So why the change? Honestly, I do not know. So, allow me to speculate here.
I think we should all be fair and remember that he is not as agile and combative as he used to be. He is well above 50 and most people tend to slow down and become more conscious of their future and that of their families as they grow older. What makes me say that? Well, for those who may not know, during the time of his fiery, combative, youthful self, the judge broke family tradition, leaving the Catholic Church to join the Pentecostal movement where he has been a committed member for several years.
Well, you may wish to know that just recently, he has made a u-turn and returned to Ekelesia Katolika. And these are like polar opposites of the Christian faith – Catholic and Pentecostal. Say what you may, my take is that something is definitely going on in the conscious department of this Judge. From where I am standing, we may as well be witnessing the metamorphosis of Justice Mwaungulu. Personally, will miss Justice Mwaungulu, the one of the Mwaungulu legal truth.Follow and Subscribe Nyasa TV :