Mpinganjira plea bargain stalls

Business mogul Thomson Mpinganjira’s lawyers are yet to make a plea bargain in his alleged judge bribery case in progress in the High Court of Malawi, but say the matter is not closed.

In an interview on Monday after adjournment of the day’s proceedings in Blantyre, Anti-Corruption Bureau (ACB) director general Reyneck Matemba said nothing had changed in terms of plea bargaining—an arrangement where prosecution and defence discuss a mutually satisfactory way to dispose a case.

He said this was the reason the prosecution was proceeding with the parade of witnesses.

Said Matemba: “You may also find out from them [the defence] what their position is, but as for us, we will proceed with the case. We have made good progress…

“Like I indicated in court that if they [judges Redson Kapindu and Ivy Kamanga] were here we could have finished today and conclude tomorrow with our investigation officers.”

But in a separate interview, Mpinganjira’s lead lawyer Patrice Nkhono, who indicated that the plea bargaining  matter was still not closed, said they will wait until the witnesses testify before the court.

“We have heard the evidence today [on Monday] from Justice [Healey] Potani and Judge [Dingiswayo] Madise. It was very brief so I would not want to go into details,” he said.

In the case, Mpinganjira is accused of allegedly attempting to bribe five High Court of Malawi judges sitting as the Constitutional Court in the May 21 2019 presidential election nullification petition case.

During the court hearing on October 22 2020, he applied for plea bargaining arrangement with the State “to save time and resources in the case”, according to Nkhono, and presiding Judge Dorothy DeGrabrielle accepted the application.

Black’s Law Dictionary (Sixth Edition) defines plea bargaining as “the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval”.

It says the process involves the defendant pleading guilty to a lesser offence or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than the possible for the graver charge.

Clarifying on plea bargaining, a lawyer who opted for anonymity because the matter is still in court said plea bargaining can take place at any stage of a case; hence, there is nothing to stop Mpinganjira from entering into a plea bargain even when the case is in progress.

Said the lawyer: “In most jurisdictions, plea bargaining can take place at any stage of the case. What it entails is just for the defendant to state his or her reasons to the prosecution and then agree on the way forward. In this case, it is possible that they can enter into plea at any time.”

On Monday, the ACB paraded two more witnesses in Potani—who has been promoted to the Malawi Supreme Court of Appeal and chaired the five-judge panel—and Madise.

In his testimony, Potani said he had a brief conversation with Mpinganjira which he indicated was not recorded. He quoted Mpinganjira as having told him that he had a parcel he wanted to give him.

The second prosecution witness said Mpinganjira’s address of him as “chair” during the conversation made him feel some discomfort.

Potani said Mpinganjira told him during the conversation that he (Mpinganjira) was running a “project” involving lawyers and judges involved in the presidential election nullification petition case; hence, he wanted to handover a parcel to him.

In cross-examination by defence lawyer Fostino Mayele, Potani said he did not receive the parcel which Mpinganjira was referring to.

The third prosecution witness Madise had a brief session. He told the court that Judge Mike Tembo—who appeared earlier as the first prosecution witness—told his colleagues that Mpinganjira was looking for Potani’s phone number.

Madise said Tembo shared the details at Ufulu Gardens car parking lot in Lilongwe where they were waiting to be to court.

In his testimony, Tembo told the court that the judges agreed to give Mpinganjira the contact number for Potani as they (the judges) had no reservations considering his standing in society.

This afternoon, Kapindu will take to the witness stand to give his testimony while on Friday it will be Kamanga’s turn.

Mpinganjira is answering charges under the Corruption Practices Act. The charges include offering an advantage to a public officer, attempting to induce public officers to exercise functions of their offices corruptly and purportedly attempting to influence public officers by offering K100 million to Constitutional Court judges.

The business mogul was arrested on January 22 2020 following a formal complaint from Chief Justice Andrew Nyirenda to the ACB on November 28 2019 that two of the five judges hearing the presidential election nullification petition case reported bribery attempts.