#Malawi: How the first Cashgate convict got only 3 yrs for stealing billions

By Mabvuto Banda

On Tuesday, October 7, 2014, Mrs Treza Namathanga Senzani, Principal Secretary in the Ministry of Tourism was given a nine months custodial sentence on theft charges and three years for money laundering.

Mrs Senzani became the first cash-gate suspect to be jailed.  She was among the many accused of exploiting a loophole in the government’s payment system – the Integrated Financial Management System (IFMIS) in which billions were stolen.

In addition to the cash-gate transactions, Baker Tilly, the British bean counters found that payments without supporting documents accounted for an additional K4 billion and supply contracts that had been inflated by K3.6 billion.

According to Baker Tilly, the government was defrauded of about $32m, almost 1 percent of Malawi’s annual GDP, in the six months between April and September 2013.

Making the ruling Judge Ivy Kamanga made an interesting observation: “With respect to the State prosecutorial discretion, they are well conversant with the Penal Code but charged her  [Senzani] with simple theft and not theft by public servant. They gave the impression that they never intended to punish her with a severe punishment when a serious charge was available.”

This one statement from Judge Kamanga spurred me into action. I decided to go back a bit and check a few courts cases just to compare with the sentence Mrs Senzani got for stealing.

Two years ago, I found out, Lameck Phiri was sentenced to 3 years in prison by the Blantyre Magistrate court for stealing K50,000 from his work place. He worked as a house boy.

In 2014, two civil servants, Brian Banda and Howard Njewa working with the Ministry of Economic Planning and Development were sentenced for 2 years  with hard labour. They both were charged with theft by public servant.

Edward Kanyama from Dedza is serving 2 years for stealing fertilizer belonging to a neighbour.

After going through the cases, I concluded that the wealthy will always find a way out no matter what the law says and Ms Senzani may have just managed to do that.

Section 283 of the Penal Code provides for stealing by persons in public service. The offence created under section 283 of the Penal Code is termed theft by public servant.

The maximum punishment for this offence is life imprisonment with hard labour.

The law also provides for minimum sentences for the offence of theft by public servant which is of course ameliorated by full restitution.

If a public officer is convicted of theft of government/public property exceeding the value of K80, 000.00 they will be liable to a minimum prison sentence of 14 years imprisonment with hard labour. 

It should be made clear here that fourteen years IHL is the minimum sentence and not the maximum sentence which means that the court cannot impose a sentence of below 14 years IHL if the property stolen exceeds in value of MK80, 000.00.   

Case law is to the effect that there is no power to suspend sentence on conviction of theft by public servant even if there were full restitution. The only thing that might happen when there is full restitution is that the minimum sentences would not apply but a custodial sentence would be inevitable.

What would be debated in this case would certainly be the duration of the custodial sentence.  It follows that on conviction of the offence of theft by public servant; there would be no debate on whether a non-custodial sentence should be imposed whether there is full restitution or not and regardless of some other mitigating factors such as illness, old age, etc.

Section 283 of the Penal Code is in the following terms:

Where it is proved to the satisfaction of the court that any person employed in the public service has by virtue of his employment received or has in his custody or under his control any money or other property, and such person has been unable to produce to his employer such money or other property or to make due account therefor, such person shall, unless he satisfies the court to the contrary, be presumed to have stolen such money or other property, and shall be convicted of the felony of theft.

Where a person employed in the public service is charged with theft, and it is proved to the satisfaction of the court that during a period of that person’s employment there has been paid into a bank, Post Office Savings or other account to the credit of that person a greater amount in the aggregate than that person has received by way of lawful remuneration during such period, and the accused person fails to give to the court a satisfactory explanation of how he came into possession of such excess amount, the court shall take into consideration such failure in determining whether or not the accused person is guilty of the theft with which he is charged.

Where a person employed in the public service is charged with theft, and it is proved to the satisfaction of the court that during a period of that person’s employment there has been any sudden or substantial enrichment of that person, or of any member of his family or household, in respect of money or other property, and no satisfactory explanation of such enrichment is given to the court, the court shall take into consideration the absence of such explanation in determining whether or not the accused person is guilty of the theft with which he is charged.

Notwithstanding section 27 (2) and (3), where a person employed in the public service is convicted of theft under subsection (1), he shall be sentenced to imprisonment for a period not less than that set out in the following table opposite the amount or value which corresponds to the amount or value of the money or other property stolen by him less the amount of any money repaid to the employer by the convicted person by way of restitution or the value of other property in respect of which restitution has been made by him to the employer—

Amount or value Period of imprisonment

Not exceeding K2,000 ………………………………. 12 months

Exceeding K2,000 but not exceeding K5,000 2 years

Exceeding K5,000 but not exceeding K8,000           3 years

Exceeding K8,000 but not exceeding K12,000 4 years

Exceeding K12,000 but not exceeding K20,000 5 years

Exceeding K20,000 but not exceeding K40,000 7 years

Exceeding K40,000 but not exceeding K50,000 8 years

Exceeding K50,000 but not exceeding K80,000 10 years

Exceeding K80,000 …………………………………14 years:

Provided however that the provisions of this subsection shall not apply in any case where either—

(a) the person convicted has by way of restitution repaid in full the amount of any money proved to have been stolen by him or has made full restitution in respect of any other property stolen by him, or both, as the case may be; or

(b) the amount or value of the money or other property stolen did not exceed   K500.

For purposes of this section, “restitution” means a positive and voluntary act of restoration of the money or property by either the convicted person or some other person on his behalf, but does not include money or property recovered by the police or the employer of the convicted person or any other person, not on behalf of the convicted person.

(5) The maximum punishment under this section shall be imprisonment for life.

(6) Where the court convicts of theft any person to whom subsection (1) applies, the court shall make an Order for the seizure of any money and the seizure and sale of any property of that person, or of any member of that person’s family or household whom the court is satisfied has been fraudulently enriched from the proceeds of the theft, sufficient to realize an amount, equivalent to the amount or value of the money or other property proved to have been stolen less the amount or value of any part of such money or property restored to his employer and any amount ordered to be paid under subsection (7), to be paid forthwith to his employer.

(7) Where a court convicts of theft any person to whom subsection (2) applies, the court shall make an Order for the payment to that person’s employer out of that person’s bank, Post Office Savings or other account of a sum equivalent to the amount or value of the money or other property proved to have been stolen less the amount or value of any part of such money or property restored to his employer, by that person. Any such Order shall be a sufficient authority to the banker, Post Office or other person or authority with whom the account is maintained for the payment to the employer of the amount specified in the Order out of any sums standing to the credit of the convicted person in such account.

Section 284 of the Penal Code provides for negligence by public officer in preserving money or other property. The section provides:

(1) Where any person employed in the public service has by virtue of such employment received or had in his custody or under his control any money or other property, and as a result of the gross negligence or recklessness of that person that money or other property, or any part thereof, is lost or stolen or cannot be accounted for by that person, then that person shall be guilty of an offence.

(2) Where any person is convicted of an offence under this section he shall be liable to a fine not exceeding the amount or value of the money or other property lost, stolen or unaccounted for, and to imprisonment for five years.

(3) Where any person is convicted of an offence under this section, the Court may make an Order for the seizure and sale of any property of the convicted person sufficient to realize an amount equivalent to the amount or value of the money or other property proved to have been lost or stolen, to be paid forthwith to his employer.

WHAT CASE LAW SAYS ABOUT THEFT BY PUBLIC SERVANT

A charge of theft by a person employed in the public service contrary to s. 278 of the Penal code as read with s. 283(1) should aver that the accused, “being a person employed in the public service and having by virtue of his employment received or had in custody or under his control” specified money or other property, “stole the said money or property”. Rep. v. Abraham 1971-72 ALR Mal. 293.

Upon proof that a person accused of theft by a public officer, contrary to s. 278 of the Penal code as read with s. 283(1), was unable to produce the money or other property to his employer or to make good account for it, he will be presumed to have stolen it unless he satisfies the court to the contrary (Rep v. Abraham 1971-72 ALR Mal. 293, per Edwards, J).

In Malombe v Rep [1993] 16(2) MLR 561 (SCA) ( the case came before Banda CJ, Unyolo JA and Chatsika JA), Banda CJ held that offences of theft by a public servant were in a class of their own because once the primary facts have been proved, namely, that the appellant was a public servant, that he issued the receipts in issue, and that he failed to account for the money, then a presumption of guilt arises against him. 

In Rep v Gona [1992] 15 MLR 428 (HC) Msosa J echoed similar sentiments holding that where an accused is charged with theft by public servant, the onus is on the prosecution to establish that the accused was a public servant and that he was unable to account to his employer for moneys received in the course of his employment.  She then said that the onus then shifts to the accused to give an explanation. If the explanation of the accused raises reasonable doubt as to his guilt, he is entitled to acquittal.

In Malombe v Rep the appellant was convicted in the lower court on a charge of theft by public servant contrary to section 278 as read with section 283 of the Penal Code. He was sentenced to mandatory minimum sentence of eight years imprisonment. He appealed against both conviction and sentence to the High Court on grounds that he was not a public servant because he was on temporary employment with the government and that he was not responsible for receiving or keeping cash.

Banda CJ. As he then was stated that the appellant fitted and fell in the definition of public servant and he was responsible for receiving, keeping and banking cash. He said that there was a presumption of guilt against him and he was required to rebut the presumption on a balance of probabilities, but, he failed to rebut this presumption as he could not explain the missing money, which he received and receipted.

In Gusto Daston Ndalahoma v. Republic Criminal Appeal Number 2 of 2008 the Court, HC, Mzuzu Registry, (Unreported), Chikopa, J held that  to account as envisaged in section 283 of the Penal Code means to give an explanation as to what one did with the employer’s money or property.  He further said that it is then up` to the court to decide whether, in that particular case the accused stole or not. The learned judge then stated thus:

“Clearly not every account will exculpate the accused. If the accused put the money to his benefit when he was not entitled to the same he will be taken not to have accounted. He will be deemed to have stolen the fact that he has explained what he did with the money notwithstanding”.

To sustain a conviction of theft by public servant the prosecution must prove that the accused received property by virtue of his employment: Kuchipanga v Rep [1991] 14 MLR 167 (SCA).  For the accused to be exonerated he must, on a balance of probabilities, lay down a foundation from which the judge will be able to decipher some elements or factors persuading the court to hold the view that the prosecution has not proved its case beyond any reasonable doubt (see for example Malombe v. Rep [supra]).

In Rep v Zgambo [1990] 13 MLR 413 (HC) the accused had been employed as a court messenger at the Nkhota-kota District Traditional Court. He was issued with certain uniforms to be worn in the execution of his duties as court messenger. A clerk at the same court got wind of the fact that the accused had sold his rain-coat and tunic – both parts of the uniform issued to him. The accused denied this, saying that he had merely pledged the goods as security for a loan and that he had no money with which to redeem the goods at that stage. He was thereupon advised to redeem the coat and tunic as soon as he had received his salary at the end of that month, which, at that stage, was a mere few days away.

THE SENZANI CASE

The prosecution initially charged Mrs Senzani with  abuse of office under the Corrupt Practices Act, money laundering under the  Money Laundering, Proceeds of Serious Crime Terrorist Financing Act of 2006 and simple theft under the Penal Code. The maximum sentence for abuse of office is 12 years IHL and that of money laundering is 10 years IHL and a fine of MK2 million.

The punishment for theft simpliciter is 5 years IHL.  When trial commenced, the prosecution dropped the charge of abuse of office and maintained the other two offences. Speculation was rife that the dropping of the charge of abuse of office was as a result of the State and the defence had struck a plea bargaining deal even though there are no plea bargaining rules in Malawi (the Chief Justice who is charged with the responsibility of formulating plea bargaining rules under the Criminal Procedure & Evidence Code) is yet to formulate the plea bargaining rules.

Since there are no prevailing rules on plea bargaining in Malawi, the decision to drop the abuse of office charge could not be based on some plea bargaining deal.  Assuming, there were plea bargaining rules, when there is a plea bargaining between the State and the Accused, the court is supposed to be informed about the same. The fact that during the entire proceedings the court was never informed about the plea bargaining is a further indication that the dropping of the charge was not based on some plea bargaining agreement.

Whether or not to charge an accused person with an offence is a prosecutorial discretion. The prosecution also has discretion to choose what offence to charge a person who has committed a crime. This discretion has to be exercised judicially. With respect to Tizza Senzani, the former, Tourism PS, the proper charge should have been that of theft by public servant and not that of theft simpliciter.

Given the fact that the offence committed was unprecedented and also owing to the fact that the matter has generated huge amount of public interest, the prosecution ought not to have exercised its discretion to charge Mrs. Senzani with the offence of theft simpliciter and money laundering. 

Opting to charge her with theft simpliciter as opposed to the much more serious offence of theft by public servant might be indicative of lack of seriousness on the part of the prosecution no matter what might have been agreed behind doors as is being discussed in the grapevines.  

For starters, Mrs. Senzani was a public officer when she committed the offence. As PS for Tourism she was in control of funds and other property belonging to Government. As a controlling officer, she had powers to authorize payments and in fact a duty to protect loss of Government property.

Actually, during sentencing of Mrs. Senzani, the presiding judge, Justice Ivy Kamanga, wondered why the state did not charge the accused with a more serious offence of theft by public servant. She noted that the state insisted on charging her with theft simpliciter arguing that the state has discretion to choose what charge to prefer against an accused person.

During sentencing, the judge also wondered why the state having elected to charge the accused person with theft simpliciter implored upon the court to take into account the fact that the accused person occupied a position of trust which she abused. That argument could have been available only if the state had charged the accused with theft by public servant. In fact the sentence could have been more than the nine months which the court imposed on the charge of theft simpliciter as the offence could have been aggravated by the fact that the accused person occupied a position of trust.

The State also opted to charge Mrs Senzani with the offence of money laundering which carries a maximum sentence of 10 years IHL and a fine of MK2 million. Mrs. Senzani pleaded guilty to the money laundering charge.  There is need to understand what money laundering is as contemplated by section 35 of the  Money Laundering, Proceeds of Serious Crime Terrorist Financing Act of 2006.  Money laundering is the method by which dirty money received from criminal activities is processed through legitimate businesses and converted into clean money. Once cleaned, the money cannot be easily traced to the person originating the transaction or to the criminal origin of the funds.

Money laundering offences assume that a criminal offence has occurred in order to generate the criminal property which is now being laundered. This is often known as a predicate offence.  Although no conviction for the predicate offence is necessary for a person to be prosecuted for a money laundering offence, there is need to particularise the nature of the predicate offence which led to possession of proceed of crime. 

This was never the case in the Senzani case and therefore the plea of guilty on money laundering was incompetent and on appeal the conviction may be quashed despite the guilty plea. This is also in light of the fact that the particulars of the charge and the facts which were adduced by the prosecution might not have fully disclosed all the elements of  the offence of money laundering as provided for at section 35 of Money Laundering, Proceeds of Serious Crime Terrorist Financing Act of 2006.

During sentencing, the prosecution made references to various Media articles and publications to show the impact of the cashgate on the public.  Justice Ivy Kamanga rightly rejected the state’s plea to take into account the Media articles and various publications on the impact of cashgate on the public.  If the state wanted the Judge to take into account Media reports and Reserve Bank publications on cashgate, it should have adduced evidence before the court as required by section 321J of the Criminal Procedure & Evidence Code. Section 321J states:

Where a verdict of guilty is recorded, the High Court may, after judgment but before passing sentence, receive such information or evidence as it thinks fit, in order to inform itself as to the proper sentence to be passed.

The information or evidence that the court may receive under subsection (1) may, in addition to the evidence of the accused or the prosecution, include information or evidence by or on behalf of the victim of the offence and any relevant reports to enable the court assess the gravity of the offence.

The prosecution never attempted to adduce evidence as provided for under section 321J of the Criminal Procedure & Evidence Code. It instead opted to just make submissions before the court. This is why the reference to Media reports and Reserve Bank of Malawi publications was rejected.

The judge was of course wrong to accept the reference to the budget statement by Honourable Goodall Gondwe when he stated that due to cashgate the donors had withdrawn budgetary aid to Malawi. The defence had no chance of testing the veracity of this statement. In addition, this was a political statement intended to achieve political goals. It is not clear why the State failed to bring experts from the Ministry of Finance, Ministry of Health and Ministry of Education amongst others to testify on the effect of cashgate.  The acceptance of the political statement by the court may provide a ground of appeal to the Supreme Court.

The other  intriguing issue is the fact that the State was quick to accept the fact that the surrender of Mrs. Senzani’s house located in Area 47 in Lilongwe constituted full restitution. In fact the State never informed the court that what it stated to have been restitution was not restitution in the form of actual cash.  There was no valuation report presented in court for the said house.

The Area 47 house which was surrendered might have been worth less than MK40 million.  For the State to recover the MK65 million or so which Mrs. Senzani is said to have stolen, it needs to put the house on sale and this may take a considerable period of time. Considering the past history when government officials were allowed to buy houses belonging to public institution such as Malawi Housing Corporation and Lilongwe City Assembly,  there is a possibility or indeed high probability that the house would be sold at a song, say, at MK5 million. 

There will also be further costs on the state of advertising for sale of the house including conveyancing costs.

There was in my view no remorse demonstrated. The accused failed to give up her mansion located near Bunda Road Block along the M1 Road. She also failed to give up her other more expensive and beautiful houses located in Area 47, Sector 1.

What should also be noted is that courts tend to pass maximum sentences on accused persons when the circumstances of the offence are unprecedented.

Sam Mpasu who was convicted of the offences of abuse of office under the Penal Code which was a misdemeanor then carrying maximum sentences of 2 years IHL was sentenced to serve maximum sentences which were ordered to run consecutively. Kamil and others who hijacked an aeroplane and landed at Chileka International Airport were sentenced to serve maximum sentences which were ordered to run consecutively.

The Sam Mpasu case could not be the worst crime ever committed and in fact the Senzani case could be worse than the Sam Mpasu case since there was no evidence that Sam Mpasu benefitted from his criminality whereas here, there was evidence that Mrs. Senzani benefitted from her criminality.  

What is also worth to note is that the sentence would serve as a guide to some cashgate related cases although the prosecution did not directly link Senzani to the cashgate cases.   Solace should be on the decision by the judge to order that all the money in Senzani’s business account should be forfeited to Government as it represents tainted property.