Interview: Prosecute more people for deterrence

The sentencing of former Ministry of Tourism principal secretary Tressa Senzani to three years imprisonment for stealing K63 million continues to create debate. I caught up with Professor Danwood Chirwa, a law lecturer at the University of Cape Town in South Africa, to find out what it is in court judgements that determines the length of a sentence.

Q: Whenever judgements in high-profile cases are delivered, there are always mixed reactions from society. Some argue the sentence is lenient and yet others would say it is fair. What determines judgements?

A: In assessing the appropriateness of the sentence in this case, one has to bear in mind one major anomaly in our criminal law that relates to the offences of theft and theft by public servant. The latter is treated as a more serious offence with a minimum sentence of 15 years. By contrast, simple theft has five years as its maximum sentence.

For a person to be convicted of theft by public servant, he or she must hold property of the State and fail to account for it. The person does not even have to steal it. Losing it inexplicably can result in a conviction. This offence was intended to curb the loss of public property. Unfortunately, its target is low- level public servants who keep State property such as stores clerks, cashiers and the like.

Simple theft involves taking anything that belongs to another person with the intention of converting that thing for the taker’s own use. The thing stolen need not be public property. Thus, it can be committed against a private person.

Q: In some criminal cases, including that of former Blantyre City mayor John Chikakwiya and the recent one involving former Ministry of Tourism PS Tressa Senzani, the convicts repaid the money they were accused of stealing. In legal terms, how far do such actions influence a judge/magistrate to mete out a lenient sentence?

A: It appears that in this case, the State did not prefer the charge of theft by servant presumably because the money stolen was not in the stealer’s possession as a person entrusted to be in possession of that money. This raises the question as to whether principal secretaries, by virtue of their powers to authorise payments, can be said to be in possession of the State funds they oversee. It was open to the prosecutor to charge the accused with both offences to test this very question.

The fact that the charge was one of theft meant that the judge had limited room as regards sentencing options. The maximum for this offence is five years. A judge cannot impose the maximum sentence on a first offender who has pleaded guilty. The maximum sentence is reserved for the worst form of theft. Normally, courts will assume that the worst case is still to come. In sentencing, the courts have to balance the interest of the State/society and those of the individual convict.

Q: Looking at the laws of Malawi, what do you think constitutes a stiff punishment? And do you think they support fair judgement to convicts?

A: Our new Constitution makes it a State interest in sentencing to reform the offender. Fair and humane administration of justice is what the Constitution demands. This is indeed the right thing to do as a society that behaves in a cruel manner to criminals and is not different from the criminals themselves it seeks to torment.

Thus, although punishment in our Constitution still has, in a way, a retributive deterrent specs, our system is supposed to be more oriented towards the rehabilitation of offenders, especially those who show remorse, plead guilty and are first offenders.

I understand that the offender in this case fulfilled all these factors and more importantly, paid back most if not all the money that was stolen. These factors militate in favour of a more lenient sentence.

Q: Some quarters are suggesting a review of the Penal Code, which is outdated, having been formulated during the colonial era. It is noted that those found guilty of stealing small amounts or even things like chickens and goats tend to get more years in jail than those accused of siphoning millions or billions. What is your take?

A: Will this sentence deter others from stealing government money? The answer is that it should. The problem of impunity as far as looting of State resources is concerned does not lie with what may be perceived as lenient sentences by the courts. On the contrary, it lies in the lack of prosecutions and complicity in the theft by political superiors. State agencies charged with the responsibility of fighting corruption and theft of public resources has never functioned under a minimum threshold of independence. It is by prosecuting more people that deterrence will happen and not using one convict as a scapegoat.

Q: What is your opinion on the three-year sentence for former principal secretary in the Ministry of Tourism who stole K63 million from government coffers?

A: The point often missed by those who bay for longer sentences is that Malawian prisons are in the worst possible condition. Any length of imprisonment is a likely death sentence for the convict. This must serve as a warning to those who think two years imprisonment is a small sacrifice one can make in order to steal public funds. You may not come back to enjoy the loot, that is if the loot is not confiscated by the authorities.