It was chilling, wasn’t it, when it finally sank that Justice Michael Mtambo had found Ralph Kasambara, Pika Manondo and McDonald Kumwembe guilty of conspiracy to murder one Paul Mphwiyo mainly on the basis of call logs and cellphone activity.phonei
In many ways, what Justice Mtambo had done was to ignore an earlier ruling by a higher court—the Supreme Court of Appeal—which had been unequivocalin a different case that call logs cannot be admissible as evidence of what may or may not have been discussed. In their wisdom, the Supreme Court judges envisaged that if such were to be allowed then any person could be convicted of any crime based on the evidence of call logs alone. And that would open a floodgate of convictions of innocent people.
No wonder then, that immediately after Mtambo’s rulinglawyers scrambled to radio stations and newspapers to express their consternation, describing the ruling as ‘strange’ – which is a very polite disagreement any lawyer can give, knowing that they will have to find themselves before the same Judge one day. What that said, though, is that we all ought to be afraid.Very afraid.
And for good reason. For, while it is Kasambara who is at the end of this strange ruling today,there can be not telling who will be at the wrong end of this call-logs barrel, tomorrow.
In this case, a high profile personality had seemingly fallen; it is natural for us, as human beings to base opinions of the situation by focusing on the subject of the ruling rather than the ruling itself. It is easy, for example, for those who have an axe to grind with Kasambara, lawyers and non-lawyers alike, to celebrate his lynching,while those who are indifferent will say that it is Kasambara’s cross to bear and none of their concern. But the effect and implication of this ruling places everyone in danger of being convicted for something they never did, or knew anything about.
As long as this ruling remains, any person using a cellphones must pray, every day, that no one on their call list—especially those they constantly engage with—shouldeverbe accused of committing any criminal offence.
Because should that happen, they too, face the risk of being found guilty of conspiring with those people they were calling. And, no, it does not matter whether they discussing wedding plans for a family member or are engaged in banter over a Manchester United Football Club win: according to Justice Mtambo, calling a person who ends up being accused of a crime makes you party to that offence. Worse still, being in constant touch by cellphone with anyone and then that person happens to have called someone who later on becomes a victim of assault or murder, means that you and the other person were conspiring to commit that crime. Continuing communicating after you hear of the crime only confirms the conspiracy.
Of course, in days past, this amounted to lousy reasoning but today it is law, thanks to that judgment.But it is a frightening judgment, on which we must all be engaged, starting, first and foremost, with lawyers themselves.Precedent elsewhere that shows that when lawyers stand up against an unjust law, the bench listens.
A good example is the case of Pastor Evan Mawarire, the man behind the #ThisFlag campaign that helped mobilise Zimbabweans to protest against President Robert Mugabe’s government these past months. When the state brought charges of treason against him,more than 30 other lawyers showed up at Harare’s Rotten Row Courts in solidarity with the defense, in a bold statement that they would not allow the law to be adulterated.In the end the judge had no choice but to throw out the charges.
Some will say, it will be too much for anyone to expect our Malawian lawyers to borrow a leaf from Zimbabwe and show up in gowns and all at Kasambara’s appeals hearing for the simple reason that Malawians are known for suffering in silence. But, I dare say, that for those who openly came out and protested the ruling on social and mainstream media, their protests will come to naught if they fail to protest this law, in a court of law. And for those who are typical Malawians and prefer to suffer in silence, we pray that they must, at least, lend their expertise to citizens who see this for what it is – an abuse of judicial power that will have far reaching implications for years to come. The Supreme Court moved in once against this kind of abuse and it is time we all did our part– even if we might not like Kasambara.
Until this ruling is quashed, we all are at risk of being locked up for murder and conspiracy just because we called someone who called someone who happened to be assaulted. That, there, is the frightening part.