Tuesday, January 17, 2012

Lawyer Ralph Kasambara Summoned By Southern Region Police Over On-going Industrial Strike

The President of Malawi Law Society and all colleagues,

I regret to let you know that I was summoned by the Commissioner of Police South to his office this afternoon. He relayed to me his gathered intelligence report that Mr Humprey Mvula and I have been secretly meeting with other people within the last 48 hours to take advantage of the industrial action by informing Malawians that the on-going strike is violating people's rights. He further went on to say that we are intending to publicise to Malawians how the strike is aiding the police in violating the 48 hour rule with the result that "Malawians will have disaffection for the President Bingu wa Mutharika". He urged as to be patriotic and not get involved in the judicial strike. His statement got closer to suggesting that we are about to commit sedition or treason. How we intended to do that he declined to comment further but said that he was simply carrying out his duty of preventing commission of a crime.

We all know how these twin offences are used by the Bingu administration to harass opposition and civic society leaders; and no such case has been prosecuted to its logical conclusion. No wonder those 2 offences were picked and thrown at us.

My initial reaction was that of laughter at the ridiculous charges and disinformation that the police were peddling. Second, was one of sadness of the ineptitude of our police service since Mr Mvula and I had neither met nor talked on the phone for over 10 days. The last time I saw him in my office was about 2 weeks ago when he had come to sign Affidavits in an on-going UDF case. Third, was one of disbelief on our Politicians' attempt to use the Police institution to silence people and intimidate them into cowardice so that the other side of the industrial action is not exposed. Most people are not aware of the serious implications of the strike on our economy and human rights. The on-going industrial action affects all of us as Malawians.

Members might wish to remind themselves of the genesis of this matter. In 2006, the Malawi Law Society took out a judicial review case against the State President challenging the State President to comply with the constitution in so far as the remuneration of the judiciary is concerned. Judgment was delivered by 2 member panel on 2nd September 2007. The case is cited as The State v President et al ex parte MLS [2007] MWHC 7. The High Court was composed of Justices Chinangwa, Chikopa and Kamwambi. The Court WAS OF THE OPINION that:

"The Applicants sought three declarations namely that:

1) the Respondents were duty bound to implement the determination of the National Assembly as regards the salaries and remuneration of the Chief Justice and other holders of judicial office;
2) the refusal by the Respondents to implement the determination of the National Assembly as regards the salaries and remuneration of the Chief Justice was in breach of the Constitution;
3) the Respondents had no power to determine the remuneration of Chief Justice and other holders of judicial office.

They are all granted. As we have shown in our discussion above once the National Assembly has in its wisdom determined the terms and conditions of service of the judiciary it becomes the duty of the executive to implement such determination. Any refusal can only be in breach of the constitution. The power to determine the Terms and Conditions of service in the Judiciary resides with the National Assembly not in the Executive. The Applicant also sought an order akin to mandamus requiring the Respondents to implement the determination of the National Assembly as regards the salaries and remuneration of the Chief Justice and other holders of judicial office. It is also granted" per Justice Chikopa with whom the other 2 judges concurred and adopted his written opinion.

I was the lead counsel for the team of lawyers representing the MLS and the State President was representing by the incumbent Attorney General then a lawyer in private practice.

To the best of my knowledge the President has not complied with that court order culminating into the present industrial action. To the best of my knowledge no contempt of court proceedings were commenced against the President as Respondent.

My being singled out today is an attempt to silence me and intimidate me into inactivity as an advocate so as not raise issues of contempt of court [ which can easily and SHOULD BE be done] as one way of pushing the striking JUDICIAL staff agenda. This attempt by the Police, I believe, is a violation of my right to economic activity as a lwyer and indeed my freedom of expression and opinion as an individual in so far as they believe that they can silence me into not commenting on the ongoing strike.

It is actually because of my earlier involvement with this matter that colleagues might have noticed that I have been audibly silent on the on-going debate on the way forward as Malawi Law Society. But now in view of this intimidation and unnecessary harassment from the Police I HEREBY DO RENOUNCE my silence and will join the rest of members on charting the way forward lest I be misunderstood to have been silenced by the Police.

I thought Mr President and my colleagues should know what happened this afternoon; and my change of heart on this debate.

Ralph Kasambara, Esq.
Managing Partner, Ralph & Arnold Associates, Legal Practitioners & Law Consultants Off Old Chileka Road, Magalasi
Private Bag 55,

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