“Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.” – Fredrick Douglas.
Everywhere we look and anytime we check, there is a grip of corruption.
Of late we have been witnessing so much disgraceful and discreditable acts by people who were supposed to be otherwise respectables.
Imagine barely in just a space of a week and few days, we have two closest aides to the president, a cabinet minister and a political party president arrested on suspicion for being involved in some criminal activities.
Almost every sector of our government is somehow being managed by dishonest individuals and is tainted by fraudulent conduct mainly by those in power.
Sadly, it feels like the whole nation has turned into a whole crime scene.
Unfortunately most of the times when we hear of corruption, we quickly jump to think of politicians.
The truth is that politicians are not alone, they are simply aided by corrupt civil servants and weaker systems.
Ending corruption has to start from the core of our system. We need to cut the supply to the root that is feeding this rot in the system.
And that has to start with the way our justice system operates. We need to review how things are processed from inception of a case, through trial, to punishment and reparations.
What the judicial practices have revealed is that if we don’t make ending corruption a developmental imperative, the immeasurable consequences that we will all suffer on inclusive development will be too much to contain.
Our justice system should not be the one that seeks to negligibly compensate the voiceless and marginalized while those who are connected and the elites continue to cash in.
It’s clear that the system as it is, toxically functions to conceal conflicts of interest and help the connected to illicit gains in a very unfair manner.
If you pay attention to the way the courts have awarded lawyers hefty amounts of cash in form of costs, one wonders if this is not an operation of an illegal legal cartel.
Our system is operated on a legal framework that is allowing illegal compensations to undeserving people while those who are deserving such substantial damages in recompenses are left with peanuts or nothing.
For example let’s look at the case at hand; the Nsundwe women rape saga.
Before I proceed, allow me to be careful not to reduce this into a mere disparagement against our learned sisters who took up this case on behalf of the victims. That is neither here nor there.
I don’t want to join those who incline easily in becoming sort of mocking bullies on social media without any justification, that’s not the argument behind my reasoning.
Not at all.
I have written this for one reason only, and that is to say that ending corruption will not be as simple as we think until we make it a developmental imperative.
These are reportedly victims of a crime that is alleged to have taken place in a cold blooded manner. If true, such a sadistic and ferocious cruelty dealt and left deep wounds that will not heal easily in most of these women.
Of course, I have some reservations on the whole saga but is a story of another day in another argument.
The alleged brutal rape they supposedly suffered in the hands of police during that fateful day, was not just a one time ordeal.
Typical of those who carry trauma, this will continue replaying in their heads and surely most of them will have to struggle and continue dealing with its aftershocks for so long.
So when we were told that these women had solicited legal representation from fellow women, we were all excited.
Knowing that it sometimes takes a woman to fully understand another woman, there was a consolation in that expectation that probably these women would not be short changed in any way as it is usually the case with how most men run things.
The barriers, pain and struggles that women face are generally universal, therefore the fight for one woman is regarded as a fight for all.
Of course, I have more questions than answers. Someone of which are; who are the suspects in this case? What are the names of the rapists? Any medical reports to prove the rape?
But as I said, this is neither here nor there.
What really was impressive about this was the fact that those who had pledged to take the case had pledged to do it “pro bono,” meaning that the work was going to be undertaken without charge.
Pro bono publico, in Latin simply means “for the public good” in other words the public in general or the the less privileged should be the beneficiaries of such services.
From my understanding the victims retained the services of the said lawyers in their litigation of the case on assumption and assurance that even if they lost they didn’t have to foot any bill.
In other words there were no risks and expected outlaying of any expenses on the part of victims.
And this is where it gets complicated, the costs awarded by the courts can only go where the expense was suffered. In a case like this where the victims were only party to the case and didn’t suffer any, how do we make sure that there is enough justice?
Sounds ridiculous yes, but that’s how it is done.
However there was another part that was either intentionally left out or not made known to most of us especially the victims, and that was the other possible outcome where the court would award costs at the end.
It was not made clear that the pro bono arrangement would end as soon as the courts awarded costs. They made it so unobtrusive in a way that it could not attract our attention.
They dealt off the bottom of the deck just like banks would screw us up with inscrutable terms of the credit card agreements which are usually loaded with hidden tricks aimed at cleaning out your wallet faster than you can imagine.
Of course they were within their rights as they simply took a business risk.
If the court had decided the other way round, it’s the lawyers who could have been forced to shoulder the burden.
In my view, it could have made more sense if the lawyers had communicated that arrangement earlier than the way they disguised it.
The careful and intentional circumspect, and this level of discreetness in the lawyers actions speaks volumes of something that is not morally normal and acceptable.
It leaves room for speculation and caused many to start guessing if their gesture to represent the victims was done purely in good faith, or maybe there were some hidden intentions aided by an inside trading advantage?
Now that there are reports from a report that the whole Nsundwe rape saga is a nothing but a sham and that it was all staged up, I am lost at a crossroads. With four roads in front of me I don’t know which road to take.
I just pray that the truth will come out some day soon.
This takes us to questioning the whole rationale behind the court’s decision to isolate certain premises in their determination of awarding of costs.
The fact that it’s in their discretion to determine appropriately whom to award and how much they can get, the judge in my view failed to be more considerate, fair and balanced.
I know pain cannot be quantified but surely it can be considered as damages and loss. What about the trauma and the horror that these women will be forced to carry if it really happened?
There was risk of HIV and unwanted pregnancies and many more horrifying issues that we don’t usually speak about.
Malawians were willing to shoulder the tab wholeheartedly if it meant consoling the victims of such heinous crime. That is if it really happened.
The court had a discretionary ability to guide the law and fairness in upholding justice.
In a case like this the power of the courts to act according to the dictates of their own judgment and conscience should have been taken more serious.
We had similar outrage with the awarding of costs after 2020 constitutional court case which the winning team was awarded heavily and unrealistically even though by law it was justified.
However this one took a unique twist because to my understanding the team of lawyers was already compensated and were being funded by an international organization.
So their claiming of damages and the decision to slap Malawians with a tab was in fact a day time robbery.
This is another example of how even those who are supposed to be guiding the law could be corrupt as well.
And then, there is a Sumbuleta case. This one too is confusing me, too.
I have learn’t that MBC has agreed to pay the Sumbuleta victims K50 million as an out-of-court settlement through the same Women Lawyers Association who have also been awarded K2 million. Fair enough.
However, Sumbuleta who is in court for the same case is denying any wrongdoing and that means that the case will now go on a full trial for the court to determine whether or not Sumbuleta is guilty or not based on the available evidence.
I do understand that MBC is liable for a vicarious liability as an employer but what I don’t understand is why has MBC rushed to pay out the victims and re-employ some back to work.
Why is MBC pleading guilty when the suspect Sumbuleta is denying criminal liability?
What would happen if Sumbuleta is acquitted by the Court? What will happen to the out-of-court settlement?
As much as I hate to say it, Sumbuleta like any crime suspect is innocent until proven guilty by a competent court of law. This is a legal principle and not my opinion.
With this, shouldn’t MBC wait until the court decides on the matter before making any commitment of any kind.
We should have a way out of this mess. The burden on Malawians to shoulder these bills is becoming unbearable.
As am closing, I would like to suggest the following;
We need to have a national Compensations board that can review, handle and suggest to the court how compensations in cases of national interest should be handled.
Section 41 of the Republican Constitution clearly establishes that every Malawian has a right to a fair trial, therefore the office of the Director of Public Prosecutions (DPP) should have a separate civil rights and human rights division, which can facilitate independent advocacy for vulnerable Malawians.
The poor need to have a language and advocacy.
Cases of this magnitude are supposed to be championed by government not only outside groups – We need automatic referrals to ACB on such cases so that justice is not stifled by corruption.
As a people we shouldn’t pride ourselves with such a sad milestone where we are not only failing to compensate those that are voiceless and marginalized but we are also failing to bring to justice those perpetrators of evil amongst us.
By failing to arrest those policemen who allegedly raped the purported victimised women, and by shying from punishing the culprits, we have failed to set a national example and we all have become complicit and accomplices to evil.
Finally, let us handle cases based on material facts and not on political or emotional trends and taglines.
We all have, and continue to, aid and abet in creating a crime scene that is Malawi.
Let me bow out with some of words of wisdom from Aleksandr Solzhenitsyn who authoritatively said:
“Justice is conscience, not a personal conscience but the conscience of the whole of humanity. Those who clearly recognize the voice of their own conscience usually recognize also the voice of justice.”
Let justice, not emotions, prevail.
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