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Uncommon Sense:Of an Attorney General in need of a General Attorney

Malawi Attorney General (AG) Kalekeni Kaphale

The inevitable conclusion that Kalekeni Kaphale, the Attorney General (AG) of Malawi, is himself in need of an attorney comes after studying his recent inexplicable activities.

They reveal that for all rights, the man has taken leave of his moral campus and sadly his legal ethics, too.

In Malawi the AG is appointed by the President. His function is expressly stipulated in the Constitution as the principal legal advisor to the Government.

According to the Constitution, the AG must be fired by the President where he is found to be incompetent, incapacitated or compromised in the exercise of his [or her] duties to the extent that his [or her] ability to give impartial legal advice is seriously in question.

A sane and discerning AG would be expected to know he has a Constitutional duty to be impartial in the discharge of his duty, failing which he should be dismissed.

Recent events demonstrate clearly that Kalekeni Kaphale has been reduced to a political agent maintained to serve the interests of the DDP Party and to ensure that their President, Peter Mutharika, remains in power.

During the hearing of the elections case the AG passionately asserted in court that the elections were free and fair and that Mutharika was lawfully elected. Several times his colleagues criticized his role and his decision to appear in the matter.

The Judges that presided over the case similarly did not approve.In expressing their strong reservations, they ordered that the AG should not appear before the Court in the matter.

Shockingly, the overzealous and now totally misguided AG proceeded to assist his fellow incompetent Electoral Commissioners in illegally procuring the lawyers from South Africa to appear on his behalf at the enormous and exorbitant cost of US$800,000, a bill footed by taxpayers! Such have been the levels of desperation to ensure that his President remains in power. His actions even prompted the Ombudsman to lodge an investigation into his conduct.

The Malawi Supreme Court of Appeal (SCA)then delivered its judgment in the same elections case.

Turning down the appeal by MEC and Mutharika, the court severely criticized the conduct of the Attorney General.

The SCA referred to the office of the AG as the Custodian of the Constitution and an office that ought to uphold Constitutionalism and the rule of law at all times. By operation of the law, the AG’s role should have been to assist the Court to resolve constitutional issues before it, not taking sides.

The court was  dismayed by the AG’s reprehensible conduct and wondered why he chose to take on a role that was clearly biased and unprofessional.

The SCA declared, “…it is also regrettable that the Attorney General continued to represent the second Appellant after the consolidated petitions had been certified and became constitutional referral. At that point the Attorney General was clearly compromised when he conducted the defense case as opposed to advising the court on matters of law as Custodian of the Constitution. We note with regret that the record is littered with instances of evidence that the Attorney General was conflicted and compromised.”

The SCA further noted later in the judgment that regrettably as a consequence of the AG’s compromised position, he proceeded to dominate the court proceedings and even ended up defending both Malawi Electoral Commission and Arthur Peter Mutharika (APM)! Any lawyer would be alarmed by such an admonition from the Supreme Court- let alone an Attorney General.

As a matter of fact, this judgement alone presents enough and clear grounds for the AG to be dismissed under the Constitution.That Peter Mutharika has decided not to take such punitive action is as against law as it is unsurprising. Mutharika did exactly the same for Jane Ansah whom he arrogantly maintained in her position until it was convenient to him for her to resign. That is, towards the elections and when any delay in appointing her replacement could arguably be justified by the late resignation.

APM/DPP will clearly jump at any opportunity for delays for the elections to take place and will protect anyone that furthers that cause at all cost.

It is therefore no wonder that he has maintained such a compromised and incompetent AG in his position.

It seems to me that the AG thinks his job is to defend the President and the DPP against Parliament, the Judiciary and the operation of the democratic processes in Malawi if those processes do not advance the objective of keeping Mutharika in power. If you need further evidence of this, just look at the recent letter from him to the Legal Affairs Committee of parliament.

When the Chairperson of MEC issued a statement to the effect that the elections would take place on 2nd July, 2020, the AG, as their so-called lawyer, did not at any point advise them that they had no power to set the date down for the elections to take place. Instead he waited until this week to pen a letter to the Legal Affairs Committee of the National Assembly advising them that they had no power to set down the date for elections and that this had to be done by the National Assembly.

Granted that the Legal Affairs Committee has no powers to act on behalf of the National Assembly unless certain delegable powers have been delegated to them to do so.

However, one cannot help but be suspicious with the actions of this way ward AG who has been publicly declared by the SCA as incompetent and compromised DPP cadet.

Why did he wait this long to issue this advice.Has he only now become aware of the relevant legal provisions? Why did he not advise his appointing authority, President Mutharika, to allow Parliament to sit and decide on the issue?

Even then, from the conduct of the AG and Mutharika so far, their blatant disregard of the rule of law and apparent reluctance for the elections to take place, it is likely that even if Parliament were to deliberate over the issue and a decision was made in favor of the same date of elections, they would use various delaying tactics such as refusing to assent to any decision as he did before thereby causing further delays.

As the Principal Legal Advisor and Head of the Bar in Malawi, it is beyond disappointing to see the AG fighting against the other two arms of the Government, both the Judiciary and Parliament and siding with the head of the Executive instead of providing constructive legal advice and assistance that would allow the judgment to be implemented and for the will of the people of Malawi in choosing their leader to be realized.

Instead he is at the forefront of all efforts to frustrate our democracy. What a low-down dirty shame!

It takes me back to the dangers of the governance gap we have in this country, which I have spoken about on numerous occasions.

We run a shambolic democracy in allowing an individual to continue to operate as the President and make key decisions when it is clear that he no longer has the mandate from the people of Malawi.

This is also the danger of making such key officers accountable to the President and not bodies such as Parliament. The said gap allows the President to use government resources and key officers such as the AG to further his will to remain in power.

If our governance structure in this regard was effectively and correctly in place, the conduct of the AG, especially following the judgment of the SCA, would have resulted in his immediate dismissal or resignation.

It is high time the law in Malawi was reviewed to ensure that compromised and incompetent AGs and Electoral Commissioners are not allowed to continue to operate after such deplorable conduct.

As for this AG, I believe he needs a general attorney as he could be guilty of negligence, neglect of duty, abuse of office, flouting of procurement laws and a whole truckload of other violations.

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Z. Allan Ntata
Z. Allan Ntata
Z Allan Ntata is a Barrister of Middle Temple, Anti-Corruption & Governance specialist and author of Trappings of Power: Political Leadership in Africa. Currently an Independent consultant in Governance and Anti-corruption, Ntata has a diverse background from lecturing in law to acting as legal counsel to the president of Malawi.

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