The State’s case: In the months of June to August 2013, Maxwell Namata stole the sum of K14 439 966.50 being the property of the Government of Malawi. Second, during the same period, Namata, had in his possession the sum of K14 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 January 21 2015, Namata was convicted of, first, the charge of theft of K14 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 December 12 2016 and delivered on March 23 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 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 K14 439 966.50 and another for K9 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 zinabedwa. 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.
* Chikosa is a lawyer & consultant at The Mizumali Foundation. He holds a PhD in Law from The University of Warwick in Coventry, England.