Mind your call logs
It was chilling—wasn’t it?—when it finally sank that High Court Judge Michael Mtambo had found Ralph Kasambara, Pika Manondo and McDonald Kumwembe guilty of conspiracy to murder one Paul Mphwiyo mainly on the basis of call logs and cellphone activity.
In many ways, what Justice Mtambo had done was to ignore a precedent by the Malawi Supreme Court of Appeal that call logs cannot be admissible as evidence of what may have been discussed. In their wisdom, the Supreme Court judges envisaged that if such were to be allowed then it would open a floodgate of convictions of innocent people based on the evidence of call logs alone.
No wonder then, after Mtambo’s ruling, lawyers scrambled to the media to express their dismay, describing the ruling as ‘strange’ -a polite disagreement any lawyer can give knowing that they will have to face the same Judge one day. We all ought to be afraid. Very afraid.
And for good reason.
While it is Kasambara who is at the end of this strange ruling today, there can be not telling who will be at the wrong end of this call-logs barrel tomorrow.
In this case, a high profile personality had seemingly fallen. It is easy for those who have an axe to grind with Kasambara, lawyers and non-lawyers alike, to celebrate his lynching, while those who are indifferent will say that his cross is none of their concern. But this ruling places everyone in danger of being convicted for something they never did or knew anything about.
As long as this ruling remains, any person using a cellphone must pray every day that no one on their call list—especially regulars—should ever be accused of committing any criminal offence.
Should that happen, they too face the risk of being found guilty of conspiring with the people they were calling. It does not matter whether they were discussing wedding plans for a family member or are engaged in banter over a Manchester United Football Club win. According to Justice Mtambo, calling a person who ends up being accused of a crime makes you party to that offence.
Worse still, being in constant touch by cellphone with anyone and then that person happens to have called someone, who later on becomes a victim of assault or murder, means that you and the other person were conspiring to commit that crime. Continuing communicating after you hear of the crime only confirms the conspiracy.
Of course, in days past, this amounted to lousy reasoning. Today, it is law, thanks to that judgement.
But it is a frightening judgement, on which we must all be engaged.
Precedent elsewhere shows that when lawyers stand up against an unjust law, the bench listens.
A good example is the case of Pastor Evan Mawarire, the man behind the #ThisFlag campaign that helped mobilise Zimbabweans to protest against President Robert Mugabe’s government these past months. When the State brought charges of treason against him, more than 30 lawyers showed up at Harare’s Rotten Row Courts in solidarity with the defence—a bold statement that they would not allow the law to be adulterated. In the end the judge had no choice but to throw out the charges.
Some will say it will be too much for anyone to expect our Malawian lawyers to show up in gowns and all at Kasambara’s appeals hearing because Malawians are known for suffering in silence. But, I dare say, that for those who openly came out and protested the ruling on social and mainstream media, their protests will come to naught if they fail to protest this law in court.
For those who prefer to suffer in silence, we pray that they must at least lend their expertise to citizens who see this for what it is—an abuse of judicial power that will have far reaching implications for years to come.
The Supreme Court moved in once against this kind of abuse and it is time we all did our part. Until this ruling is quashed, we all are at risk of being locked up because we called someone who called someone who happened to be assaulted. That, there, is the frightening part. n
