‘Judiciary remains relevant, powerful’

Lawyer Ralph Kasambara was arrested on Monday when he went to the police to report intruders that had allegedly invaded his office premises to attack him. Police continued to detain him on Tuesday even after he was granted bail. After his release on Wednesday, police re-arrested him, claiming proper procedures were not followed. On Friday, a court order for his release was issued by the High Court in Zomba, but Kasambara was not released. Mwereti Kanjo caught up with Chancellor College’s associate law professor Edge Kanyongolo to discuss these issues.

Q: What do you make of the whole incident?

A: It is a matter that raises a number of important constitutional questions relating to the right to personal security and self-defence, equal access to justice, the authority and integrity of the Judiciary and the rights of detained persons. Certain aspects of the case have rightly caused concerns about the health of the rule of law in present-day Malawi. I share those concerns.

Q: Five other people that were arrested with the lawyer are free, only Kasambara was re-arrested yet they all used the same bail order? Was this in order?

A: On the face of it, such differential treatment amounts to unconstitutional discrimination. This is unless the State can prove that the alleged defects in the bail process applied only to Kasambara and not the other five.

Q: Does this mean that the Judiciary arm of government is no longer relevant?

A: The Judiciary not only remains relevant but also retains all the power and authority that it derives from the Constitution. Any purported challenge of its authority by any individual or institution, including other organs of government, is invalid. It is an exaggeration to suggest that the Judiciary has become redundant because of one case of attempted defiance of its authority.

Q: People are speculating that the arrest is political, after Kasambara is on record to have criticised government over its failure to address challenges the country is facing. Could this be an explanation for this state of affairs?

A: The circumstances surrounding the case suggest that this is more than a simple criminal case of assault. It is now up to the State to explain to the public, in the spirit of transparency and accountability, why so many police resources are being spent on this one case of assault, if the arrest and continued confinement of Kasambara are not influenced by political considerations.

Q: Police said on Thursday that they would not release him? Is the police not infringing on his right to bail?

A: Any confinement of Kasambara in defiance of a court order is a violation of his right to bail. It is also important to note that under the Constitution, he is presumed to be innocent until proven guilty.

Q: What laws are there which protect citizens from such treatment?

A: The Constitution is supposed to be the primary legal protection. However, for such protection to be effective, the Executive and the Judiciary must cooperate and not undermine each other.

Q: People have accused lawyers and the court of rushing to represent and bail out their fellow lawyer, Kasambara, when so many others are failing to access similar services due to the Judiciary support staff strike. What is your comment on this?

A: It is the accused who seeks out legal representation and approaches the court, not the other way round. Accused people with financial and legal resources are better able to afford lawyers who use their knowledge and skills to activate the Judiciary into action. This challenge to equal access to justice can be addressed partly by expanding the Legal Aid Department which provides free legal services to people who cannot afford to hire their own lawyers.

Q: Any last comments?

A: Whatever one’s views of Mr Kasambara and his political views are, every citizen interested in promoting and protecting human rights must stand up and be counted in defence of his rights to freedom of expression, personal security and fair trial.

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