Nation on Sunday has busted a search warrant racket involving police officers and court officials who process the document for a bribe as low as K3 000.
According to a former Attorney General we spoke to, the development can lead to violation of right to privacy and fuelling of criminal activities, among others.
Following reports of the abuse of the system, Nation on Sunday conducted undercover investigations in cities of Mzuzu, Lilongwe and Blantyre after obtaining permission from the Anti-Corruption Bureau (ACB), which was duly granted.
Our reporters managed to obtain search warrants for lost phones, without following the due process, after some police officers and judicial officials asked for money whose receipts were not issued, expect for one case in Mzuzu.
Both the Judiciary and the Malawi Police Service (MPS) have condemned the conduct, saying it is illegal.
According to Section 113 of the Criminal Procedure and Evidence Code, a court (or a magistrate) only issues search warrants after a police officer or a State agent applies to the court, and after satisfying the court with reasonable grounds for the application.
In the process, the officer is also expected to answer on oath questions that the court hearing the application may put to him or her.
The same section states that the application for a search warrant shall be made ex-parte and shall be supported by information in writing.
But our undercover investigations in Blantyre, which led to the obtaining of a search warrant, did not follow any of that process.
Investigations led our reporter to one police station where he was asked by an officer to pay K4 000 to get a search warrant after he had reported missing his mobile phone handset and a laptop.
The officer then called a support staff at the magistrate’s court in Blantyre, who was asked to assist further.
The support staff demanded K4 000, but a fee of K3 000 was eventually agreed upon and the reporter was issued with the warrant recorded as Criminal Case Number 153 of 2017, the Republic versus Unknown and addressed to mobile service providers TNM and Airtel.
The warrant dated December 7 2017 that is embossed with a stamp from The Chief Resident Magistrate (South) orders TNM or Airtel to produce a computerised call log.
The officer and the State agent are required by law to enforce the search warrant, but in the Blantyre scenario, it was the purported victim of theft who had to carry the search warrant to mobile phone service providers and enforce it.
In Lilongwe, a police officer was paid K5 000 to get a search warrant dated December 8 and cited as Civil Case Number 1539 of 2017, but a receipt was not provided and nobody knows where the money went or whether it will be used to improve service delivery in the Malawi Police Service.
The police, however, produced a supporting affidavit that the reporter carried to the court clerk who helped to produce the warrant.
In Mzuzu, after explaining that a Vodafone tablet had gone missing the previous day, an officer at Mzuzu Police Crime Management Unit, asked for a few details that included name and home village of the applicant, type of phone, and the number of the said stolen phone.
“You will need to pay K3 000 for processing a report which you will take to court to obtain a search warrant. At court, you will pay an extra K1 500 for their services,” he said.
After the reporter accepted that he was ready to pay the said costs, it took five minutes for the officer to bring what he termed a report for the missing phone.
The officer took the document for signing and stamping by a senior officer. Ten minutes later, the officer was back with a complete document.
The reporter was, however, issued a government receipt after paying K3 000, and the officer also asked for ‘something for running up and down’, hence, an additional K1 000 was paid.
Despite the officer not asking the reporter whether he was an employee or a student, he indicated on the document that the applicant was a student but mentioned neither the school nor the circumstances under which the phone was allegedly stolen.
Unlike at Police, at the Mzuzu Registry, the clerk only asked for K1 500, which also reflected on the actual Court Order in Civil Case No 2712 of 2017.
In our nationwide investigation, our reporters’ sting operation revealed what most people face each and every day—unsuspectingly giving out money to police officers in exchange of search warrants when the exercise is supposed to be free.
This very story was experienced also by a senior magistrate we interviewed.
The magistrate’s relative lost a handset and set out to get a search warrant in Lilongwe and when he went to a police station, officers, as usual, demanded payment for the document.
“My relative went to police where she was charged the amount to pay to get a warrant. I later went back with her to the station and requested the court papers which I signed and everybody was asking her about the amount but after realising that I was a magistrate, they couldn’t do anything,” said the magistrate, speaking on condition of anonymity.
Nation on Sunday team—just as many poor ordinary Malawians—had no such privileges, we paid the demanded amount in full. But as the magistrate explains to us, it is wrong and abuse of office.
“Police officers are not supposed to demand any pay. We have heard many stories. People are charged all sorts of amounts, but the truth is, this is not backed by law. And where does the money go without receipts?
“Of course, officers make all sorts of claims, such as transport to court, but that is not the responsibility of citizens. In any case, stationery should not cost as much as K5 000 or more per individual. And, in any case, it would even be prudent for police to ask the public to photocopy the papers, if they indeed want the public to subsidise their work, than charging such sums,” said the magistrate.
According to the magistrate, the K1 500 charged by courts for search warrants are legal; hence normally receipts are issued after such transactions.
Actually, at court, a departmental receipt for Judiciary indicating the amount was also produced. No extra money was demanded.
But the order states that the magistrate had examined the applicant, which did not happen because the order only went to the Magistrate’s office with the clerk.
According to National Police Headquarters spokesperson James Kadadzera, search warrants and affidavits which police provide to members of the public are free.
“These are free of charge. We don’t charge anything. We provide two documents—a search warrant and an affidavit. These are supposed to be taken to a commissioner of oath, who could be a magistrate or a lawyer. Lawyers will always charge for their services while magistrates also have a fixed fee for such commissions. We advise people, after providing them with the search warrant, to go to magistrates or a lawyer and pay there, but some people ask police officers to take the documents to the magistrates or lawyer on their behalf, hence they give police officers cash to pay for them. That’s unprocedural, but it happens a lot,” he said.
Commenting on the matter, High Court registrar Agnes Patemba said it is illegal for individuals to go directly to court and obtain a search warrant as there must be an affidavit from police for a document to be processed
“If it is a criminal case, the law is clear, any person cannot go to court and obtain a search warrant except the police or a public officer. But in a case that someone is calling you maliciously you report to police and they give you an affidavit to go to court and obtain a court order and ask Airtel or TNM to find who is the person calling you,” she said.
A Zomba-based legal practitioner Rodrick Michongwe agreed with a former Attorney General we talked to that it is shocking that ordinary people could get search warrants.
“This is a very serious criminal offence, as Section 113 of the Criminal Procedure and Evidence Code clearly indicates that a police officer upon application to the court is eligible to obtain a search warrant and it did not say an ordinary individual,” he said.