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.
[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.

Source: http://sunduzwayo.blogspot.com/2014/10/in-defence-of-matemba-and-acb-case-of.html