“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” – Lord Chief Justice Hewart: R v Sussex Justices, ex-parte MacCarthy, 1924
The legal profession has always been held in awe and esteem but somehow it has also universally been tainted with sordid and underhand activities. Perhaps this is due to the flexibility that its members have to choose one of dual capacities either as prosecuting or defence attorneys under the noble assumption that everyone is presumed innocent until proven otherwise.This is done in the interest of justice and the right to fair trial.
However, in the process, matters of conscience and ethics are sacrificed in the supposed pursuit of facts, fairness and, invariably, money; after all, a lawyers fame and fortunes are inextricably bound to his reputation in winning cases and not necessarily in just giving good legal advice. (Wouldn’t it be nice to sue a legal practitioner for giving wrong advice?!).
The desire to win cases and make money at any cost can motivate unethical,illegal and criminal conduct and this is being manifested in Malawi today.In addition, greed – one of the seven deadly sins – seems to have taken root across the board with numerous allegations of wrong-doing amongst our legal minds, both in the Judiciary and amongst private practising lawyers.
Whilst not wanting to deny anyone their right to work and earn a living, I take the view that all professionals must be guided by a set of acceptable rules and an upright moral code of conduct that preserves the integrity of their profession. Sadly, it would appear that this aspect is lost on the legal fraternity, whose members now regularly seem to be in the limelight for all the wrong reasons.
Unfortunately, the Malawi Law Society, MLS, seems impotent as a self-regulatory institution to discipline its members and maintain its respect and public trust. In fact, the general feeling is that, on the contrary, the body has been so compromised that it is seen to shield and condone the disreputable behavior and dubious antics of its members, hiding behind technicalities of the law and deliberate legalese to blindfold an unsuspecting public to the misdeeds and inappropriate actions of incompetent, dishonest and scandalous lawyers.
What hope do we, as a nation, if those who are charged with ensuring fairness and justice become alleged accomplices, perpetrators and instruments of deceit, fraud, corruption and crime? More so, when the celebrated ones amongst the clan are suspected of high-level chicanery and a total lack of ethical behavior? Surely, what this points to is the death of moral values at the altar of mammon. And this is compounded by an emergent compromised political elite that has nurtured a culture of impunity and failed to establish the requisite moral high-ground to act as a beacon of hope for us to advance a transparent civilized society based on law and order.
How unfortunate that the miscreant behaviour of some of our lawyers is being exposed when we have our first-ever president with a legal background, an accomplished and globally respected legal academic!One would expect a harsh tongue-lashing at his brethren in an effort to salvage the dignity and respect that the profession once enjoyed. More so, when a senior lawyer that has just been recently appointed to a high office embarrasses his whole government by getting arrested by the ACB on suspicion of tampering with witnesses in the on-going infamous, highly symbolic “CashGate Trials” that can make or break our immediate future as a nation.
And also, when people are questioning untenable positions by senior government officers who may not be in a position to exercise independence and objectivity as they are, effectively, simultaneously acting as both prosecutors and defence attorneys in some of the trials. And also, how is a suspect allowed to act as a legal representative for other suspects in related CashGate cases?Intuitively, there is something wrong here and no amount of explanations can convince me, or the general public, otherwise.
Government, NGOs, civil society, the MLS, and perhaps indeed regional and international legal institutions, need to look into these issues if we are serious about the course of this country.Just like in CashGate, there should be no sacred cows in cleaning up the soiled image of the Judiciary and the legal profession. As an aside, despite the commendable efforts by the current administration to attract investment to Malawi, no sane foreign investor will feel safe to invest in a country where the legal system and its professionals are suspect.
The unraveling stories of decadence amongst our lawyers comes at a fragile time when the Malawian people have virtually lost trust in government and the suspect political class; when the legislative arm of government has proved to be a useless appendage for checking executive abuse of power and failed to ensure greater transparency and accountability on behalf of the people.
Whilst practicing lawyers may not necessarily be in the Judiciary as the third arm of government, judges are glorified lawyers who have been given the noble responsibility of interpreting the law and passing judgement, ostensibly without fear or favour. Therefore, if its members and those of the legal fraternity of which they are a part, are embroiled in shady dealings, unsavoury acts and behavior, it only follows that the whole Judiciary itself will be held in suspicion.
And reported media revelations of dubious prosecutorial arguments, judge-shopping, questionable judgements and sentences, abuse of client trust accounts, conflicts of interest and corruption are feeding a frenzy of public speculation as to the honour and integrity of our learned men and women blessed (cursed?) with letters of the law. We are creating fertile ground for a total breakdown of trust in the whole government machinery, which could have disastrous consequences if not timely checked.
Coupled with the lack of closure on the fractious May 2014 elections, a deteriorating economic scenario with a people faced with an ever-escalating cost of living and the apparent polarization of our sadly beautiful nation along regional, tribal and ethnic lines,a lack of trust in the Judiciary and lawyers simply adds salt to the wounds of an injured, angry, suffering people.People are now cynically referring to the Ministry of Injustice and the machinations of the ‘illegal’profession!
Government, together with MLS,would be well-advised to grab the bull by its horns and deal with the cancer that has brought the legal profession into disrepute. Rogue lawyers and a cavalier attitude amongst the legal fraternity have become a big disgrace to this nation!
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(Chikavu Nyirenda is a Senior Lecturer in Banking and Finance at The Catholic University of Malawi and contributes, in his own capacity,a weekly Monday column, ‘Views from the Sunset,’published in The Daily Times. This article appeared in this week’s edition on 20 October, 2014).