Into the Coffers 2.0

The State’s case: In the months of June to August, 2013, Maxwell Namata stole the sum of MWK14, 439, 966.50 being the property of the Government of Malawi. Second, during the same period, Maxwell Namata, had in his possession the sum of MWK14, 439, 966.50 when he knew or had reasonable grounds to believe that the said moneys were proceeds of crime. The High Court of Malawi agreed with the State. On 21 January, 2015, Maxwell Namata was convicted of, first, the charge of theft of MWK14, 439, 966. 50 and, second, the charge of money laundering in relation to the said moneys. The High Court sentenced Bambo Namata to three years imprisonment on the charge of theft and five years imprisonment on the charge of money laundering. The sentences were to run consecutively. In total, Bambo Namata was to spend eight years kunzande. It was a moment to savour on the part of the State and all disgusted with the plunder of Government moneys within the prism of the infamous Cashgate scandal.

Bambo Namata was dissatisfied with the judgement of the High Court. He appealed to the Supreme Court of Appeal against both the conviction and sentence. In a judgement dated 12 December, 2016 and delivered on 23 March, 2018, the Supreme Court of Appeal acquitted Bambo Namata of the charge of theft and, consequently, the charge of money laundering fell away. If there was no theft there cannot be anything to launder. In a 56–paged judgement delivered by Justice of Appeal Lovemore Chikopa (with Justices of Appeal Rizine Mzikamanda and Anthony Kamanga concurring), the Supreme Court of Appeal has laid down the law as follows: Criminal law and procedure in Malawi must apply subject to the Constitution of Malawi which the is the supreme law of the land. Second, the prosecution bears, at all times, the burden of proving its case beyond reasonable doubt. It is never for a defendant to prove his or her innocence. Proof beyond reasonable doubt is not about certainty. No. it is about a measure of a high degree of certainty. Third, the exercise of the right to remain silent is not an indication of guilt. Fourth, where a defendant gives evidence, the consideration by a trial court should never be a binary of Truth/Falsity. The consideration must be: ‘Is the defendant’s story true or reasonably true?’ Fifth, a trial court is not an interlocutor in criminal proceedings. They are a referee applying the rules of the game as appropriate. And finally, the Supreme Court of Appeal stated that an appellate court must interfere with a sentence only if it is manifestly excessive, manifestly inadequate or it is wrong at law.

The facts in Bambo Namata’s case are as follows: Two cheques, one for MWK14, 439, 966.50 and another for MWK9, 739, 154.29, were issued by the Government of Malawi (through the Ministry of Tourism) in favour of a company called Cross Marketing. Both cheques were collected by Bambo Namata, handed over to an employee of Cross Marketing, deposited into a bank account held by Cross Marketing, cashed and the khusa was then shared by Bambo Namata and an employee of Cross Marketing.

In the High Court, the State had called a witness – who was a director in the Ministry of Tourism. This witness told the Court that there was no contract between Ministry of Tourism and Cross Marketing for anything. The two cheques were not authorised by any bwana in the Ministry. In essence, the two cheques anabedwa. The High Court, among others, relied on the evidence of this director and proceeded to convict Bambo Namata.

The Supreme Court of Appeal was less than impressed with the evidence of the director from the Ministry of Tourism. The Supreme Court noted that the court record of the trial court does not portray the director as a confident witness who provided definitive evidence as to what happened or did not happen. The Supreme Court disagreed with the High Court that the director’s evidence could then lead to the conclusion that Cross Marketing did not have a claim of right to a cheque from Ministry of Tourism. The Supreme Court noted that while the director referred to a record of all contracts issued by the Ministry of Tourism, this record was in fact never produced in court. Zinachitika za m’maluwa; no umboni; no evidence.

There are a number of lessons to be taken home from the judgement of the Supreme Court pa m’ndandu wa Bambo Namata. I will share two here: First, the Supreme Court has said – emphatically if I may add – that courts should not do the prosecution’s job. Courts should not be interlocutors. One flaw in the Namata case is that there was no evidence before the High Court of ‘fraud’ in the generation of the cheques. The second lesson is that the criminal justice system in Malawi – through public finance management laws – needs to re–think what public moneys is. I belong to the school of thought (as demonstrated in Republic v Caroline Savala) that under Malawi’s public finance management laws, public moneys do not cease to be such simply by the accident of a deposit slip. But this is by way of interpretation. Perhaps the law should say so in clear, unequivocal terms.

So; if the State has not proffered evidence of ‘fraud’ in the generation of cheques, the Cashgate prosecution that has been underway for the last three years or so is at the risk of collapsing.

The Harare Spring?

This motion picture was so action packed it kept the audience in the theatre on the edge of their seats. 5 November, 2017, the then First Lady of the Republic of Zimbabwe, Grace Mugabe rebukes the then Vice President of the Republic of Zimbabwe, Comrade Emmerson Dambudzo Mnangagwa- “Who is Mnangagwa?” She shouted while punching her fist in the air. 6 November, 2017, the then President of the Republic of Zimbabwe, Comrade Robert Gabriel Mugabe, fires VEEP Mnangagwa. 14 November, 2017, General Costantino Chiwenga stages a not–coup ‘coup’. In the theatre, we lose all decorum – nay all protocol – of watching a movie. We murmur amongst ourselves: “What will be the next twist in the plot?!” 18 November, 2017, the povo hit the streets in anti-Mugabe protests. 19 November, 2017, a global audience watches the breaking news of a resignation that never was. Finally, 21 November, 2017, Comrade Bob resigns as President of the Republic of Zimbabwe. The end of an era; 37 years long. Comrade Bob went into office a hero – folks dancing to Bob Marley’s ‘Zimbabwe’ on 18 April, 1980. On 21 November, 2017, Comrade Bob went back to ‘Blue Roof’ a villain with folks singing Jah Prezzah’s ‘Mudala Chauya’. And on 24 November, 2017, Comrade Emmerson was inaugurated as the new President of the Republic of Zimbabwe.

What went wrong? It is a problem that is pervasive in Africa. There is a sense of entitlement that endures among those who deem themselves to have been at the front line of an independence struggle; a war liberation struggle; or indeed a popular revolt. In African polities, the twin towers of economic underdevelopment and poverty fan the ambitions of a beneficent dictator. He – they have been “He’s” in Africa – behaves as a Philosopher-King. You cross his path at your peril. This is the influenza that knocked down Comrade Bob – and I must say others on the African continent. African polities have suffered from lack of credible and effective institutions of governance. We have been hypnotized in believing in the “imperial” presidency.

We have come a long way. In Malawi, for example, Under Malawi’s Republican Constitution of 1966, the Presidency was the constitution unto itself. Section 9 of the 1966 Constitution provided that ‘Dr. Hastings Kamuzu Banda shall be the Life President of the Republic of Malawi’. Life President Banda had extensive power under the body of laws in the country: the power to hire and fire; emergency constitutional powers; so–called public security powers; and even the power to declare citizens of the country persona non grata. Hence, for three decades, between 1964 and 1994, Malawi under Banda was a nation under siege. He was Number One Everything.

Even though, the 1994 Constitution is based on a largely liberal democratic order, we have retained a largely powerful Presidency. It is a situation that may haunt Malawians if ever we shall get a Presidency with self–serving monarchical tendencies.

It is well and good to develop robust, high sounding constitutions. It is equally important to build – as I earlier point out – credible and effective institutions of governance. Would Comrade Bob have become the Philosopher-King he became if there were credible and effective institutions on the ground? Would we in Malawi have had an Open Term Bill (Yes; it was an Open Term Bill) presented to Parliament in 2003 if we had credible and effective institutions? Remember khaki envelopes changed hands and the Bill was only defeated by 3 votes. We were that close to degenerating into a second cycle of blatant dictatorship.

In Malawi, we are now moving in a vicious cycle where entrenchment of our democracy through institutions – strong and effective public service, an efficient judiciary and an organized national assembly that provides oversight over the Executive – does not seem to be high on our priorities. The anti-corruption apparatus has been huffing and puffing. There is a lot of flattering to deceive.

I am not sure that I know what it will take us Malawians to be ‘very angry’ against chipwi’kiti in the running of our country. I hasten a suggestion though: The ‘anger’ the Malawians have had against LGBTi rights must be vented for public finance mismanagement, corruption or indeed blatant disregard for clear laws, policies and procedures in the running of the public service widely construed. The mkwiyo must be vented for hegemonic familial relationships, dubious characters in dapper suits and shiny shoes. We risk – ahem – state capture. It should not be taking a not–coup ‘coup’ to sort things out. Institutions must be in place that tell someone when to enter office and when to leave. And many other critical matters in the running of the affairs of the State.

When the governing-proxy do not listen

I prefer to call those that exercise the legal and political authority of the State the governing–proxy. When we refer to public officers as leaders – whether they are technical public officers or political public officers – it creates a delusional sense of superiority that oozes a capture and monopoly to intelligence; know–how. The rest of us do not know anything. After all, we are not the nouveau Maybach–men or Maybach–women.

This sense of entitlement is misplaced. The people of Malawi have always determined which shall be the political party in the majority; which shall be the political party in the minority; and who shall form the Presidency. The act of the people of Malawi at a general election defines the political space. It is their composite consent that legitimates public officers to exercise the legal and political authority of the State.

There is something disheartening that happens to the Presidency and the rest of the Executive when they form government in this country. When our political public officers enter office, they proclaim sound economic management; announce positive inroads in the agricultural sector; and they usually get an excellent score on the ‘democracy barometer’; especially amidst a typical idiosyncrasy of the opposition still reeling from an election loss. Then; slowly but surely, our political public officers develop a certain hot–headness. A hot–headness that says to us: “Go to hell.” This has happened under the three previous Administrations we have had in this country. It is happening now.

If I may be a little nostalgic; in post–Cold War Africa, did we not revel in the promise of more of the Ikem Osidos and less of the Sams depicted in Chinua Achebe’s Anthills of the Savannah? African countries are, in the words of Mwangi Kimenyi, in a ‘poor–governance trap’. What has happened? Beyond the text of the largely, liberal democratic constitutions, it has been business as usual.

What do the people of Malawi want? In light of the Cashgate scandal, Malawians want speedy prosecution of culprits with a follow through of confiscation orders of the property of those who will have been convicted. Malawians want clear evidence of improvement in the provision of essential services. Malawians want more action and less talking. Malawians respect – and will continue to respect – the various ethnic groups that exist in the country. However, it is a no–no when – suddenly – members of a particular ethnic group are seemingly entitled to appointment to public and other offices; and to Government contracts.

Perhaps, we are also not moving as a country thanks to the political network we have. The network is self–reinvigorating. A number of our political public officers in the country are imbricated in the network based on personal connections or social class as opposed to ideology. The absence of ideology has led to the underdevelopment of democratic institutions and to the entrenchment of political patronage. Indeed, politicians have defected, with remarkable ease, from the red shirts of the Malawi Congress Party to the yellow t–shirts of the United Democratic Front to the orange zitenje of the People’s Party and to the blue safari suits of the Democratic Progressive Party and to other colours in between. This has been possible because the principles of a universal, free vote and periodic elections have been absent at intra–political party level in the country.

What the people of Malawi want is very simple. They want drugs in the public hospitals; all weather roads; primary and secondary schools that one can be proud of; public officers who are not merely guardians of rubber stamps as Thabo Mbeki once said. Malawians want to look out to the end of the horizon and quietly smile and say to themselves: “This country is moving forward.”

We sang “Zasintha! Zasintha! There was hope everywhere. We are still hoping. In the words of Achille Mbembe, we have been dancing to songs of repetition and lists; frequent antitheses; the tendency to exaggerate; the common use of hyperbole and expressions that go beyond reality; and preference for imprecise propositions and vague generalizations, complete with constant references to the future. We have been served a “verbal trance”.

When the class of the governing–proxy does not listen, the subaltern speak. On 17 October, 2017, Malawi had by–elections in Nsanje Lalanje constituency, Lilongwe Msozi North constituency, Lilongwe City South East constituency, Ndirande Makata ward, Mtsiliza Ward and Mayani ward. And the subaltern have spoken.

The Maraga Effect

On 1 September, 2017, the Supreme Court of Kenya handed down a judgment that rendered the presidential poll in that country null and void. Under Kenyan electoral law, the electorate goes back to the poll in 60 days’ time – on 17 October, 2017 – to, yet again, elect a State President. The decision of the Supreme Court of Kenya – led by Chief Justice and President of the Court, David Kenani Maraga – has been hailed by commentators as unprecedented on the African continent. I have been made aware of the fact that there are three other instances in recent memory where a presidential poll has been annulled by the courts: Ukraine in 2004, the Maldives in 2014, and Austria in 2016. Otherwise, the annulment of a presidential poll by a court has been unheard of. This demonstrates how tsunami-sque the decision in Kenya is. The decision not only emboldens the independence of the Judiciary but also reinforces the promise of the rule of law globally and, more importantly, on the African continent. Apart from the ‘veiled threat’ from Mweshimiwa Rais Uhuru Kenyatta to ‘deal with’ the judges, the ‘murmurings’ from Kenya are that the decision of the Supreme Court will be respected to the last full stop.

The decision in Kenya has led to parallels being drawn with electoral law frameworks the world over. Indeed, there has been animated debate in Malawi as to what the Malawi courts ought to do if they were faced with a similar scenario to the one in Kenya. I would like us to take several steps back – steps going back some seven years – to appreciate the context of the Maraga Court decision. Kenya adopted a new constitution in 2010. The Kenyan Constitution of 2010 was adopted in the wake of post-election violence in 2007 where some 1,200 people or so lost their lives. The Kenyan Constitution, in relation to election disputes, allows for the determination of election petitions based on irregularity or other matter. The Kenyan Constitution itself spells out – in very clear language – that no President elect can be sworn into office if an election petition has been filed with the Supreme Court (of Kenya) in accordance with Kenyan electoral law. The Kenyan Constitution and electoral law respectively provide further that an election petition regarding a presidential poll shall be filed within seven days from the date of the declaration of a winner of a presidential poll. The Supreme Court shall then hear and determine the election petition within fourteen days from the date of the filing of the election petition with the Court. The decision of the Supreme Court in such matters is final.

Under Malawi’s electoral law, the Electoral Commission must publish in the Gazette and by radio broadcast and in at least one issue of a newspaper in general circulation in Malawi the national result of an election within eight days from the last polling day. The Malawian Constitution states that a President elect shall be sworn into office within thirty days of being elected. The Malawian Constitution or attendant electoral law does not prioritise the determination of election petitions – where they arise – before a President elect can be sworn into office. There is nothing under Malawi law that stops a changu-pamalo swearing into office of a President elect. And true to form, we have had, in this country, three instances of swearing-in ceremonies of a President elect conducted with some remarkable speed.

The Law Commission has just concluded the review of electoral laws in this country. The Commission, among others, considered the ‘immediacy’ and ‘speed’ of the swearing into office of a President elect. The Commission noted that the changu-pamalo swearing into office of a President elect renders an election petition, if one is filed, farcical. Having made this observation, proposals of the Commission do not, in fact, prevent the swearing into office of a President elect even in the face of an election petition challenging the victory of such President elect.

The integrity and legitimacy of an electoral process is assured if all concerns and disputes are fully resolved before a President elect is sworn into office. I will not – even one bit – take away the integrity and professionalism of the Maraga Court in Kenya. I hasten to add, however, that the provisions under Kenyan law regarding the filing and determination of a petition against a presidential poll, and how and when you swear into office a President elect made the task of the Maraga Court less heavy. The ‘breather’ provisions regulating the determination of election disputes and the procedure on swearing into office of a President elect must be re-visited under Malawi electoral law. We may want to face Kenya for lessons on the matter.

The Malawi genus

Last week, Thoko from Bangwe shared with us his views about the on-going national identity registration exercise. He highlights the benefits of a national ID scheme; at the top of the benefits being the possibility of an efficient public service delivery system. By and large, Thoko also highlights the challenges that a national ID scheme may bring; disenfranchisement and the excesses of a nanny State among others.

 

The national identity registration exercise has also revealed a rather unfortunate scenario. Those who consider themselves Malawians – born, bred and walk the soil – and yet they are not ‘black’ or indeed speak ChiChewa/ChiNyanja with an ‘accent’ have had their claims to what I call the Malawi genus questioned or outright thrown into the trash can. These sad stories are awash in both social and print media.

 

The revelations point to a deep-seated narrative of what constitutes the Malawi genus – species – of us the human beings who for one reason or the other call this potato-shaped territory of this Earth home. This deep-seated narrative relates to the conception of ‘identity’. The conception of ‘identity’ has exercised academics, legal and policy makers over the years. The limitations of space here are such that I cannot fully espouse the conception of ‘identity’ in the Cultural Identity school in the academy or its configuration at law and policy. Suffice it say, for present purposes I will seek to share some thoughts on ‘identity’ based on a ‘Belonging’ / ‘Othering’ dichotomy.

 

There are aspects of ‘identity’ that are based on categories such as ethnicity, race, language, religion, a (national) culture, gender, orientation or citizenship. The way we identify ourselves depends, in large measure, on how we feel about, or value, that which we consider as the dominant influence of our being. The feeling (the psyche) or the value-system we attribute to ourselves will inform the dominant weight on that which defines our sense of belonging. In this way, there are some of us who place more weight on one category more than the other in the process of identifying ourselves. In this way, a person may place weight on ethnicity, race, language, religion, a (national) culture or citizenship to differing degrees in order to identify themselves.

 

Othering in relation to ‘identity’ is oppositional. Othering involves a process where oneself conjures an ‘identity’ of difference; of denying. The ‘self’ that is othered is often denigrated as lacking the state of ‘same-ness’. So, we learn that Greeks called – othered – all non-Greeks as barbarians. Barbarians did not have the same-ness of Greeks. Barbarians were different. Barbarians were denied the characteristics of reason, dignity or nobility that defined human-being-ness according to the Greeks. In modern society, the Other may be a race, a religion, gender or nation-state. In other words, the process of othering is almost always underwritten by a sense of superiority.

 

Indeed, othering has been a result of clash of civilizations. This is pervasive in history: The voyages of discovery and the scramble of Africa are some examples. Othering has also been a result of the Freudian ‘narcissism of minor differences’ whereby group A others group B because group B is seen as a threat to the identity and pride of group A. This Freudian dimension has led to the Holocaust, the Rwandan Genocide and the Bosnian Genocide.

 

[A rider: the categories of ‘identity’ may at once be empowering and subjugating. History and context will matter.]

 

So; what is the Malawi genus? Who is in the Malawi genus? The Malawi genus is primarily defined by citizenship. Who becomes a Malawian citizen is down to, generally, the circumstances of one’s birth, the process of naturalization or even as a result of marital relations. Broadly described, our citizenship law allows a child born in the country to acquire Malawian citizenship; a person acquires Malawian citizenship through naturalization on account of long-term residence; and a person acquires Malawian citizenship on account of marriage.

 

The episodes, therefore, of those Malawians who are ‘not-black’ or speak ChiChewa/ChiNyanja with an ‘accent’ and had their claim to u-Nzika questioned or denied are most unfortunate and deplorable. We need some robust reflection in this country. We must realize that the Malawi genus is not composed of a unified and (easily) determined ‘identity’. The Malawi genus is a mosaic of ‘sub-identities’ which – to use the language of Cultural Identity scholarship – is often contradictory or unresolved identities. Hence, in the exercise of State authority, a public officer – at whatever level – must not be clouded by the lenses of skin colour or lingua. We must move from m’Tumbuka, m’Chewa, m’Chawa, Nguru, m’Mwenye, m’Kaladi yada-yada. There are robust ways of verifying one’s Malawi-ness. And one of those ways is not the colour of the skin or (purity of) accent. The othering must end.

13 billion ways to whine

Our local government authorities are governed, at law, by the Local Government Act. Under the Act, a local government authority has the following functions: to make policy and decisions on local governance and development for the local government area; to consolidate and promote local democratic institutions and democratic participation; to promote infrastructural and economic development through the formulation, approval and  execution of district development plans within its jurisdiction; to mobilize resources within the local government area for governance and development; to maintain peace and security in the local government area in conjunction with the Malawi Police Service; to make by-laws for the good governance of the local government area; to appoint, develop, promote and discipline its staff; to cooperate with other Councils in order to learn from their experiences and exchange ideas; and to perform other functions including the registration of births and deaths and participate in the delivery of essential local services.

The essential services that a local government authority must discharge include the provision of environment and health services, physical planning, parks and recreation, works services, education services, development, and finance services to mention a few. So; as residents of local government areas, our expectation – a legitimate one for that matter – is that our council shall be responsible for the administration and management of good access roads that are well lit at night; the administration and management of well-resourced health centres; the administration and management of local education authority (‘LEA’) primary schools with well-ventilated classrooms to boot (no learning under some tree please); the administration and management of commodities markets; and indeed, the administration and management of kuntaya for our zinyalala.

The Local Government Act states that the Minister may declare a local government area as a ‘township’ or ‘municipality’. The Act goes on state that it is the prerogative of the President of the Republic to confer the title and dignity of ‘City’ on a municipality. Hence, the designation of ‘City’ on a local government area is no small matter. It is such a big deal. In 2017, we have four cities in Malawi: Blantyre and Zomba in southern Malawi, Lilongwe in central Malawi, and Mzuzu in northern Malawi.

Local government authorities – and these include our cities – have the power to raise money, whether by means of rates or borrowing. The generation of revenue ensures that a local government authority is capable of discharging to its residents the essential services that we have pointed out above: environment and health services, physical planning, parks and recreation, works services, education services, development, and finance services.

In relation to our cities, the average resident does not hesitate to bash the apparently poor services that our city fathers and mothers provide. The resident will moan about the potholed roads in our neighbourhoods; he will whinge about the long in disuse sewage system; and what about the no-show waste collection truck or indeed the pitch dark nights because the street lights are not working.

You – the resident – must hold your peace and listen to this: If we restrict our story to the four cities in the country, the city councils are owed a little over 13 billion Kwacha in unpaid city rates. Lilongwe residents are the worst with some 8 billion Kwacha due and owing to the city authorities; Blantyre residents owe some 2.8 billion Kwacha; and Mzuzu and Zomba residents are some 1.2 billion Kwacha respectively in the red.

City rates – as a form of revenue generation by a local government authority – are a tax that a resident must pay to the council for the services that the council renders. The non-payment of city rates that is pervasive in our cities is most unfortunate. As residents, we cannot have our cake and eat it. If we are of the view that we deserve five star provision of essential services from our councils, let us pay our city rates.

It is our civic duty to pay city rates when they are due. I am reliably informed that some city rates’ accounts have been due and owing as far back as 1999. This is simply deplorable. A kid born in 1999 will be eligible to vote in the general elections of 2019. It shouldn’t be this bad. The Malawian Constitution also states that every individual has a duty towards the State with due regard, among others, the common interest. Therefore, this is the message: Before you grumble about that potholed road, the pitch dark night in your downtown and what not; do me a favour and pay your city rates. Once you will have paid your city rates, you will have earned your right to whine about the perceived misconduct of a local government authority.

How noble is the noble profession

Lawyers have a manner of speaking. They are counsel. They are learned friends. And they are in a noble profession. On 27 May, 2017, the Malawi Law Society published in the media the disciplinary matters that came before its Disciplinary Committee and the recommendations the Committee has made in those matters.

For the longest time, one had to go back to1994 to find a case where a lawyer had been disbarred for professional misconduct. [Of course, there has been a disbarment in 2016.] In the intervening years since 1994, the general public formed the view that lawyers in Malawi ‘protect’ each other even in the face of alleged misconduct by a lawyer.

The Malawi Law Society (and its membership) is regulated by an Act of Parliament. The Society also has a Code of Ethics – nineteen chapters of it – on the dos and donts of lawyers. The Code has benefitted from codes of ethics from other jurisdictions; including the International Bar Association’s International Principles on the Conduct of the Legal Profession. There are some ten principles or so that buttress the principles for the regulation of the legal profession. First, the Society’s Code states – in the very first chapter – that a lawyer must not act in a manner that weakens the public respect for law or the justice system or interfere with its fair administration. This is a central obligation to the conduct of lawyers. The other principles state that a lawyer must exercise independent and unbiased professional judgement. The task has never been about what the lawyer or the client thinks; it has always been about what is the law. Second, a lawyer must demonstrate the highest standards of honesty, integrity and fairness with clients, the courts, colleagues and all those the lawyer is in professional contact. Third, at all times, a lawyer must avoid conflict of interest. Fourth, a lawyer must practice confidentiality or professional secrecy. Information a lawyer receives from a client is acquired on trust. Such information cannot suddenly be open folder at a bar or hair salon. Fifth, a lawyer must account, promptly and faithfully, the property of a client and third parties. A client’s property is the client’s property. Mere possession of such property does not entitle a lawyer to use the property for his personal benefit. That would be kuba.

Sixth, a lawyer must also honour the undertakings he makes to clients. Another principle is that a lawyer must respect a client’s freedom to be represented by a lawyer of their choice. A lawyer cannot force themselves on a client. If a client forms the view that they must be represented by a different lawyer, the lawyer must take it on the chin and move on.

More critically, a lawyer must exercise utmost competence. He must carry out his work competently and in a timely manner. There’s no one hundred per cent in the legal profession. There’s one thousand per cent. It is great to look dapper in a designer suit, shirt, tie and shoes. But at the end of the day, the client does not pay the lawyer’s fees for merely looking sharp. Finally, and talking of fees, a lawyer must earn reasonable fees. A lawyer shall not charge unreasonable fees. Clients are not an auto teller machine in order to support a flamboyant lifestyle. No. In fact, it is good practice that a lawyer and a client discuss and agree on the billable hourly rate at their very first meeting to ensure that everybody is on the same page.

The principles that I have shared here underpin the regulation of the legal profession in a bigger galaxy of the rule of law and good governance. The Society’s Disciplinary Committee’s public announcement of the cases it has handled and the possible way forward is a welcome development.  For what it’s worth, the announcement dissuades the fears of the general public that lawyers in Malawi somehow operate in chipwi’kiti world; that they are untouchable and above the law. The last thing a country would want is a situation where the general public does not have the trust for the whole or part of its justice system. The disciplinary process must, however, go the whole hog. The Disciplinary Committee must, ideally, continue to work hand in hand with the Honourable the Attorney General to ensure that those that have been adjudged with cases to answer have their day before the Honourable the Chief Justice. Anything less shall mean a very unfortunate scenario of naming and shaming.

Besides the disciplinary process that the Law Society oversees, there are instances where the conduct of a lawyer forms a reasonable basis that a crime has been committed. Surely, those cases have to be acted upon by the relevant law enforcement agencies in the usual manner they would act if the person involved were a non-lawyer.

It aint all doom and gloom. The legal profession – just like any family – has its share of naughty kids. The father figure – like the Law Society’s Disciplinary Committee – does pull out the whip. And there are also well behaved kids in the legal profession. In fact, plenty of them. Yours truly, I dare say, is one of those good mannered kids!