Malawi: Off the Wall of Makossah - Is Mpinganjira Above the Law and ACB Below It?

23 January 2020

Strategic lawyering remains a monument to the value of long-term planning in the law and legal echelons, for any attorney worth his or her salt, although it must be quickly said that most Law Schools no longer make them strategic lawyers in abundance because strategic lawyering requires not legal principles, knowing or understanding the law but legal wisdom - which is uncommon.

Mpinganjira released from custody and warrant of arrest has been declared by court as void

Strategic lawyers are a dying breed.

Good lawyers knows the law, but the best lawyers are strategic in every step of their lawyering. Wise legal strategists are more important to clients than those that just help their clients out of jail or a holding police cell.

My Law Professor, who is a revered senior serving Judge in Her Majesty's Courts and Tribunals, once told me that if I want to make a good lawyer, I have to master the art of strategic lawyering.

Most lawyers, the Law Professor told me, probably think they are clever because they think about how to maneuver within the legal system. That's not it. Good lawyering goes beyond getting someone out of jail or winning a case, it considers the long-term positives, repercussions and rewards.

Strategic lawyering looks at the big picture and not just a shapshot in litigation. In real world clients want their lawyers to them what they can do more than what they can't do.

It is the duty of the lawyers not to tell their clients what they want to hear but what is right and in line with the law. Clients must in no way tell a lawyer what they want to do no matter how rich or powerful. A lawyer must always be in charge and acting in the interest of both the law and the client in equal measures.

The worst thing that a lawyer can do is but to please a client because he or she is so powerful or is highly connected at the expense of what is acceptable by the law and the justice system.

Business of Litigation

In litigation, legal strategy does not begin with filing a complaint and end after completing a trial. It should start when the client first enters the office and extend for the life of the business relationship.

This extends to how you discuss issues with your client. When you raise an issue, with whom you raise it, how you raise it -- in all of these situations, you again need to think of long-term consequences.

Long-term planning is a way of thinking. It is a lawyering habit, a skill or technique that can be learned.

Sadly, many I see lawyers in Malawi who not only don't think or operate strategically; they don't conduct their business without strategy or wisdom, they don't even appreciate the importance of thinking this way.

There is a reason a lawyer is addressed as a Counsel - it is conveniently because they give their clients, innocent or guilty of an offence, some good legal counselling.

In Thom Mpinganjira' s case, his lawyers, whoever they are, there is no strategic lawyering or legal wisdom. The way the lawyers have handled this case, on the given known facts, is unbelievable and out of sorts. On the face of it, it may look like a clever move but it isn't. It is bad lawyering in my view.

Yes, Thom Mpinganjira, who was nabbed by the country's graft busting body, ACB for being suspected of attempting the judges presiding over the May 2019 presidential elections after obtaining a warrant of arrest from the Magistrate Courts in Lilongwe was set free outside working hours, just after midnight, in a way everyone can only speculate anything.

Were there no magistrates in Blantyre?

As a matter of legal fact, a warrant issued by a magistrate cannot be invalidated or vacated by another magistrate.

By the way, what is the reason of invalidating the warrant of arrest and letting Thom Mpinganjira go off the hook before going to court for a legal process to do so?

What's the long term plan for the case? Do the lawyers really think this will just go away and that this will be the end of the case? What is the strategy for doing this?

Is Mpinganjira above the law and the ACB below it?

And the Magistrate who corruptly quashed the warrant in the stillness of the night, is he aware that the complainant in this case is his employer and it was reported by his Chief Executive?

Did Mpinganjira's lawyers consider the consequences of this or they just wanted to play a one minute legal stupid trick and go back to as it were? Did they consider their client's reputation and long term believability issues?

Do they want their client to be remembered as a crook who got released from the police through crookedness?

Again, why was a deputy minister of defence who is is also a Member of Parliament meddling in this case? How can a public servant act as private servant against the very same public service that he serves? What is the strategy? A Mpinganjira fighting for a Mpinganjira? A lawyer 'dislawyering' the law?

Malawi Law Society, is this allowed?

All in all, there is no strategic lawyering or legal wisdom wisdom in all this and the legal profession must be ashamed.

The article is taken from the Facebook wall of Peter Makossah a journalist and trained legal practitioner

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