Court sentences under scrutiny

• 3yrs for stealing K63m; Five for K160 550 abuse

What influences court judgements? What is it that magistrates and judges look for to determine sentences for offenders?

These are some of the questions people have been asking on social media and other places in the wake of the recent three-year sentence handed to former principal secretary (PS) for Tourism Tressa Namathanga Senzani after being found guilty, on her own plea, of stealing K63 million (US$151 807) public funds.

Some observers have questioned whether the sentence given to Senzani would really deter others from committing similar crimes.

Whereas Senzani, 50, was given three years imprisonment for the theft of K63 million which is part of the looting of government funds at Capital Hill commonly known as Cashgate, former minister of Education, Science and Technology Yusuf Mwawa was in 2006 sentenced to five years imprisonment with hard labour for using K160 550 (US$386.9) in public funds to finance his wedding reception at a hotel in Blantyre.

On the other hand, a Thomas Phiri from Ntchisi was given a four-year sentence for stealing a goat whose value is about K10 000 (US$24).

In the eyes of laypersons, they expect someone who has abused a bigger amount of money to spend a long time in jail.

Those commenting on social networks conclude that the message being sent by the Judiciary is that: ‘take a risk, steal government money, use it, return it and quickly plead guilty, you will have a lenient sentence.’

Giving a legal perspective, Dr. Mwiza Nkhata, dean of law at the University of Malawi’s Law School at Chancellor College in Zomba, said sentencing of a case is at the discretion of the courts although some considerations are taken into account.

Said Nkhata: “Some of them [considerations] are the offence and its prescribed punishment, circumstances of the offence and offender and mitigation factors. Then, there are others such as age and health of the offender and whether he or she showed remorse.”

Specifically commenting on the Senzani and Mwawa cases, Nkhata observed that Senzani showed remorse for her action, that she did not waste the court’s time by quickly pleading guilty and also repaid the money in question.

“Returning what you stole is key. While Senzani returned [the money], I do not know whether Mwawa did the same. Surely, I do not see any problem with that,” he said.

Nkhata also pointed out that the offence Mwawa was charged with was more serious than the charges levelled against Senzani. Mwawa was charged with four counts of theft, misuse of public funds, forgery and uttering false document whereas Senzani answered the charges of theft and money laundering.

However, Nkhata was not comfortable when it came to the valuation of the money.

He said: “For example, if someone stole K63 million three years ago, the value of the money then and today are not the same. I believe that there should be proper calculation so that the equation of K63 million three years ago is made according to the value of the same money today.”

On the other hand, Blantyre-based private practice lawyer Edwin Banda, noted that the world is focusing less on jail terms and more on recovery of the money or the items in question.

However, Banda said he did not agree with the practice that quickly pleading guilty should warrant one a lesser sentence.

Said Banda: “Why should you get a lesser sentence after pleading guilty because you cannot defend a case? To say that you did not waste the court’s time should not be reason to get a lighter sentence, but how the case was carried out. Again, whether the items were recovered or not should also not be a factor for leniency because in both cases, the law was broken.”

On why people that steal goats and chicken get stiffer sentences than those that steal millions of kwacha, the lawyer blamed it on history.

Observed Banda: “Historically, a goat, a chicken or a cow was regarded as a valuable asset to a villager hence such sentences. But if those that steal money are allowed to pay back, then the one who steals a goat should also be given an opportunity to return or pay so that he or she also gets a lighter sentence.”

Speaking after Senzani was handed her sentence, deputy Anti-Corruption Bureau director Reyneck Matemba said the mere fact that Senzani was convicted and sentenced will send out a strong message to all those involved in Cashgate.

On her part, Director of Public Prosecutions (DPP) Mary Kachale refused to comment saying court verdicts are done by the courts and she referred The Nation to the Judiciary.

Registrar of the High Court of Malawi and Malawi Supreme Court of Appeal Joseph Chigona said every case is treated differently based on its merits and demerits.

He said: “And when the judge or magistrate gives a sentence, the reason is given for such. Again, you should know that consideration is made on mitigation factors.”