One convict of rape in Kasungu was give a 13-year custodial sentence while another was given 12 years for the same offence, but when a police officer raped a girl in a holding cell, he got six years imprisonment. Where is fairness in punishing offenders?
Such incidents are many, and widespread, creating a disease in the judicial system, especially in magistrates courts. The Law Commission says, to cure this sickness, there is need for enactment of legislation on sentencing guidelines.
Experts partly blame the status quo on lack of capacity for a number of magistrates most of whom have no adequate training for the job.
Lay magistrates form about 80 percent of judicial officers, according to statistics from Judiciary.
As a response to the growing problem, the Judiciary is now developing a handbook to guide magistrates on sentencing. It also plans to recruit more professional magistrates (with a law degree) such that every district has one, according to Registrar of the High Court and the Supreme Court Agnes Patemba.
She could, however not state when the handbook will be out.
“We are in the final stages of working on it. Covid-19 disturbed our progress. The handbook, I believe, will mitigate the discrepancies that we are currently facing,” Patemba said.
The High Court has always had the burden to reverse some of the unreasonable sentences meted out by lower courts for petty offences, but where such cases are not speedily sent for review to the higher court convicts of petty crimes languish in jail for lack of legal representation.
Our review of court documents show that there are a number of convicts serving longer sentences ranging from three to 10 years for stealing cattle, goats and a bicycle, yet others have lesser sentences for stealing huge sums of money as was the case in some Cashgate cases.
Five days ago, the Lilongwe Magistrates Court sentenced a man to three years imprisonment for stealing K100 000, the same sentence the High Court meted out to Cashgate convict the late Trizza Namathanga who had stolen K63 million from the public purse a few years ago.
Director of Legal Aid Bureau Masauko Chamkakala, bemoaned the disparities in sentences, saying they are influenced by the social environment; where the gravity of the offence depends on locality.
“Stealing K50 000 in Dowa may get you no less than five years, but for the same crime in Lilongwe you may probably do community service. Same thing with stealing two goats in Dowa you may get more than five years because the magistrate wants to send a strong message to community members, but the same can just be suspended sentence in Lilongwe,” he said.
Chamkakala also suggests that the country needs to develop a comprehensive law that will guide sentencing, so that there is a standard.
He argued: “It is about equality of all human beings, it does not make sense that because you are in a city you have to get a lighter sentence because the value of the stolen item is lower, yet in the village you get a harsh penalty because the value is assumed higher. Sentencing should have nothing to do with where you are coming from.
“One way to deal with this is to develop the guidelines. Another way is to promote legal literacy. Let people have an understanding of the law to avoid some of these cases.”
The legal aid boss is even more worried that petty thieves had been handed harsh penalties for lack of legal representation.
“Look at the value. Someone steals a goat and someone siphons billions from public coffers; the first one is given three years and the second one two years, is that justice?” he asks.
But the law itself poses a problem. A case in point is Section 283 of the Penal Code which imposes a prison sentence of up to 10 years for theft of a bicycle.
Dean of Law at Chancellor College, Sunduzwayo Madise, supports calls to develop clear sentencing guidelines and also harmonising the law to avoid disparities in sentencing.
“You have the Penal Code having its own penalty and when you go to the Financial Crimes Act or the Corrupt Practices Act you have different sentences. So, this brings about disparities. Look at the sentence for stealing a goat or bicycle in the Penal Code, the sentence is quite harsh considering the value of the items now. In 1929, when the law was put in place, this made sense but we need to modify it,” Madise said.
He also noted that while the High Court has a responsibility to correct mistakes of the lower courts through confirmation of sentences there is no provision to confirm judgements of the High Court apart from an appeal to the Supreme Court.
“The High Court has original unlimited jurisdiction and the assumption is that their sentences are within the law, but it could happen that once in a while there is a mistake in sentencing. I wish there was a way to check this other than the appeal process alone,” Madise said.
“Another problem is access to legal representation. Ordinarily, the Legal Aid would have been doing this, but due to funding, it is unable to do so. The bureau would be able to challenge the High Court decisions through an appeal, but in the absence of legal representation, some people may be punished unfairly,” he added.
The report of the Law Commission on the development of legislation on sentencing guidelines also bemoans discrepancies and inconsistencies in sentencing, calling for a more standardised approach to enhance judicial transparency and accountability.
Reads the report dated March 2019 and currently awaiting Cabinet approval: “It would help prosecutors, counsel, victims, judicial officers, and the community, among others, to be certain of the process as well as the outcome. For instance, in the case of judicial officers, the legislation would add value to their work and help to ease difficulties that magistrates have in coming up with a particular sentence.
“Judicial transparency and accountability will be enhanced since guidelines developed under the legislation shall have force of law. In addition, there would be a single source of sentencing law for all judicial officers such that departure from the guidelines would be noticeable, requiring proper justification.”
Another notable challenge in magistrates is sentencing outside mandate. For example, a court that is not supposed to sentence anyone to more than three years has ended up meting out a nine-year sentence.
Last month, High Court Judge Zione Ntaba overturned a six-month custodial sentence the third grade magistrate court sitting at Domasi imposed on a heavily pregnant woman who was convicted of theft. Ntaba found the custodial sentence for a pregnant woman unjustified.
Some magistrates have handed out sentences outside their mandate. Magistrates courts, which are divided in four categories, have limited jurisdictions.
For example the lowest court the third grade magistrate court, can only impose a custodial sentence of up to three years and a fine of not more than K150 000, but in practice this court has handed over sentences of up to 10 years, according to Justice Sylvester Kalemba in his report (2017) published by the Southern Africa Litigation Centre.
Says Kalemba: “Although their jurisdiction is limited, Third Grade Magistrates continue presiding over matters when they have no jurisdiction and imposing sentences above their jurisdictional limits. This happens for various reasons, including necessity, sheer disregard of jurisdictional constraints and mere incompetence.”
According to a staff profile, Malawi has 66 third grade magistrates, 37 second magistrates, 61 first grade magistrates, 42 senior resident magistrates, three principal resident magistrates and four resident magistrates against 28 judges in the High Court.