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.
[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.
[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.
