Tuesday, 30 December 2014

Shooting off the hip and the diplomatic service

By Sunduzwayo Madise
30 December 2014

In a game of chess, whatever gambit you chose, the idea is always to plan ahead. You must always be several moves ahead and consider the: what if scenario. What is important also is whether you have a backup or an 'escape route'? And in every game of chess the king must always be protected. The king is not the most powerful piece in the game, but is the most important. He must be shielded and protected at all times. When the king is captured or cornered it is curtains; game over. Now clearly this game was conceived when the thought of a female sovereign was inconceivable – how times have changed! We will return to this analogy of chess but let us extend the discussion to another aspect of the sovereign. Traditionally, ambassadors were personal representatives of the sovereign. They were appointed and accountable to the sovereign. However in recent times we have noted that sovereignty has moved from a person (such as the Queen) to the state. This is the state of affairs in Malawi where we have a constitutional democracy and the doctrine of separation of powers calls for checks and balances between the three arms of government. Under this doctrine we have a head of the executive, head of the legislature and head of the judiciary. All these are under the head of state. In the UK the Queen is head of state, the Prime Minister is head of the executive. In Malawi the President is both head of the executive as well as head of state. However in making his decisions, he will do so as either head of state or head of the executive. Where his decision needs approval by another arm of government, then clearly he is exercising functions of head of the executive. To ensure that there is checks and balances with the doctrine of separation of powers, modern democracies now require that certain positions like of ambassador be approved by Parliament. Parliamentary approval is a recent addition to the doctrine of checks and balances. The President as head of the executive appoints, then another body, Parliament approves this appointment. When Parliament has approved, the President as head of state now sends the envoy yonder. Ideally this system should ensure that the candidate that gets the final nod is the right candidate to represent our state. Two recent appointments in which both appointees have turned down (or as they said themselves: “opted out”) amidst rumours of rejection by the recipient countries have prompted the writing of this piece. If true, this demonstrates a failure in the system at many levels.

I can say without fear of contradiction that both Dr Heatherwick Ntaba and Mr Thoko Banda are highly intelligent people. Hearing Mr Banda reminds me of the extremely articulate and highly intelligent Aleke Banda, his father. In the days of old we did not call Dr Ntaba talking computer for nothing. The man has a grasp of issues and speaks with conviction. Yes the fact that he speaks the Queen’s language with such finesse adds up to the mystique. Sadly however intelligence is not always equal to wisdom.

Mr Banda was appointed Ambassador to Zimbabwe. It later transpired that he had said some not-so-flattering things about the comrade.  It is rumoured Harare made it clear that the Ambassador-designate was persona non-grata. Mr Banda then went on various media trying to explain himself; and in the process said that in fact he had not been consulted before the appointment. Ooops!  Now people have asked: is Mr Banda not entitled to air his opinions? What happened to freedom of speech? And therein in lies the problem. He may be so entitled but maybe the question to be asked is whether he was wise to be so blunt, especially if he was planning for political office or diplomatic service. I read the article that caused all the furore and it reminded me of the phrase shooting off the hip. Shooting off the hip in this regard describing a person who does not censor their actions or words. At this point I recall the song by Robert Fumulani; ukayenda kumasiya phazi osati mulomo chifukwa mulomo uzakupeza.[1]

Which brings us squarely to the good doctor. During the time of the late Bingu, Dr Ntaba was part of the President’s press and PR team. And one thing you can bet on Dr Ntaba is that he will never disappoint. So during those politically charged moments when the British High Commissioner was given orders to leave, resulting in a tense diplomatic stand-off, Dr Ntaba naturally had to be on the side of the big kahuna[2]. Do I believe that Dr Ntaba believed the strength of his own arguments? No, definitely not. Do I believe that he nonetheless spoke with passion and conviction? Definitely yes. What was clear was he was shooting off the hip. Once again we have a situation where Dr Ntaba may not have been wise considering posterity. In hindsight he was not wise at all. He ought to have censored his words or exercised an element of restraint. But it is easy for us to say this after the fact, but nonetheless it is a lesson which hopefully others have learnt from. Therefore rumours that London indicated that Dr Ntaba would not be received as our emissary by the Queen are not surprising. In fact what is surprising is that these appointments were made in the manner they were in the first place.

When the Secretary to the President and Cabinet (SPC) was asked about the recent appointments to parastatal boards (in which some folk turned down and cried I was not-consulted), the SPC boldly said they do not consult before making appointments. That got me worried. I read in that response that they either do not have time to consult (which is worrying) or they do not bother to consult (which is very worrying). And if this consultation does not extend to ambassadors then it is even more worrying. And should we be surprised when one day a person happily rotting in their grave is appointed?

I did say earlier that this has exposed failure of systems at many levels. How are candidates appointed to key positions vetted? Is there even a process of vetting candidates?
If we refer back to the chess analogy, shouldn’t we have someone or some pipo planning ahead and contemplating what the other side might do? The Catholics gave us a good name for this, devil’s advocate.[3] Shouldn’t we have someone play devil advocate? Dig out any dirt and lay it on the table? And like a game of chess, shouldn’t we have someone getting into the shoes of the 'opponents'? Now I am aware that Public Appointments Committee (PAC) of Parliament is not exactly an opponent in the traditional sense but in this game theory, the other side is treated as though they are. Shouldn’t someone pre-empt PAC and what they will say or ask? Shouldn’t someone conduct an individual risk analysis for all key positions before they are thrown to the lion’s den? Now playing devil’s advocate does not mean that the candidate will not come out successful, it just helps to prepare for any nasty surprises. And surprises have an uncanny habit of being brutally nasty. As it is said forewarned is forearmed.

Let us start with our intelligence service(s). I am aware that the intelligence service performs important state functions to ensure that our country is safe from its ‘enemies’. However it is no secret that intelligence services do more than this. Intelligence services do a lot of information gathering. So let us assume the President intends to appoint one Mr Thoko Banda as Ambassador to Zimbabwe, shouldn’t the first thing be a request to the Director General of the National Intelligence Bureau (NIB) for a full dossier on Mr Banda before the President makes it official? Now let us be honest, information gathering these days is a different business altogether comparing to the days of old. It is a sophisticated art which depends on use of technology. For one it needs a lot of resources. I cannot say it for a fact, because I do not know, but if there are no high speed and high capacity computers and fast access to data channels (including the internet) at NIB offices then Government needs to invest in this yesterday. Furthermore, to make sense out of data collected, needs analysis. Qualification for intelligence analysts should not be being a party royalist. We need people who have been trained at least at tertiary level. They should be able to read chatter on the internet; social media and draw a picture based on evidence. Intelligence analysts think in multi-dimensional visions. They look at pieces of information and draw patterns. They connect dots which most of us cannot. Like a game of chess they contemplate the next move and several moves ahead. All intelligence organs the world over are now using the internet as an information gold mine; usually within the law but at times outside the law. There is always a big brother watching; what he is watching though is what matters. Information not gossip; not opinions is what counts. Analysts should be able to dig out information of every intended appointee such that a dossier is presented to the President before the actual appointment is made. So if the NIB cannot do this for people appointed as Ambassadors then it is clear more resources and efforts need to be injected to enhance its information analysis functions. Put simply, a dossier should have been presented to the President indicating that there were likely to be problems in having Mr Banda appointed to Zimbabwe and Dr Ntaba to the UK. It is elementary actually when one thinks about it, so basic that it boggles the mind how this was even allowed.

Let me digress a little here. I am told that two appointees; Mr Banda and Mr Voice Mhone all said they mothers come from Thyolo. Now only a stranger in Jerusalem would fail to connect the importance of Thyolo; the home district of the President. My question is why is this information even important or necessary? Did PAC actually ask these two Malawians where they mothers come from? If so then I have big problems on the mandate of PAC. Should they be discriminating Malawians based on their origins really? Shouldn’t being Malawian enough? Reminds me of the Traffic Police when they stop you for a traffic offence and ask for your tribe! Really? What has my being Ngoni got to do that I maybe a bad driver? I hope the Police are aware that this is a colonial left-over legacy which profiled Nyasalanders! I decided a long time ago that my tribe is Malawian. This has irked several people but I have decided to stick to my convictions. Now this doesn’t mean I am not proud of my Ngoni heritage but I refuse to be containerised in this imperial manner 50 years after our independence. In the UK, where we got these regulations from, no one asks this anymore. In fact it would be a scandal if a Police Officer did that!

So back to the issue at hand, and to conclude, Government should have information on its people. This does not mean spying on them although it is an open secret that all governments spy on their subjects anyway. In fact you would be naïve if you think they do not or should not, especially in these days when there is so much digital footprint left in all our digital voyages. No organisation can succeed without an element of spying and information gathering. No leader can successfully lead his or her people without gathering information about those being led or governed. It is just part of the business. Collecting vital information that can enhance decision making is therefore part of management. Before the President appoints people to become board members of parastatals, he should have a dossier about each of them to see whether they are fit and proper for the appointments. Then there needs to be a mechanism to obtain their prior approval, especially if there are indications that they may reject the appointment. This information can only be provided by those in the information gathering business. Ideally the President or his emissary should actually have chat with any person targeted for a public appointment of state importance to ensure the issue of acceptance is taken out of the way. Sometimes in this chat, the appointee-to-be may actually indicate any bottle-necks or pitfalls that exist and a plan may be worked out in advance (hoping in the honesty of people to tell the truth). Crucially before he appoints any Ambassador, the President must satisfy himself that they will pass the PAC test as well as have no barriers to be accepted by the recipient country. Does this mean that background check will guarantee that PAC will always approve the President’s appointees? No, but the answer to this lies in the realm of politics which is outside the scope of this piece.

[1] Ideally when you travel, leave a good name (of your conduct), avoid leaving a bad image (bad mouthing) because the character will one day surely catch up with you (or your ‘bad mouth’ will follow you)
[2] Big kahuna was coined by Ralph Tenthani and Dr Ntaba tried to convince the nation that it was a derogative reference to the President. He was of course wrong. Big kahuna is a term referring to the boss, leader or chief. See http://en.wiktionary.org/wiki/big_kahuna
[3] http://en.wikipedia.org/wiki/Devil%27s_advocate

Tuesday, 16 December 2014

Rationale of Regulating the Financial Services, Models of Regulation and Need for Regulatory Independence

Theory suggests that the primary role of financial institutions and capital markets is to facilitate the allocation of resources in an uncertain environment across space and time.

Therefore regulation of the financial sector has a crucial role to play, especially in the development of third world countries, most of whom have enormous wealth disparities between sections of their populace. A key objective of regulation is to redress information asymmetries that sometimes exist in financial services businesses usually to the disfavour of the consumer.

Although most often the regulator is also the supervisor, the role of the regulator and that of the supervisor are. In most jurisdictions however, the powers to regulate and to supervise the activities of the financial services sector reside in the same institution. The regulatory framework of financial services often comprises primary regulation, secondary legislation and guidance and (policy) directives and directions issued by the regulator.

This paper looks at the rationale for regulation, the different models of regulation in the financial services and what they are aimed to achieve. The paper also looks at the broad objectives of regulation even in the absence of a unified theory of financial service regulation, such as investor protection, ensuring fairness, reducing contagion, protection against malpractices and maintaining consumer confidence.

The paper also analyses the pros and cons of single, twin-peaks and multiple financial regulator and why regulators need to be independent [but accountable] whilst at the same time avoiding industry capture.

Although the paper discussed regulation broadly, it discusses financial services regulation in the context of the Malaŵian financial regulatory framework with a brief overview of the regulatory models in the United Kingdom and Zambia.

Keywords: financial regulation, Malawi, regulatory independence, rationale for regulation, regulatory models, regulatory theory, single peaks, twin peaks, Zambia
working papers series 


Monday, 15 December 2014

Solving the Remittance Dilemma

Sunduzwayo Madise 

University of Warwick; University of the Western Cape; University of Malawi
November 27, 2014

American International Journal of Research in Humanities, Arts and Social Sciences, 8(1), September-November, 2014 

Remitting money in sub-Saharan Africa has always been a problem because of infrastructural problems affecting the region. Malaŵi, being a land-locked least developed country has been greatly affected by this. The country is agro-based with a majority of the population living in villages in the rural areas. Traditional means of remitting money have proved to be either expensive or unreliable. With the advent of the mobile phone, mobile network operators have devised a solution to the age-old problem of remitting finances to rural areas. The paper looks at how the mobile network operators in Malaŵi have addressed the remittance dilemma by taking advantage of the ubiquitous nature of the mobile phone.

Keywords: financial inclusion, Malaŵi, Malawi, mobile money, payment system, remittance


Payment Systems and Mobile Money in Malawi: Towards Financial Inclusion and Financial Integrity

Sunduzwayo Madise 

University of Warwick; University of the Western Cape; University of Malawi
November 27, 2014

ANULJ 2014 Vol 2(2) 71-96 

Abstract:      Malawi, like other African countries, has witnessed a recent surge in mobile phone usage. The increase in phone usage has been accompanied by an increase in mobile phone based products. Two such products in Malawi are Khusa M’manja (‘money in the hands’ in the local language) and Mpamba (money in the context of ‘start-up capital’ in the local language). These products, and the services they contain, allow the phone user to use his or her mobile phone as a wallet or purse: he or she can load money into the phone, send and receive money, make deposits and withdrawals, purchase goods and services, and pay bills. Khusa M’manja is provided by Airtel, while Mpamba is provided by Telekom Networks Malawi (TNM). Khusa M’manja and Mpamba may be said to be close relatives of M-Pesa, a financial service that was developed in Kenya by Safaricom. The introduction of M-Pesa has led to an increase in money circulation, roping in those who would otherwise have been left out by the formal financial sector. The mobile money platform has been lauded as an effective means of ensuring financial inclusion of the unbanked, which constitute a large proportion of Africa’s Sub-Saharan population. For many, therefore, the introduction of mobile money services into the national payment system is a welcome development. However, balancing between the competing interests of financial inclusion and financial integrity remains a serious challenge.

Keywords: mobile money, payment systems, khusa m'manja, mpamba, M-pesa, regulation, remittance dilemma, financial inclusion, financial integrity, unbanked


Monday, 24 November 2014


Sunduzwayo Madise
23 November 2014

I heard the original story from James Mbingwa[1]. I have granted myself poetic licence and added in mchere na sobola (salt and pepper).

The story is told predominantly in Tumbuka. Tumbuka is the dominant language spoken in the Northern part of Malawi. The story has also few Chichewa (the main language in the Centre and most parts of the South of Malawi) and one or two Ngoni/Zulu words (the original language of the people of Mzimba, the biggest and most populated district in the North). Suffice to say the Ngoni language is now spoken only in parts, principally at Edingeni, the headquarters of the Zwangendaba/Jele Ngoni Paramopunt Chief: Inkosi Ya Makhosi Mbelwa V (King of Kings) and also in parts of Ntcheu in the Central Region, especially at the Nkosini[2] in Lizulu[3], headquarters of Inkosi ya Makhosi Gomani V, among the Maseko Ngoni.  Tumbuka typically has some characteristics, one of which is that it emphasises certain consonants when mixed with vowels such as “d” and “b”. To show this emphasis, I capitalise the consonant. So for example dolo would be pronounced with a light tongue on the “d” while Dolo would be with heavy “D”, like in dolus. I will provide the story translation into English at the end while attempting to preserve the richness of what it would sound like when told in the vernacular language. The story for all I know is made up. However Mkhulu[4] Village does exist, it is my village and so does the Group Village Headman Mkakabanthu[5] as well as Traditional Authority (T/A) Mtwalo.[6] Blantyre is the main commercial city in the South of Malawi. In Mzimba, and where I Come from, usually English names are not pronounced the English way. So for example my own father was named George when he was selected from Mzimba to attend Secondary School in Blantyre. His own mother could not pronounce George and called him Joroji. So in this story Samson is pronounced Samusoni.

Setup up of the story
So Dokiso trekked all the way from Mkhulu Village, Group Village Headman Mkakabanthu, T/A Mtwalo in Mzimba and visited his brother Samson in the suburb of Manja in Blantyre. He closely observed what his elder brother was doing and after a month he returned back home where he told his peers this story:

Banangwa, Samusoni ni munyathu yayi; Samusoni ni munthu! Ho! Mwini tauni Samusoni! Ni shasha Samusoni; mungafikako? Mungamkhwasa? Yayi, ni Dolo mwa zina lake, mwana wa muBaiBulo.

Mbwenu wakufika pa window la banki inyakhe; wakuwaphalila waka kuti, “Ine Samusoni nafika ine” mbwenu chinthu chinyakhe chikumupa vindalama! Nikuyowoya ma alovelatu, not za bweka-bweka cha!

Tilute ku golosale inyakhe ikulu, wenecho wakuti Shopwell; tanyamula vikatundu mula, iye wanyamula, nane nanyamula, tikududuza mu magaleta walimwenemumo. Kufika pakulipila, mbwenu Samusoni wakulemba waka kalata kuti “Ine Samusoni nangwiza pano”. Mbwenu msungwana wakutchena chomene, wakutowaso not vinyakhe ivi, wakuti jumphani. Ine ha, not even Chilembwe m’moza kuwapo?

Mbwenu Samusoni wakuluka mula wakuyimba nyimbo yakhe ya soja, ine shah, Samusoni ni Dolo chomene. Bulantaya yose ikumumanya. Ndipo nimuphalilani inu mose, na ku Bulantaye; zindaba zikuwa za Samusoni, mwenecho tauni. Magolosale na mabanki wose wakumumanya. Bigi mani mukulu chomene Samusoni!

Kweni banangawa, chimoza, Samusoni ni mtchisi, ha! Kugeza cha! Mwezi wose nikamutcheranga pa khomo la kwaku gezera. Munthu kuzako cha! Kugeza cha, kweni wakutuluka wavwala suti yake ya Piyere. Ukuti Piyere ni vichi? Ni suti yapachanya chomene, iyo wakuvwala pulezident, suti yamakopala ache, ungaiyigula iwe, pali wangaigula kuno? Nilekani nimphalireni nkhani yose, ndinamale. So, wavwala piyere, wakukhala pa thebulo kurya masumbi wake para, ma soseji na tchipisi chake apo; mbweno uyo; vuvumu wakuntchito pa galimoto. Kugeza cha!

The translation
My friends, Samusoni is not our friend,[7] he is the man! Yo! Man about town is Samusoni! He is the master, he is on another level, you cannot even get there, do not even attempt! Can you even touch him? Oh no, he is the consummate man of the town, just as his name, just like in the Bible.

We arrive at a window at a certain bank, he just tells them that “I am Samusoni, I am here” and immediately a certain thing just gives him money, lots of money! I am referring to aloe vera[8], not pennies!

We go to a certain big grocery, the owners call it Shopwell[9]; we carry groceries, he carries some, I carry some, wheeling some strange vehicles.[10] We get to the cashier, Samusoni just writes a note that “It is me Samusoni, I was here”. Then the well-dressed girl at the till, very pretty too, not like some of these local girls, says you can go ahead. I say, how, not even one Chilembwe[11] being paid?

After that Samusoni goes out of the shop singing his (popular) tune by Soldier[12]. I say, Samusoni must indeed be a king here. The whole Blantyre knows him. I am telling you, the whole Blantyre is full of stories about Samusoni, he owns the town. The groceries and the banks all know him. He is a big man[13] Samusoni. He is the big man.
But one thing folks, Samusoni is unhygienic! Eish! He does not bath! The whole month I was there, I was checking the bathroom door (to see which time he had his bath). The man never went into the bathroom! He would just get out (of his bedroom), dressed in his Pierre[14] … You ask what Pierre is? It is a top notch suit, worn by presidents, very expensive, can you even afford it! Is there anyone who can afford it here? But let me finish the story, he is dressed in his Pierre, sits on the table eating his eggs with sausages and chips and after that vrooom! Of he goes in his car. Having had no bath! Ah!
Indeed Dokiso may have been perplexed with the operations of an ATM machine, payment by cheque, but how was he to know that in town we have self-contained bedrooms!

Payment System? 
So how is this a story of the modern payment systems. Well I am currently doing research of payment systems and whilst thinking about the impact of new methods of payment systems on people in the village, I recalled this story.

Simply put, if we remove the last part about having a bath in his master bedroom which is en-suite, the whole story is indeed one of the shocks of a modern payment system to an unsuspecting villager. Dokiso is confronted with an Auto Teller Machine (ATM) machine for the first time. He has no idea what it is. He has never seen one. To him, the only payment system he knows is cash. You transact in cash. You either have the cash or you do not. So the ATM presents a challenge to Dokiso. He does not know that the ATM is actually linked to Samson’s account and that Samson is only accessing his own money.[15] He does not know that he is dealing with an electronic payment system. He exaggerates what actually happens because he is not close enough to see (as does happens when someone is withdrawing money from an ATM machine). In his view the machine has just given his brother money. Welcome to the electronic payment system Dokiso!

Secondly when his brother goes to shop, he does not pay with his plastic card, but chooses to pay using his chequebook. To Dokiso this is something he has never come across. Paying by cheque? What is that! To him you pay for goods with money in the form of cash. Nothing else will do. Like in Mkhulu is simple. Cash is the means of payment. If you do not have it, you you cannot get the goods you want. You must exchange goods with cash. In his mind, he envisages that Samson must be a certain powerful well known and well-connected person that he can just issue a note and get things. His mind cannot process this. He does not fully understands what Samson is doing by writing on the cheque and signing it and to him it is just like any other paper. And yet this is what exactly happens with a cheque, it is an IOU note of sorts, a promise to pay, money in another form. Dokiso does not know that he is dealing with a payment system that involves a cheque clearing house. He does not know that this paper is actually a negotiable instrument. Welcome to the world of the cheque payment system Dokiso!

[1] https://www.facebook.com/james.mbingwa
[2] Nkosini is the place of the Inkosi or ‘King’s place’
[3] Lizulu comes from kuliZulu meaning “where Zulu is”.
[4] Mkhulu literally means ‘big’ in Ngoni/Zulu and reflects to a village that is deemed the ‘big’ village in a group of villages. Usually in a polygamous situation, this is usually the where the senior wife of the local chief stays.
[5] Mkakabanthu means ‘binder of people’ or ‘uniter of people’. It comes from two words kukaka meaning to bind or tie together (it can also mean to arrest) and banthu, a well known Banthu phrase for people.
[6] Actually called Inkosi Mtwalo, one of the chiefs under Inkosi ya Makhosi Mbelwa V.
[7] The phrase does not mean literally that; rather that Samusoni is on another level
[8] Aloe vera is the local name that refers to the highest denomination in Malawi. It is a K1,000 note and is green like an aloe vera plant.
[9] Actually there is one called Shoprite, owned by Shoprite Checkers of South Africa
[10] trolleys
[11] John Chilembwe is the best known earliest freedom fighter who died in 1915 fighting against colonial rule and oppression. He has been immortalised by having his face as the face of all banknotes in Malawi. A reference to Chilembwe is therefore a reference to money.
[12] Soldier is the musical nickname of a famous Malawian Musician Lucius Banda. He once used to sings protest songs as a soldier of the poor. This permanently endeared him to most Malawians, especially during times of oppression and hardship.
[13] Actually the real phrase is an exaggeration which reads “he is a very big man”
[14] Pierre Cardin. Obviously he just overheard the name and did not fully understand what it meant other than that it was a very expensive suit.
[15] Malawi does not yet have a credit card regime, only a debit card one

Thursday, 23 October 2014


Sunduzwayo Madise

We have recently seen a ‘mediasation’ of the law. It started with the live coverage of the Dr Conrad Murray [Michael Jackson murder] trial in the US but nothing could have prepared us for Mr Oscar Pistorius down in Mzansi. By the end of the ‘OP’ trial, almost anyone who cared could venture in a legal opinion of how the state and the defence had performed and how Judge Thokozile Masipa (yeah the now global famous one) had or had not got the verdict right. The issue proceeded to the circus that was the sentencing; a ‘mini-trial’ within a trial. Coming back to Nyasalandy, It was therefore expected that the sentence imposed by the High Court in Republic v Senzani would result in a furore and a backlash against the Anti-Corruption Bureau (ACB). Its Deputy Director, Reyneck Matemba had to give some justification to a largely dissatisfied media. This article makes an attempt to show that maybe the criticism against the ACB and Matemba may be unwarranted. It argues that there is blame, yes, but maybe it lies elsewhere.

Treza Senzani was charged with theft of public funds under the [in]famous Cashgate scandal. She pleaded guilty to stealing K63 million ($150,000) as well as money laundering. She was given a custodial sentence and became the first person charged under the Cashgate affair to be jailed. The High Court imposed the following sentence: 
  • 9 months imprisonment on the charge of theft 
  • 3 years for money laundering

These sentences are to run concurrently (side by side). This means the maximum she can serve is 3 years. What she will actually serve maybe less than this and she may be entitled to up to a reduction of a third of the sentence for ‘good conduct’. All sentenced prisoners in Malawi have this option open and available to them. But she has appealed sentence, so maybe this may not be the last we have heard of the matter.

The public outcry came after people thought that Senzani’s sentence was no more than a ‘slap on the wrist’ and the prosecution was labelled inept for charging her with common theft. [1] It is reported that even the presiding High Court Judge Ivy Kamanga wondered why she was not charged with the more serious offence of ‘theft by public servant’.[2] Matemba’s argument that this was ‘because she still could have dipped her fingers in the public kitty even if she was not a public servant’ was described as ‘balderdash’. [3]

Initially the anger was directed at the High Court and the presiding Judge, Ivy Kamanga. Then as facts unfolded, the hot stream of anger took a shift and moved on to the ACB and its Deputy Director, Reyneck Matemba. It is clear that the public wanted Senzani to be charged with theft by public servant, which ensures upon conviction that the offender spends quite a long period of time being a ’compelled guest’ of Malawi’s gaoler.  What is not clear is whether the public actually knew the difference between theft and theft by public servant or simply wanted a long jail sentence as a deterrence. Now herein lies the problem. Theft, also called, simple theft (simple as plain not literally as simple since there is nothing simple about the Cashgate affair) and theft by public servant are two different species of theft. When a public servant steals from her employer (the public); that does not automatically translate to theft by public servant. ‘Theft by public servant’ is a legal term for a specific type of theft. If this were understood, maybe, just maybe, the anger directed at the ACB, Matemba and Judge Ivy Kamanaga would have been directed to where the problem actually lies.

In our law, theft is defined as the taking of property that belongs to another which is capable of being stolen.[4]  A person is said to steal something if the person fraudulently and without claim of right takes anything capable of being stolen or fraudulently converts to the use of any person other than the owner, anything capable of being stolen.[5] The act of theft is completed when the thing moves from its place or origin or rest or becomes movable. Any inanimate movable property as well as some animals are capable of being stolen. This means one cannot steal a person. One cannot also steal a house unless it is a mobile house! As we all know, money is inanimate and is therefore capable of being stolen. Everyone knows this.

The maximum general punishment for theft is 5 years.[6] This means Courts can impose lower sentences but can never exceed the 5 years even if they wished to. But even the 5 years is usually reserved for the worst offenders. In law the usual saying is that the worst offender is not yet born. The reasoning is simple, suppose you sentence a person who has stolen X amount to the maximum 5 years; what happens when the next person steal X +1 or even 2X, 10X, 100X or indeed even much more? Indeed the Court may take into consideration the amount or value of what was stolen but can never exceed the maximum set up by the law.

By comparison, a person found guilty of robbery can spend up to 14 years in jail.[7] Attempted robbery leads up to 7 years involuntary confinement at one of the jails of Malawi.[8] Robbery is defined as stealing with violence (actual or threatened). On the other hand, ‘housebreaking’ and ‘burglary’ are punishable with ‘death’ or life imprisonment![9] Yes, that is what the law says although it would be ludicrous for any Courts to mete out this punishment unless another offence was committed in the process, such as murder. In any event automatic or mandatory death sentence was held by our Courts to be unlawful and unconstitutional.[10] This does not mean that a death sentence cannot be pronounced by a competent court (in this case a High Court or above) but it means the Court must examine the circumstances and if it deems it fit, it may impose the death sentence. On the other hand stealing postal matters lead to 10 years[11], cattle (including pigs, goats or an ostrich!) is 14 years.[12]  And yes, if one steals a bicycle (njinga ya kabaza) then the sentence is 10 years![13] Once again these are the maximum.

This survey has deliberately been provided so that the public can begin to identify where the problem lies and direct their anger and attention at the problem.

Theft by public servant
The law says that if a person employed in the public service has by virtue of that employment received or has had in her custody or under her control any money or other property, and such person has been unable to produce to her employer such money or other property or to make due account therefor, then unless she satisfied the court to the contrary, she be presumed to have stolen the money or other property.[14]

Therefore to prove theft by public servant, 4 elements must be proved by the state:
a)      The defendant was employed in the public service.
b)       The defendant must have committed the offence of theft
c)      The defendant must have been in custody of the thing stolen or the item must have come into her possession by virtue of employment.
d)     The defendant must fail to produce the item or give a reasonable explanation of its whereabouts to her employer.
Theft is assumed but it must still be proved. The punishments are on a graduated scale, but anything exceeding K80,000.00 leads to a maximum of 14 years imprisonment.[15] However this does not apply to a situation where the person has made a full restitution (repaid the money or thing in full).[16]

If we look at the elements of this offence, it means that apart from proving theft, the State must also prove other things. Now granted, proving that one is employed in the public service may be said to be the easiest (though not always). However the tricky part is where the State has to prove beyond reasonable doubt that the accused was in custody of the thing stolen, or it came into her possession by virtue of employment. That is where the problem lies. If we look at the Cashgate cases, we see that it is not only public servants that are being accused and tried. This means that the people alleged to have stolen the money did not do so by virtue of being public servants. It is on this basis that the charge of simple theft would be a preferred one.

It may be argued that as a Principal Secretary, Senzani was a controlling officer and therefore the money was in under her ‘custody’. However the law says criminal liability must always be interpreted narrowly and not broadly. What this means is that it is not so straight forward that the money came into her custody or possession because she is a public servant. And her lawyers could have used the cases of the other non-public servants to prove their point.

The decision to prosecute is never an easy one. The State must consider not only the charges but the likelihood of getting a conviction on a standard of proof beyond reasonable doubt. In Dzimbiri and Mhango v The Republic the Court made this very clear by saying: ‘it is settled law in this Republic that in criminal cases the State is duty bound to prove each and every element of this offence and the standard required is beyond a reasonable doubt.’[17] It means the duty never shifts to the Defendant; it remains with the State throughout the trial. It is what Lord Sankey once referred as the ‘golden thread’ running through the English Criminal Law System.[18]

In this case, theft was proffered because, in my opinion, it was deemed a safe charge which was more likely to result in a conviction. Others may also argue that why the State did not use theft by public servant as the main charge and simple theft as a minor charge. Once again the Defence would have argued that this was a bad framing of the charges. The technical term used is bad for duplicity. It is like charging the same person twice from the same facts. The Defence would also have argued that the State was fishing around. This is a technical term to mean thye State was trying just to cast a blanket net hoping to catch the Defendant somehow. The Courts, and the law, generally do not like this. The State has at its disposal all the state machinery and coercive power, including powers of arrest and prosecuting. The law therefore requires the State to be specific about exactly what the Defendant is being charged with. In this case therefore, the State opted for what I consider the safe charge. The theft by public servant, could in my view have been messy. That does not mean it may have automatically been dismissed by the Court. Each case is decided on its own unique set of facts.
Now if I may be allowed to digress and go back and compare with the Oscar Pistorius trial. In that case, the State was accused of being vindictive and wanting to get at Oscar. The legal opinion generally was that there was insufficient evidence to charge him with first degree murder because one crucial element was missing: intention. In the end, instead of getting Oscar at the more serious charge of murder (not of the girlfriend but of whosoever was in the bathroom), the State ended up with a rotten egg in its face with Oscar being convicted only for culpable homicide and the public feeling as if the Defence had won (in a way, they did too). I for one argue that had the State in that case approached the matter differently, the result would also have been different. They wasted precious resources on things they knew they could not prove. And Courts do not take kindly to such approaches.

But let us return to our case.

Money Laundering
Senzani was also charged with money laundering. The maximum sentence for money laundering is 10 years or a fine of K2,000,000.00.[19] For whatever reason, there seems to be less outcry regarding this charge. Yet compared to theft, money laundering is a more serious offence. The Court has wider latitude between just imposing a fine (up to K2,000,000.00) or sentencing a person to up to 10 years. In fact it is from this charge that the 3 years comes from. Now ideally when there is an option of a fine, the Court will usually impose the fine unless there are aggravating circumstances that call for a custodial sentence. The fact that the Court imposed a custodial sentence reflects the Court’s view about this particular case.

Sentencing considerations
The public has expressed outcry that thus case sets up a bad precedence on the others. The answer is yes and no. Yes because it indeed provides a framework of comparison. But no because precedence in criminal law is minimal, it does not mean much. This is because each case is taken to be different and present its unique set of facts. At sentencing each defendant’s unique set of facts and circumstances are taken into consideration by the Court. We saw how the OP sentencing went on for a week, each side trying to convince the Court about their submissions. Factors that the Court takes into consideration can be sentencing enhancing (aggravating) or sentence reducing (mitigating). For example, it would be odd for a Court to sentence a Defendant to a prison sentence, an extended one at that, if there was unrebuttable evidence that the accused was terminally ill. At the point of sentencing, the Court must consider what is just to the Society (represented by the State) as well as to the Defendant. The sentence must be just to both the Defendant and Society. And yes, Society may be at times called to be merciful even to a Defendant whose conduct was callous. That is what sentencing calls for; justice within the law.

In this case, Senzani pleaded guilty thereby saving the Court’s time. The Court has to take this into consideration as well as other factors personal to her in sentencing. The Court cannot ignore this. But the Court also took into account the impact of the cashgate affair on the society. After weighing and balancing the issues the Court came up with the sentence it imposed. Does it mean it is the right sentence? No sentence is right or wrong just like that. It is subjective to whose view point it is. For example, although Society feels Senzani has been given a golden parachute of sorts, she herself feels hard done and reports indicate she wishes to appeal against her sentence. The State also has the option to cross-appeal against her sentence if the State feels it is too lenient. Then the Supreme Court will decide the final punishment.  That is justice according to law. Society may feel aggrieved but we must all remember that even the Defendant, is a member of society, and what society ideally looks for is to ensure that the Defendant is rehabilitated back into a productive member of society unless this is not possible.

Therefore, in my view, the sentence imposed by the Court is within the law and what would be imposed in such cases. Whether it is just or not is another matter altogether. And we are all entitled to our opinions. However I do not take issue with the sentence, since this was a direct consequence of the charges that were proferred.

Is the Public justified in being angry? I would say it is. However I hope I have attempted to argue that the anger should not be directed to the ACB or Mr Matemba or even the Courts. So who should bear the blunt of the Public’s anger? My answer is that it is the law. I deliberately compared several provisions to show how our law is so out of touch with reality. If theft of a bicycle can be treated as a more serious offence than theft of millions/billions or even money laundering (which has an option of a fine) then we clearly have a problem in our hands. If the public wants theft of public coffers to be treated different then it needs to shout out loud and ensure the law reflects this. If the public wants public offers to be punished more, then push for reform, but bear in mind that under our Constitution, you may not discriminate. Indeed similar provisions in other law which tended to harshly punish public servants have been successfully challenged on Constitutional grounds. Another problem is that we have our penal laws scattered all over and yet we have the Penal Code. A Penal Code should ideally contain the substantive criminal law provisions. That is why it is called a Code. It should be a one-stop shop for criminal law. It is appreciated that some provisions may have to be catered for in specific provisions. But there is nothing against having a Code which includes within it all the other penal law as parts within it.

So what needs to be done? In my view, the public, if it feels aggrieved by this, should move for a change of the law. This can be done via our Members of Parliament, Civil Society Organisations and other lawful means. A message needs to be sent that the lawmakers that the penal law in our country is out of step with societal expectations. Reforming the law is not something that can be done overnight. But without agitation or triggering effect, no reformation may take place.

For now, as the ACB states that we should expect more arrests, the public needs to brace itself that in relation to the Cashgate affair, most likely the people arrested may be charged with theft and/or money laundering. And even if the law were to be changed today, it cannot operate retrospectively. Unless the person charged is found to have been custodian of public funds in the narrow sense, then theft by public servant may kick in. But like I have said already, the decision to prosecute, and which charges to proffer is usually made after a careful analysis of the evidence. If the law has loopholes, we should not blame the State and the Courts.

But what about the ACB and other prosecuting organs? Should they be content with being safe and proffering safe charges? I think not. I think there is need to get out of the comfort zone and test the law. After all, the law is a jungle – you just do not know what you will find in there! I would challenge the ACB and the State to consider a test case. Personally I feel if properly planned and thought out, a case can be made to have controlling officers tried and if found guilty convicted of the charge of theft by public office. I also believe the same may apply even to the other public servants. The fact that others being non-public servants have also dipped their fingers in the kitty should not dissuade the State. It may be messy but it is worth the try and it is doable. In any event, we need a determination by the Court to make us move forward. And who knows what the Courts will decide! The State machinery also has an arsenal of various other provisions available to them. These include misuse of public office[20], possession of unexplained property.[21] Fundamentally these provisions carry a maximum prison term of 12 years. And yes they can be charged with the other theft offences without the Court barking at the charges being badly framed or embarrassing[22] to the Defendant. And if I may add, if the ACB were to seriously consider possession of unexplained property alone, it may prove a safer pair of hands because it is trite that in Malawi many public servants actually do live well beyond their legitimate sources of income! But that is a story for another day.

[4] Section 270, Penal Code, Chapter 7:01 of the Laws of Malawi.
[5] Section 271(1), Penal Code.
[6] Section 278, Penal Code.
[7] Section 301, Penal Code.
[8] Section 302, Penal Code.
[9] Section 309, Penal Code.
[10] Francis Kafatayeni and others -v- Attorney General of Malawi (Constitutional Case No. 12 of 2005).
[11] Section 280, Penal Code.
[12] Section 281, Penal Code.
[13] Section 282(h), Penal Code.
[14] Section 283(1), Penal Code.
[15] Section 283(4), Penal Code.
[16] Section 283(4)(a), Penal Code.
[17] Dzimbiri and Mhango v R, Criminal Appeal No. 6 of 2012 (HC, Mzuzu). The statutory authority for this is Section 187(1) of the Criminal Procedure and Evidence Code, Chapter 8:01 of the Laws of Malawi.
[18] Woolmington v DPP [1935] UKHL 1.
[19] Section 35, Money Laundering, proceeds of Serious Crimes and Terrorist Financing Act.
[20] Section 25B, Corrupt Practices Act
[21] Section 32, Corrupt Practices Act.
[22] Embarrassing in law does not quite carry the same meaning as in everyday English. It can simply be translated as causing the Defendant to be confused or baffled as to exactly what to respond to.