Malawi: Mpinganjira's Midnight Walk to Freedom Under Scrutiny - Magistrate Chitsakamile Should Resign

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24 January 2020

The events surrounding the arrest of business mogul Thom Mpinganjira, who is also chief executive officer of FDH Financial Holdings Limited and shareholder over the alleged judge bribery attempt in the presidential election nullification petition case is confusing as it is a mockery of justice.

Anti-Corruption Bureau (ACB) on Wednesday arrested Mpinganjira and took him to police where he was to be remanded overnight and expected to appear in court the following day. However, Malawians woke up to the news that Mpinganjira had been released at midnight by a Zomba magistrate Ben Chitsakamile where his lawyers travelled to obtain his discharge.

The Mpinganjira saga raises several issues. Those who are familiar with the Malawian legal system know that a magistrate cannot overrule the decision of his fellow magistrate. They are of the same rank. Naturally, a higher court is supposed to nullify the decision of the lower court after both side are heard. Where did the magistrate get the power to nullify the decision of his fellow magistrate?

That aside, why should the lawyers opt to go to Zomba, more than 55 kilometres away from Blantyre, to challenge the decision of another magistrate when Mpinganjira was arrested in Blantyre? Obviously, this is judge shopping. And the judiciary should discourage this practice because the motive is obvious. It is equally queer that the court should sit at midnight just because the person involved in the case is rich. This privilege of freeing a rich person at midnight is not extended to poor people many of whom are languishing in prison for minor offences such as stealing a chicken or a goat.

We know that lawyers do not always stand for justice, but to make money. However, magistrates and judges must always dispense justice because they are a mirror of society and people expect impartial judicial decisions. If they pass questionable decisions or behave in a manner that is prejudicial to their profession people lose trust and confidence in the judicial system. ACB Director Reyneck Matemba has branded the judiciary "rotten" because of the way magistrates and judges make their decisions.

The Zomba magistrate has seriously dented the image of the judiciary. He should resign. He has brought the legal professional in disrepute. How do you free someone at midnight when the ACB who filed the case has not been heard?

When Malawians are complaining about high level corruption and frantic efforts are made to arrest the vice, we have some people condoning it. The war against corruption, which has now reached unprecedented level, cannot be won unless the judiciary make correct decisions.

It is a huge relief to learn that the ACB has gone to the High Court to reverse the irrational decision and the matter is being reviewed. However, this should not end here. The magistrate should resign or face disciplinary action.

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