The
State’s case: In the months of June to August, 2013, Maxwell Namata stole the
sum of MWK14, 439, 966.50 being the property of the Government of Malawi.
Second, during the same period, Maxwell Namata, had in his possession the sum
of MWK14, 439, 966.50 when he knew or had reasonable grounds to believe that
the said moneys were proceeds of crime. The High Court of Malawi agreed with
the State. On 21 January, 2015, Maxwell Namata was convicted of, first, the
charge of theft of MWK14, 439, 966. 50 and, second, the charge of money
laundering in relation to the said moneys. The High Court sentenced Bambo Namata to three years imprisonment
on the charge of theft and five years imprisonment on the charge of money
laundering. The sentences were to run consecutively. In total, Bambo Namata was to spend eight years kunzande. It was a moment to savour on
the part of the State and all disgusted with the plunder of Government moneys
within the prism of the infamous Cashgate scandal.
Bambo Namata was
dissatisfied with the judgement of the High Court. He appealed to the Supreme
Court of Appeal against both the conviction and sentence. In a judgement dated
12 December, 2016 and delivered on 23 March, 2018, the Supreme Court of Appeal
acquitted Bambo Namata of the charge
of theft and, consequently, the charge of money laundering fell away. If there
was no theft there cannot be anything to launder. In a 56–paged judgement
delivered by Justice of Appeal Lovemore Chikopa (with Justices of Appeal Rizine
Mzikamanda and Anthony Kamanga concurring), the Supreme Court of Appeal has
laid down the law as follows: Criminal law and procedure in Malawi must apply
subject to the Constitution of Malawi which the is the supreme law of the land.
Second, the prosecution bears, at all times, the burden of proving its case
beyond reasonable doubt. It is never for a defendant to prove his or her
innocence. Proof beyond reasonable doubt is not about certainty. No. it is
about a measure of a high degree of certainty. Third, the exercise of the right
to remain silent is not an indication of guilt. Fourth, where a defendant gives
evidence, the consideration by a trial court should never be a binary of
Truth/Falsity. The consideration must be: ‘Is the defendant’s story true or
reasonably true?’ Fifth, a trial court is not an interlocutor in criminal
proceedings. They are a referee applying the rules of the game as appropriate.
And finally, the Supreme Court of Appeal stated that an appellate court must
interfere with a sentence only if it is manifestly excessive, manifestly
inadequate or it is wrong at law.
The
facts in Bambo Namata’s case are as
follows: Two cheques, one for MWK14, 439, 966.50 and another for MWK9, 739,
154.29, were issued by the Government of Malawi (through the Ministry of
Tourism) in favour of a company called Cross Marketing. Both cheques were
collected by Bambo Namata, handed
over to an employee of Cross Marketing, deposited into a bank account held by
Cross Marketing, cashed and the khusa
was then shared by Bambo Namata and
an employee of Cross Marketing.
In
the High Court, the State had called a witness – who was a director in the
Ministry of Tourism. This witness told the Court that there was no contract
between Ministry of Tourism and Cross Marketing for anything. The two cheques
were not authorised by any bwana in
the Ministry. In essence, the two cheques anabedwa.
The High Court, among others, relied on the evidence of this director and
proceeded to convict Bambo Namata.
The
Supreme Court of Appeal was less than impressed with the evidence of the
director from the Ministry of Tourism. The Supreme Court noted that the court
record of the trial court does not portray the director as a confident witness
who provided definitive evidence as to what happened or did not happen. The
Supreme Court disagreed with the High Court that the director’s evidence could
then lead to the conclusion that Cross Marketing did not have a claim of right
to a cheque from Ministry of Tourism. The Supreme Court noted that while the
director referred to a record of all contracts issued by the Ministry of
Tourism, this record was in fact never produced in court. Zinachitika za m’maluwa; no umboni;
no evidence.
There
are a number of lessons to be taken home from the judgement of the Supreme
Court pa m’ndandu wa Bambo Namata. I will share two here: First, the Supreme
Court has said – emphatically if I may add – that courts should not do the
prosecution’s job. Courts should not be interlocutors. One flaw in the Namata
case is that there was no evidence before the High Court of ‘fraud’ in the
generation of the cheques. The second lesson is that the criminal justice
system in Malawi – through public finance management laws – needs to re–think
what public moneys is. I belong to the school of thought (as demonstrated in Republic v Caroline Savala) that under
Malawi’s public finance management laws, public moneys do not cease to be such
simply by the accident of a deposit slip. But this is by way of interpretation.
Perhaps the law should say so in clear, unequivocal terms.
So;
if the State has not proffered evidence of ‘fraud’ in the generation of
cheques, the Cashgate prosecution that has been underway for the last three
years or so is at the risk of collapsing.
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