Samusoni ni Dolo (SAMSON IS THE MAN: THE STORY OF A MODERN PAYMENT SYSTEM)

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).

Background

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!

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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!

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[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

IN DEFENCE OF MATEMBA AND THE ACB: THE CASE OF REPUBLIC VERSUS SENZANI

Sunduzwayo Madise

INTRODUCTION

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.

PUBLIC OUTCRY

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.

ANALYSIS OF THE LAW

Theft

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.

CONCLUSION

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.

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[1] http://www.nyasatimes.com/2014/10/19/raw-deal-on-malawi-cashgatress-tenthanis-muckraking-on-sunday/

[2] http://timesmediamw.com/cashgate-court-sentence-faulted/

[3] http://www.nyasatimes.com/2014/10/19/raw-deal-on-malawi-cashgatress-tenthanis-muckraking-on-sunday/

[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.

MISREADING KABWILA: THE CASE OF ‘TRANSFERRED’ 3 MBC EMPLOYEES

By: Sunduzwayo Madise

INTRODUCTION

When a judge delivers a judgement, he gives reasons for his decision and then says other things by the way (mang’ombe). In Legalese the reason or the rationale for the decision is called ratio decidendi (commonly referred to as ratio). It is a Latin word, nothing much to it. It is possible to have more than one reason for the decision (and this can sometimes be confusing as to which reason exactly is ‘the dominant reason’). It is also possible sometimes to read a whole judgement and fail to pinpoint a ratio or the exact ratio for the decision. Simply put, where you have a judgement without a ratio, it reflects on the judge making the decision. The Judge will also say other things by the way, in the same way that when telling a story you usually do not go straight to the point, you lay out the foundation, bring out permutations etc. These things said by the way are called obiter dicta (or just obiter). Now when we say a particular case is an authority for a certain proposition of law, what we mean is that it is the ratio in that case that is the authority, not the whole case or what is contained in the judgement or how it affected the parties in that case.

In Jessie Kabwila v Electoral Commission,[1] Justice Mwaungulu held that the Electoral Commission had erred to reject Dr Kabwila’s candidature because there was evidence that she was on leave of absence. The Judge’s reasoning (the ratio) was that “there was no need, even though she was in public office, for her to resign because, at the time of submission of her papers, she was not holding or acting in the public office, her contract, based on the conditions of service of the contract, being terminated by the kind of leave of absence allowed by her employer.”[2] In other words the principle in Kabwila (what the case stands for) is that a person who is on leave of absence cannot be disqualified from standing for elected office as a member of parliament because she is not deemed as holding or acting in a public office.

But then the Judge went on to say other things which were not the basis for his reasoning to decide the case. For example the Judge went on to say that “academic staff in public universities is in civil service and in public office.”[3] In other words the Judge was saying in his view, lecturers in public universities are civil servants as well as public servants. Now I have already expressed my reservation against this view and strongly feel that the Court erred here – see ‘Case note: [Dr] Jessie Kabwila v Electoral Commission’.[4]  Let me just illustrate how this view leads to an untenable conclusion. The Judge argues that academic staff are civil servants. But what about non-academic staff? What about the principals of the colleges? What about the vice chancellor and his deputies? Trying to isolate staff in this manner leads to an absurdity and just shows that the initial view is erroneous. However this article is not to reopen this debate, in my view the debate is one for another day. What is important however to recall in all this is that the issue about Dr Kabwila or academic staff[sic] being civil servants was not the one which decided the outcome of the case. All this was obiter. What decided the case, at the fear of being repetitive, was the fact that a person who is on leave of absence is not deemed an employee so as to debar that person from contesting the elections. It is likely that in future other judges may extend this ratio to apply outside electoral matters. The Judge also made an interesting observation, extending his obiter and said “[m]oreover, as a Civil Servant whose functions are not directly concerned with the formulation and administration of the policies of government, she is exempted from resigning in order to participate directly in political activities.”[5]

In other words the Judge is saying

1. Dr Kabwila is a civil servant and a public servant. However even though she is a civil servant she does not have to resign to contest in a parliamentary seat because she is exempt because of the nature of her duties (does not directly deal with formulation and administration of policies of government).
2. However, notwithstanding the above view, Dr Kabwila at the time of lodging her nomination papers was on leave of absence. Since she was on leave of absence, she was no longer an employee of the University and therefore not holding public office.
3. Therefore Dr Kabwila was wrongly disquieted because she was on leave of absence.

It is therefore clear that if the question before the court was of a person who was not on leave of absence, then the issue of being a civil or public servant or not would have been the main issue for the court to decide. However in this case it was not. The main issue was whether a person (working for a public institution) who proceeds on leave of absence qualifies to stand as an MP. And the answer to that was in the affirmative.

MISREADING KABWILA

So I hope it is now clear what the case of Kabwila in law stands for and what it does not. Just for clarity, Kabwila is not authority for the proposition that public officers are civil servants.

Recently Government announced that 3 members of the Malawi Broadcasting Corporation (MBC) were to be transferred to Government ministries in various capacities.[6] Now MBC is a statutory body (parastatal) created under a statutory instrument (Communications Act which repealed the MBC Act and reconstituted MBC as a statutory body in Part IX). There has been debate around these transfers with others saying it is justified because some of them did not deserve to have been promoted at MBC in the first place. I take no sides on this debate and I only write as a person who has extensive experience in labour and industrial relations. However it would be naïve for me to pretend to be blind to the fact that MBC staff have been used as political pawns or balls in a game of political ping-pong. One would hope that others not only at MBC but in the public service would have learnt from all this. Sadly no, it will not be. What ‘government’ seems to forget however, is that it is not the Attorney General who gets sued when MBC staff are ‘fired’ but MBC itself. And the recent pay-off to Bright Malopa is still fresh in the mind.[7] Now granted, some of the staff at MBC are willing victims. Others actually thrive on politics. How sad, especially when it involves a public mouthpiece. However even in the midst of all this mist, there is still need to ensure that labour rights are respected. Arguing that person such-such should not have been appointed or promoted in the first place does not nullify his labour rights should you decide to terminate his services or treat him unfairly.  However the debate about freeing the public broadcaster and making it truly independent has been made and it behoves on the powers that be to walk the talk they made. Once again this view is in no way a reflection or otherwise on the 3 employees concerned. My interest in their case if purely from an employment law and industrial relations perspective.

One thing bothers me about MBC though. How are people recruited in this organisation? It seems people do not apply for jobs but just get appointed, and usually by government? How is this possible? Let us recall how a statutory body like MBC is structured. Junior and some senior staff are recruited by Management. The management itself is recruited by the Board. The Board is appointed by the President as head of government. Therefore any control that government wishes to exert on MBC must be through the Board. It is the Board that makes decisions in its meetings. Any decision therefore to recruit anyone not made by the board or management is ultra vires and void ab initio. It is outside the powers of anyone outside MBC to appoint or fire an employee of MBC. That decision at law is treated as if it was never made in the first place, void ab initio. If MBC however ‘embraces’ this unlawful decision, the result are the many lawsuits that we have seen at MBC. What a sad state of affairs.

In the first place employees of MBC are not civil servants. Oh yes someone may wish to extend the Mwaungulu obiter in Kabwila to argue that if the Judge said lecturers of public universities are civil servants, then the same applies to broadcasters from the public broadcaster. That is what I term Misreading Kabwila. MBC employees may be public servants but they are not civil servants. They are recruited under terms of employment of MBC, a statutory body which has a Board of Directors. It is of no consequence that MBC is a statutory body set up by government. I am sure that there is a reason why a person applies to work at MBC and not at Ministry of Information or indeed any other organisation and vice versa.

Section 31 of the Constitution provides for the right to fair labour practices. In Kalinda v Limbe Leaf Tobacco Company Limited[8] the Court emphasised that Section 31 of the Constitution is a fundamental law, a general law. The Labour Relations Act 1996 and the Employment Act 2000 are therefore pieces of legislations that may be said to operationalise the right to fair labour practices provided in section 31 of the Constitution.

Under the Employment Act 2000, every employer is required to give to each employee a written statement of particulars of employment.[9] We call this a contract of employment. This means every employee enters into a specific contract of employment with his employer. This includes such important details as remuneration, allowances, hours of work, leave days, benefits etc.[10] It also means that the contract cannot just be terminated willy-nilly. Sections 28, 29, 57 and 58 of the Employment Act provide for terminations that are lawful otherwise the termination is deemed unlawful.

However the law does envisage that there may be instances where instead of terminating the contract, the contract can just be transferred. Section 32(1) provides that “no contract of employment shall be transferred from one employer to another without the consent of the employee.” Therefore consent of the employee is paramount in a transfer of a contract of employment. The only time when the employee’s consent does not have to be obtained is when there has been what is technically referred to as a merger and acquisition or a transfer of a business[11] or during insolvency or winding-up.[12]

So let us come back to the case of the 3 MBC employees who have been transferred to Government Ministries and Departments. Looking at the law, unless these employees were consulted prior to their transfers and they did consent to the transfer, such transfer offends the law and amounts to unfair labour practices. In fact what it means is that MBC as the employer has unilaterally terminated the contract of employment. And unless MBC can satisfy section 28, 29 and 57 of the Employment Act, the termination is bound to be held to be unfair under section 58. The said employees can also claim that they have been constructively dismissed.[13] This demonstrates a worrying a mentality by ‘government’ of treating all public employees as if they are civil servants; misreading Kabwila. But then who is this ‘government’? No one should lie to us that government is one big machine that makes these decisions. No these decisions are made by flesh and blood, people like you and me. There are certain people who clothe themselves as government who make these decisions. But unveil the cloth and you unmask the decision makers. These are the ones I am worried about. And it would seem that either these people have been there for the past 20 years or have passed on their tradecraft to their successors. One may be inclined to blame politicians in all this, but the reality is that usually the politician may just express a view which the willing civil servant grabs with both hands and executes as a command with the utmost zeal! The Vice President and his team tasked in reforming the civil service have a lot of work to turn around this mentality. I assert that the true puppeteers are not even the politicians.

SO WHAT SHOULD HAVE HAPPENED

The first thing of course is that the employees should have been consulted and their consent sought. It is noteworthy to state that refusal to transfer cannot be a ground for dismissal. Such a dismissal would be unfair. From the articles that came out in the papers, this seems not to have occurred. The impression given is one of a government directive. It is a directive but is it legal? Is it valid under the law? Can it stand judicial scrutiny? Is the government not under section 5 of the Constitution supposed to ensure all its acts are valid and in consonant with the law? What happened to rule of the law? Should there be selective application of the rule of law doctrine?

The other more open option is what is termed as secondment. This happens all the time, employees from parastatals and the private sector go on secondment usually to head government departments or ministries. During the pre-1994 Constitution era, it was also common to have civil servants being seconded to head troubled parastatals.

However what has happened at MBC is just a reminder. These things have been happening for a long time. We have heard of cases where CEOs of parastatals are rotated. Clearly this cannot be right unless the person concerned consents to this ‘rotation’. In other words it cannot be at the whim of politicians or those calling the shots at statutory corporations or in government. If a person X applies to be CEO of organisation Y, there may be reasons why he did not apply for organisation T.

Do we all remember how one Justice Mwaungulu was transferred to become a lecturer of the University of Malawi? Luckily the transferring authority met their match in this case and the transfer died its natural death! But it should not have been made in the first place! We seem never to learn our lessons as a country. Einstein said the definition of madness is doing the same thing over and over again but expecting different results? Well are we not all collectively mad then?

CONCLUSION

The title of this piece deliberately starts with the phrase Misreading Kabwila. Of course I do not for one second attribute the action of government (now or in the past 20 years) to misreading the decision in Kabwila, after all this decision was made just a couple of months ago. I use the phrase as a metaphor to emphasise a point and underscore my objection to playing around with people’s livelihoods in order to satisfy the itches and inclinings of political masters.

By why has this been tolerated or tacitly consented to by all of us and for so long? It is because of the patrimonial politics that still rules Malaŵi. People especially in top jobs want to please the powers that be to safeguard their jobs and achieve security of tenure. So people will work for organisations they did not want just to put food on the table. This is because the formal employment base in Malaŵi is still very small and dominated by the public sector.

But should we sacrifice our labour law rights on the altar of political expedience? Despite having a wonderful Constitution, we as our country are known more for disobeying it. Despite having one of the best employment law regimes, we are better known for tramping down employees’ rights. When will the employees cherish their contracts of employment and be assured of genuine security of tenure, especially in the public service.

[1] Electoral Case No. 2 of 2014, HC, Principal Registry.

[2] Page 1.

[3] Page 22

[4] http://sunduzwayo.blogspot.co.uk/2014/04/case-note-dr-jessie-kabwila-v-electoral.html

[5] Page 1

[6]  http://www.nyasatimes.com/2014/08/01/sumbuleta-to-deputise-tembo-at-mbc-kuntaja-redeployed/

      http://timesmediamw.com/heads-roll-at-malawis-national-broadcaster/

[7] http://www.nyasatimes.com/2014/06/03/malopa-to-get-k62m-pay-from-malawi-govt/comment-page-6/

[8] Civil Cause No. 542 OF 95, HC, Principal Registry

[9] Section 27, Employment Act 2000 (as amended in 2010).

[10] Section 27(3).

[11] Section 32(2).

[12] Section 34(1)

[13] Section 60.