LILONGWE (Wise One from the East) – As expected, Raphael Kasambara has left no-one in doubt.
He will appeal against his conviction by the High Court in the case where he, and two others, were being tried for conspiring to commit murder and for their trouble in actually attempting to send Paul Mphwiyo to his maker earlier than scheduled.
That is well within Raph’s rights. Ooops! I am sorry, this did not come out right.
I will appeal right away and with your leave, beg to rephrase it: appealing against this conviction, and not conspiring and attempting to summarily despatch Mphwiyo to his maker ahead of his time, is what Raph is legally entitled to, like anyone sailing in Raph’s rocky boat over rough waters would be.
So many things have been said since the judgement, and as many analyses have been offered about the case and the judgement; that one cannot write without risking sounding redundant.
But knowing Raphael Kasambara, after reading most if not all the analyses, opinions and counter-opinions on his misfortune, this phase of the drama will remain incomplete if I do not weigh in.
And since this is the least I can do for this eminent Facebook friend of mine, and indeed for you, here I am.
First and foremost, I want to commend Justice Michael Mtambo for holding his nerve throughout this trying trial of Raphael Kasambara and his Associates.
I know a whole flock of judges who would have chickened out, sought and found flimsy grounds to recuse themselves on one pretext or another.
Justice Mtambo didn’t.
I am taking personal pride in this because this Judge is someone who taught me the little I know about the Law, and seeing him actually walking his talk is very satisfying.
Kudos your honor!
This however does not imply that like the learned Judge, I am convinced that the State presented a compelling enough case proving Raph and his Associates guilty beyond reasonable doubt.
I, for one, have lingering doubts and if anything, this case has left me with a lot of unanswered questions.
First, I have this overwhelming feeling that someone who ought to have been tried alongside these three brand new convicts, or even an entirely different set of conspirators, were missing in the proceedings. Hence, the State building its case largely on circumstantial evidence to try and net this trio.
Many times during the examination and cross-examinations, I was getting the feeling that there was a missing actor. A big one too for that matter.
Secondly, I have a premonition that, like in the so called cash-gate trials, not everything that should have come out has actually come out into the light.
But having said that, I cannot blame the judge for the missing pieces of the jigsaw. If anything, these gaps plus the many lies must have made his job even tougher, therefore more kudos to him!
Thirdly, coming to the testimony, many witnesses left a lot to be desired and I will leave this at that.
Where I have questions for my former Law teacher is the way he applied call logs.
In one sentence he berated call logs, only to turn around and then base the gist of his conclusion on the same call logs he had earlier said were bullshit.
To me, it didn’t sound right at all. It’s as if two different people, had written two different pieces of the judgement, and their views on call logs’ admissibility and weight as solid evidence in a court of law are incongruent.
Weird, isn’t it?
I wonder what the take of members of the legal fraternity is on the learned judge’s inconsistency vis-a-vis call logs and other precedents, and the weight call logs carry as evidence in a court of law.
But all this, I will leave to the Justices of Appeal and law scholars.
For the record, I do work pro bono on a lot of things, but I would never ever dream of working, in or outside court, for Raphael Kasambara – for free – by gifting him grounds of appeal.
He made his bed, now he must either lay on it, or win the appeal.
And believe it or not, all the above was just what Justice Mtambo, in class, used to call obiter dicta. The substance of this article, in legal jargon, the res sua begins now.
I had a friend who learnt one thing – among the many – from his old folks that he never hesitated to share.
The lesson of life that this friend of mine cherished goes both ways, whether you are a parent or a protégé under parental or other such care.
The lesson is that: when parents spare a can on a spoilt child, they do that child a grave injustice. This, I must admit, sounds common place until you hear the next bit.
According to my pal’s folks, a child who has not been punished for misdeeds by over-indulgent parents, ends up getting punished by the State; and unlike parents, when the State metes out punishment, it shows no iota of compassion.
The State shows no mercy and fairness rarely forms part of the process because there is no such a thing as a ‘Court of Justice’.
The State uses ‘Courts of Law’ where the law – interpreted by human beings prone to error – rules.
This seems to resonate well with Monsieur Raphael Kasambara’s current predicament, irregardless of whether the Supreme Court will later overturn his conviction or not.
To give you an insight on the torture Raph is going through, let me tell you something. In Malawi, there are two groups of people who fear jail the most.
The first are Malawians of Asian origin (amwenye in Chichewa). Believe you me, mentioning jail or a jail sentence to a law breaking Malawian of Asian origin does wonders.
Casually talk of jail the next time, with all due respect, ‘mmwenye’ tries to bribe you, and he will be all repentant, and if possible, he will kneel on all fours begging for forgiveness.
They fear jail that much.
Hot on the heels of this group, and this may come as a surprise, are lawyers.
Yes. Lawyers, these guys who walk about with wigs, and all dressed up, carrying heavy looking books or pulling formidable briefcases behind them.
Although these people frequent prisons, each time they dream they are in jail serving a prison sentence; having been – in a particularly horrible nightmare – convicted of some crime or other; they wake up, fervently pray and repent to the Almighty for each and every sin, real or imaginary, they may have committed. Kuti chikho cha ndende chiwapitilire.
To put it bluntly: the thought of serving time in jail sends shivers down lawyers’ spines.
Come to think of it, had it not been that prisons often host their most desperate clients, convincing a lawyer to visit or hang around a prison would have been just as difficult as persuading a straight man to engage in gay sex and vice versa.
Lawyers’ disgust for life in prison is that bad.
Now, Raphael Kasambara is not only a lawyer but one who has defended hundreds of criminals. He knows prison conditions. He knows that a stay in prison is, literally, a journey to and through hell.
Therefore, his prison-phobia is probably higher than that of the average lawyer.
But today, there he is, waiting to be told how long prison will be his home.
Waiting to hear from the same Judge he has come to dislike, how many Christmases, birthdays and new years he will spend without family, behind bars.
Can you imagine his anguish?
Now you are wondering, where is all this gloomy talk of prison leading to? I am coming to that, i.e. the lessons galore part.
Of late, in our lovely Malawi, it has become cool, fashionable or even profitable to break laws with impunity.
We have seen police officers beating up people, the latest was one idiot slapping innocent looking female students at the recent Chanco fracas. The video clip has gone viral on social media.
We have seen agents of the ruling party petrol-bombing offices, houses, MEC warehouses and of late vehicles.
We are witnessing misguided people killing or maiming people with albinism.
Corruption, at all levels, has evolved into a religion complete with a high priest and/or priestess we periodically enthrone at the State House and go on to enthral their ‘commitment’ to fighting grand corruption even when they are the principal defenders of those milking our country dry.
We have late Issa Njauju’s and Robert Chasowa’s killers roaming free, probably planning their next brutal murder, and hating – with all their wicked might – the turn that this article has suddenly taken.
I could go on and on.
Raphael Kasambara, a couple of years ago, never ever dreamt that one day he would be a convict.
But since this world is round, the former Minister of Justice cum Attorney General, and arguably Malawi’s most brilliant lawyer, is now incarcerated.
Now, if a green tree is this high on flames of fire, what will happen to dry trees i.e. mere call boys and agents of the powers that be?
It is therefore with a lot of compassion that I urge the gullible among us, to learn from Raphael Kasambara’s turn of fortunes, that the arm and seasons of the law are not only long and winding, but unpredictable.
On a lighter note, with Raphael Kasambara’s conviction, our vernaculars have now been enriched with a few more adages.
I can offer: “Lamulo siliwopa shasha!” i.e. the Law respects no guru, to put it in the Queen’s language.
Ku Boma, in Mzimba, we will now be teaching errant youth that: “Imwe, mdauko ukumanya shasha yayi!”
If they are still adamant: “Do you remember Dada Raph? Dango la Boma lilije ntchindi kwa munthu kuti uyu ni mlara panyake ninkhwantha!”
And for emphasis add: “Mdauko ukupeleka nchindi kwa Bapapi na nkhwantha yayi!”
The curtain is up on “guns, smoke and screens” part one, and victory – temporary or otherwise – has gone to the State. Congratulations to Team Prosecution!
Ladies and Gentlemen, at all costs, let us strive to be law abiding citizens, or get ready to follow suit.
I rest my case.