Lawfare refers to using the legal system to achieve a strategic military or political goal as a form of warfare.
It involves manipulating or exploiting the legal system to achieve objectives that would otherwise be unattainable through traditional military means.
This concept encompasses a wide range of activities, including the abuse of human rights laws, filing frivolous lawsuits, and the manipulation of international treaties and agreements.
The primary objective of lawfare is often to undermine the credibility and legitimacy of a government, military, political entity or even individuals deemed enemies of the State.
While lawfare can be used by individuals, non-state actors, or governments, it typically undermines the rule of law. It can have negative consequences for human rights and the stability of the international system.
What we are witnessing in Malawi concerning the ouster of Martha Chizuma, director of the Anti-Corruption Bureau (ACB), is the manifestation of Lawfare. It is, of course, a mockery of the law, a crude manipulation of the rule of law, and by making use of such archaic laws, the State will say it is enforcing the rule of law.
But when the law is applied in this way, it becomes a crude instrument of abuse; to target critics under the guise of legality. If not resisted, this will become a weapon of choice.
Dictators have always hidden behind legality and behind courts to punish opponents. Chizuma is a target by a cartel that now fears ACB.
However, it must be stated clearly that lawfare weakens state institutions.
The Chizuma debacle at ACB, where reports indicate that she has finally been interdicted, speaks into a case of lawfare.
Background
In January 2022, Chizuma is accused of sharing sensitive information with an “unknown” male counterpart who recorded her and then leaked the audio via social media.
President Lazarus Chakwera, in response to the leaked audio publicly undressing Chizuma, said his legal advisors had indicated that this was a dismissible offence but decided to go against that and forgave her.
A couple of weeks later, there was an avalanche of court cases, with hired guns, including dubious gold diggers in the name of civic organisations, trying to drag Chizuma to court and even pushing the State to charge her.
The courts shoved off all efforts to allow Chizuma to be summoned.
In the latest ruling, Justice Annabel Mtalimanja set aside the order by a Mzuzu Magistrate Court and the entire proceedings before Court.
Mtalimanja described the proceedings against Chizuma as vexatious and an abuse of the court process, since similar proceedings had been previously commenced and dismissed before Lilongwe and Blantyre magistrate courts before being taken to Mzuzu.
What is clear is that Chizuma’s case played out in the courts, where legal gurus were behind the scenes but in full control of the situation. They employed court processes as ammunition (Lawfare).
The Arrest
Come December 6, 2022, Chizuma is arrested, in a dramatic fashion, in the wee hours of the morning.
Her lawyer, Martha Kaukonde, said she was not surprised by the arrest because there were several attempts to get Chizuma detained.
“There was a case that was commenced in Lilongwe that was thrown out by the court,” Kaukonde said. “And another case came up with Blantyre [court]; it was thrown out. A third one resurfaced in Mzuzu [court], and we proceeded to apply for review in the high court in Lilongwe. And the high court agreed that the process was supposed to be stopped because the decision was already made in Lilongwe and Blantyre, so it was an abuse of the court process.”
Kaukonde said Chizuma was charged and is now out on police bail.
“They say [the charge is] making use of speech capable of prejudicing a person against a party to judicial proceedings, contrary to Section 113 (1) (d) of the Penal Code. So essentially, it is to do with leaked audio in January this year,” Kaukonde said.
Police said in a statement Tuesday that the arrest follows a complaint from the director of public prosecutions, Steven Kayuni.
A public outcry ensued after reports of Chizuma’s arrest. While police went on to formally charge Chizuma, President Chakwera and his entire cabinet denied any knowledge of the arrest of a very senior member of the government.
Pressure mounted as the international community voiced concerns, forcing the president to institute a commission of inquiry.
The Commission’s Findings
The commission interviewed close to 35 people and faulted both Kayuni and Chizuma. President Chakwera responded by firing Kayuni for abuse of office and reiterated his confidence in Chizuma.
Despite Chakwera’s assurance that the charges were dropped unconditionally, Chizuma was summoned to court last week, which finally led to her suspension.
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