Twist to Lutepo, Mphwiyo order

Lawyer for businessperson Oswald Lutepo and former Malawi Ministry of Finance budget director Paul Mphwiyo has asked a court to vacate an order that required two mobile telecommunication companies to release call logs for the two.

Former minister of Justice and Constitutional Affairs Ralph Kasambara, accused of conspiring to murder Mphwiyo, successfully obtained the order that compelled TNM and Airtel to provide him call logs to enable him to prosecute Lutepo and Mphwiyo privately on charges of intimidation.

But Director of Public Prosecutions (DPP) Bruno Kalemba blocked the private prosecution and took up the matter to prosecute Lutepo and Mphwiyo on charges of intimidation and asked the two mobile companies to hand over the call logs to his office.

Now Lutepo, who is connected to the infamous Capital Hill cashgate scandal where billions of kwacha were siphoned, and Mphwiyo, have through their lawyer Kalekeni Kaphale asked Blantyre senior resident magistrate Viva Nyimba to vacate the order he issued earlier.

The order, however, was still in full force despite the recent legal processes and the DPP confirmed in an interview on Tuesday that TNM and Airtel have already submitted the call logs to his office.

Lutepo and Mphwiyo, in their application to vacate the order, feared their right to privacy was going to be infringed upon, arguing the right to privacy is limitable but the limitation must not negate the essential content of the right, according to Section 4 of the Constitution.

They argued that the data Kasambara was looking for from the service providers was data that the complainant’s own telecommunication service providers must be keeping as it is data that, among other things, enables them to monitor all communications that terminate within their network for the purposes of charging termination or interconnection charges against the originating network.

“Hence the order or search warrant that was made or granted was entirely unnecessary and broad.

“If such an over-broad order was executed, it would also lead to revelation of call data records of the defendants for calls made to persons other than the complainant and that would violate the defendants’ right to privacy unjustifiably or unreasonably,” reads part of the application.

Nyimba, who ordered an inter partes hearing on the matter, set January 13 2014 to hear the arguments before he decides whether to vacate his own order or uphold it.

Kaphale earlier went to the for judicial review on the matter but the High Court referred him back to the magistrate.

Kasambara was arrested in November for allegedly attempting to murder Mphwiyo, but the charge was later changed to conspiracy to murder.

Mphwiyo, who was moved to the Office of the President and Cabinet (OPC) after the cashgate scandal where government paid money in billions of kwacha to private companies, in some cases for services or goods not provided, was touted by President Joyce Banda as a victim of her anti-corruption drive.