Published online by Cambridge University Press: 28 July 2009
The period covering the first seven years of Malawi's independence (1964–1971) stands out as one of the most controversial in the country's postcolonial legislative history. It was during this period, for example, that the local or “Native” Courts of the colonial era were transformed into the now controversial Traditional Courts and given an existence separate from and independent of the High Court, as well as extensive criminal jurisdiction encompassing offences like murder and manslaughter and, subsequently, treason and sedition which were hitherto the preserve of the High Court. At the same time, the participation of lawyers in traditional court processes and the right of legal representation were curtailed under the pretext of ensuring that the course of justice would not be subverted by the frequent invocation of “technicalities” which lawyers are wont to invoke because of the alien and esoteric nature of their training. This paper is not concerned with the “law” of the Traditional Courts in Malawi which, elsewhere, continues to excite appropriate scholarly interest, but with another equally controversial law of the same period whose formulation was buttressed by similar antipathy towards the legal profession. This law introduced a special and rigorous regime for the prosecution and punishment of thefts in the public service.
1 The transformation of the “Traditional Courts” and their role in the administration of criminal justice in Malawi is discussed by, among other, Chimango, L. J., “Tradition and Traditional Courts in Malawi”, X (1977) Comparative and International Law Journal of Southern Africa, 39–66,Google Scholar and Wanda, B., “The Role of Traditional Courts in Malawi”, in Takirambudde, P. (ed.) The Individual under African Law, University of Swaziland, 1982, 76–92.Google Scholar
4 See, generally, Hansard, Proceedings of the Malawi Parliament, Government Printer, Zomba, 3rd Session, 2nd Meeting, 5–7 10, 1965, 183–192.Google Scholar
8 See Brietzke, P., “Theft by Public Servant in Malawi”, 1 (1972), Malawi Journal of Social Science, 65–75.Google Scholar This is surprisingly the only published article to date on this controversial topic. Some of the observations in this study have been rendered out of date not only by the passage of time but also by changes in the law which took place in 1973.
9 The jurisdiction of the Traditional Courts is set out in s. 13 of the Traditional Courts Act, Cap. 3:03 and supplemented by orders promulgated from time to time. In 1977, the Traditional Courts (Criminal Jurisdiction) (Amendment) Order, No. 133Google Scholar, and the Regional Traditional Courts (Criminal Jurisdiction) Order, No. 134 added the offence of abuse of office to the jurisdiction of these courts and presaged the most notable prosecution for theft by public servant in the Traditional Courts. In Rep. v. Masiku, Criminal Case No. 48 of 1977Google Scholar, a former executive chairman of ADMARC was charged with abuse of office and theft by public servant in the notorious Blantyre Southern Region Traditional Court. He was convicted on the first charge but acquitted on the more serious charge of theft when it transpired that the amount involved, about MK400,102.54, could be accounted for in “unauthorised loans” made by the corporation to a company in which the accused and members of his family were the principal shareholders. After failing to obtain the desired conviction in a “Traditional Court”, it would appear that the Prosecution, on whom rests the choice of a particular forum, now prefers to take such key cases through the Subordinate/High Court system.
10 See Muwalo v. The Republic, (1968) A.L.R. Mal. 1, 5Google Scholar and Mbalule v. Rep., (1966) A.L.R. Mal. 272, 277–278.Google Scholar In Ezekiel & Tawakali v. Rep. (unreported) Crim. App. No. 196 of 1981, the High Court suggested that since s. 283(1)Google Scholar does not disclose a new offence, a proper charge under it should also refer to s. 278. But an omission to do so is not likely to be fatal to the charge. Except where the report is indicated, as in the first two cases cited above, all the Malawian cases cited or referred to in this paper are as yet unreported.
11 D.P.P. v. Mwalwanda, (1965) A.L.R. Mal. 412, 413Google Scholar confirming Day v. Rep. (1958) A.L.R. Mal. 625.Google Scholar c.f. Kathumba v. Rep. (1965) A.L.R. Mal. 390Google Scholar and Rep. v. Belton Chikhasu, H.C., Conf. Case No. 925 of 1976 where EMEJULU and CHATSIKA, J J. respectively deprecated the practice of proving employment from oral testimony or in the absence of written evidence as dangerous. The holding of the Supreme Court however prevails as the obtaining law.Google Scholar
12 S. 4(vi).
13 S. 4(vii).
14 S. 4(vi) above is the provision which brings within the ambit of s. 283 employees in the various organisations which could be deemed to fall within the public enterprise sector. The leading authority on the interpretation of s. 4(vi) is Chitamire v. Rep., H.C., Crim. Case No. 8 of 1973.Google Scholar MEAD, J. held that the operative words of the provision are “established by or under”, and for an organisation to be established by or under any Act, that Act must make express provision for its establishment or creation. By virtue of this interpretation employees of the New Building Society could not be charged as public servants under s. 283 because the Building Societies Act, Cap. 32:01, did not provide for the creation of the New Building Society. It simply provided for the registration of Building Societies. Employees in the following organisations are, however, public servants since the organisations were expressly created or established by or tinder the indicated Acts: Electricity Supply Commission of Malawi, s. 3 of Cap. 73:03; The Malawi Broadcasting Corporation, s. 3 of Cap. 20:01; The Agricultural Development and Marketing Corporation (ADMARC), s. 3 of Cap. 67:03; The Malawi Book Service, s. 3 of Cap. 3:03; The University Council, s. 3 of Cap. 30:02; The Malawi Certificate Examinations and Testing Board, s. 3(1) of Cap. 30:04; The Malawi National Council of Sports, s. 3 of Cap. 30:05; and The Malawi Development Corporation, s. 3 of Cap. 39:01. This is not an exhaustive list of public enterprises and other organisations whose employees can be charged as public servants by virtue of s. 4(vi) of the Penal Code.
16 See ss. 3–6 of Cap. 69:04.
17 See note 14 above, and Grey Alick Manda v. Rep., H.C., Crim.App. No. 12 of 1978, where CHATSIKA, J. took “judicial notice” of the fact that employees of ADMARC were employed on the public service.Google ScholarThe M.D.C. was presumed to be an organization within the public service in Muwalo v. Rep. (1968)Google ScholarA.L.R. Mal. 1 and Kenton Mlambo v. Rep., H.C. Crim.App. No. 76 of 1980.Google Scholar
19 S. 4 of the Republic of Malawi Constitution Act.
22 See, for example, Rep. v. M'ndawala, H.C. Conf. Case No. 1555 of 1976;Google ScholarRep. v. Sefasi Kamtogo Mwale, Conf. Case No. 1563 of 1976;Google ScholarRep. v. Gresham Gilbert James Banda, Conf. Case No. 1564 of 1976;Google ScholarRep. v. Chimphonda & Kasalalika, Conf. Case No. 1565(a) of 1976;Google ScholarRep. v. Maya, Conf. Case No. 1566 of 1976;Google ScholarRep. v. Mphanje, Conf. Case No. 1614 of 1976;Google Scholar and Sisilo v. Rep. Crim.App. 151 of 1977.Google Scholar
23 Cap. 13:03.
24 S. 38, Art. vii.
28 S. 2 of the Young Pioneers Act.
31 In Rep. v. Bondo, H.C., Conf. Case No. 354 of 1973,Google Scholar for example, an accounts clerk who embezzled K506.69 by preparing false payment vouchers and forging his superior's signature escaped with a 2 year sentence instead of a 5 year sentence for theft by a public servant when EDWARD, J. ruled that the appropriate conviction was for obtaining money by false pretences. In similar circumstances in Rep. v. Joe Kapichi, Conf. Case No. 489 of 1976, CHATSIKA, J. reduced the sentence of another fraudulent clerk who had embezzled K336 from 4 to 2 years.Google Scholar
32 The most remarkable example of such differentiation is provided by the related cases of Kavalo v. Rep., H.C., Crim.App. No. 62 of 1976Google Scholar and Chipagala v. Rep., Crim.App. No. 61 of 1976.Google Scholar The headmaster of a primary school in rural Blantyre was responsible for the payment of teachers' salaries at his school. A clerk of the District Office was responsible for the preparation of the salary payment vouchers. The two worked out a scheme under which the clerk prepared some fictitious vouchers and the headmaster obtained salaries for non-existent teachers. The proceeds which eventually amounted to K 1,033 were shared equally between the two. Applying the authority of Muwalo, JERE, J. ruled in Kavalo that a conviction under s. 283(1) was misconceived. He replaced the 8 year sentence with one for 5 years, the maximum for the offence of obtaining money by false pretences. In Chipagala, CHATSIKA, Ag.CJ. confirmed the conviction under s. 283 and the sentence of 8 years for the clerk without even referring to the authority of Muwalo. Either through oversight or ignorance the authority of Muwalo was also ignored in Phiri v. Rep., Crim.App. No. 134 of 1976Google Scholar and in Chinsenga v. Rep., Crim.App. No. 114 of 1981.Google Scholar The result of ignoring Muwalo however accords with the wishes of the legislature, but this is an aspect of the law which could benefit from a clarification by the Supreme Court.
34 Viscount Sankey, L. C., in the celebrated case of Woolmington v. The Director of Public Prosecutions, House of Lords,  A.C. 462, 481–2.Google Scholar
35 Cross, Rupert, The Goldem Thread of English Criminal Law, The Rede Lecture, Cambridge, 1976, 15;Google Scholar and Williams, Glanville, The Proof of Guilt, London, 1963, 184–185,Google Scholar who submitted that there is no reason of expediency for departing from the golden thread rule, and that the departures he was considering had been achieved through carelessness and lack of subtlety in interpreting statutory provisions.
36 Likaku v. Rep., (1966) A.L.R. Mal. 83,Google Scholar see also Rep. v. Zambia, (1971) A.L.R. Mal. 109;Google ScholarKamanga v. Rep., Crim.App. No. 109 of 1980;Google ScholarKingwell Smith Nyirenda v. Rep., Crim.App. No. 100 of 1981;Google Scholar and more recently Simfukwe v. Rep., Crim.Rep. No. 15 of 1986.Google Scholar
44  3 All E.R. 523. The case concerned the defence of automatism in a murder charge. Denning, Lord suggested (at p. 535)Google Scholar that “in order to discharge the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary.” Morris, Lord (at p. 538)Google Scholar also made another remark from which the standard for the discharge of an evidential burden reposed on the accused can be inferred. He ruled that “there was no sufficient evidence, fit to be left to a jury, on which a jury might conclude that the appellant had acted unconsciously and involuntarily or which might leave a jury in a reasonable doubt whether this might be so…”.
47 See Eggleston, R., Evidence, Proof and Probability, London, 1978, 91.Google Scholar In Kamanga v. Rep., Crim.App. No. 109 of 1980Google Scholar and K. S. Nyirenda v. Rep., Crim.App. No. 100 of 1981,Google Scholar BANDA, J. held that the “evidential burden” which is shifted to the accused person under s. 283(1) can be discharged on a balance of probabilities. This appears to be a misunderstanding and misapplication of the standard required for the discharge of a legal burden thrust upon the accused.
48 Hill v. Rep., M.S.C.A. (Skinner, C. J. and Chatsika, and Edwards, J. J. A.), (1971) A.L.R. Mal. 180, 183.Google Scholar The Supreme Court endorsed an obiter of PIKE, Ag.CJ. on the same effect in Thomson v. Rep., (1969) A.L.R. Mal. 264,Google Scholar but it lost the opportunity to overrule or comment adversely on the earlier case of Likaku (supra) which is now widely cited as authority for the proposition that s. 283(1) shifts only the evidential burden to the accused.
50 The nearest the High Court has come to defining a shortage is the following remark by MTEGHA, Ag.J. in Rep. v. Masika, Crim.App. No. 135 of 1983:Google Scholar “my understanding is that shortage in a commercial sense means that there is a deficiency of money from trading activities i.e. stock available, the stock sold and the money collected indicates a deficiency either in stock or money.” In Hill v. Rep. (supra) the Supreme Court cautioned that s. 283(1) was aimed at all cases of theft by a public servant and not simply the so called “shortage” cases. It is however observable that it is mostly in such cases that the prosecution will rely on the presumption of guilt in the section.
51 Chatsika, J. in Rep. v. Zambia (supra) 112.Google Scholar The judge here refused to uphold the conviction f an ADMARC crop-buyer who was allegedly found with a small deficit at the end of the crop-buying season which he was repaying from his salary before he was charged.
52 Jere, J. in Chipula & Phiri v. Rep., Crim.App. No. 104 of 1981.Google Scholar The judge here refused to uphold the conviction of two barmen who were found with a stock-deficiency after a concert at the district council hall where they are employed. He argued that the shortage could have been due to short delivery of stock, breakages or some other reasonable intervention other than theft. Chidakwani v. Rep., Crim. Case No. 2 of 1982,Google Scholar is another case in which the High Court refused to uphold a conviction based on the simple fact that the books of account of a paymaster could not balance.
53 Banda v. Rep. (1971–1972) 6 A.L.R. Mal. 383, 385,Google Scholarcited with approval in numerous High Court cases including Rep. v. Kadyabowa, Conf. Case No. 1610 of 1977;Google ScholarRep. v. Mgawa, Conf. Case No. 1230 of 1976;Google ScholarRep. v. Alick Nkhawasi, Conf. Case No. 2464 of 1971;Google Scholar and Chizonde v. Rep. Crim.App. No. 1977, of 1977,Google Scholar c.f. Jimmy Wiskis Nowadays Banda v. Rep., H.C., Crim.App. No. 175 of 1975 and M.S.C.A., Crim.App. No. 12 of 1979.Google Scholar
54 Rep. v. Phillipo Kumanda Banda, R.M.C., Lilongwe, Crim. Case No. 187 of 1979;Google ScholarMaster Banda v. Rep. H.C., Crim.App. No. 54 of 1980;Google ScholarAndiseni v. Rep., H.C., Crim.App. No. 41 of 1982Google Scholar and Wilfred Dilli v. The Rep., H.C., Crim.App. No. 167 of 1977.Google Scholar
58 Hill v. Rep., (supra) is one example of a leading case in which all the necessary evidence of theft by a public servant was proved by the prosecution.
61 See Hansard, 3rd Session, 1965, 187 where M. E. Blackwood, M.P. for Blantyre, Leader of European Representatives in Parliament and a prominent lawyer, drew the attention of the government side to the anomalies of s. 283(4), in its original form.Google Scholar
62 Penal Code (Amendment) Act No. 20 of 1973 and Hansard, 10th Session, 10 to 11 1973, 210.Google Scholar
63 Proviso (a) to s. 283(4).
65 The value of 1 MK in 1973 was about UK £0.50. At the end of 1986 1 MK was about UK £0.33.
67 In Rep. v. M'Cheswa, Conf. Case No. 1572 of 1977, for example, Mead, J.Google Scholar refused to confirm a sentence higher than the mandatory term because the trial court had not indicated “compelling reasons” for the departure from the mandatory term. c.f. George Nyirenda v. Rep., Crim.App. No. 60 of 1978,Google Scholar where JERE, J. enhanced the sentence for theft of K151.73 from the mandatory term of 2 years to 2½ years. Apart from the observation that this was a “bad case deserving more than the minimum period”, the judge did not elaborate on the compelling reasons for the enhancement. This case remains a rare and isolated example of this type of departure from the mandatory sentences. The judge made no reference to the earlier authority of M'cheswa. In Chilimsungwi v. Rep., Crim.App. No. 91 of 1978,Google Scholar on the other hand, CHATSIKA, J. felt that the mandatory term was inadequate for theft of about K158.50 from a postal matter by a Post Office worker. The compelling reasons were that the stolen money “could have been needed for all kinds of possible reasons” such as school fees, the purchase of food or some other urgent purposes”. However, “with some reluctance”, he confirmed the “inadequate” mandatory term of 2 years since learned State Advocate “did not seek to argue on the question of sentence”!
69 Namate v. Rep. M.S.C.A., Crim.App. No. 11 of 1975.Google Scholar In sentencing an employee of a company to the prevailing maximum term of 7 years for theft of K9, 709, a High Court judge had taken note of the fact that the minimum term would have been 14 years if the accused had been a public servant. The Supreme Court reduced the sentence to 6 years and ruled that the maximum term should be reserved for the worst example of the offence which this case was not. Rep. v. Dzuwa, H.C., Crim.App. No. 5 of 1975Google Scholar provides another example of the comparatively lighter sentences imposed on ordinary servants. An employee of the Import and Export Co. was sentenced to 8 years imprisonment for theft of K.25,788. The company from which he stole was principally owned by the M.D.C., and had he been an employee of this statutory corporation, as a public servant, he would have been sentenced to not less than 14 years imprisonment.
72 See ss. 15 and 346 of the Criminal Procedure and Evidence Code, Cap. 8:01, Laws of Malawi.
75 See, for example, Khunga v. Rep., Crim. Case No. 52 of 1981,Google Scholar and Rep. v. Mwandoloma Conf. Case No. 2204 of 1976Google Scholar where MEAD, J. said: “In my view it is not the intention of the legislature that where a public servant commits a series of offences involving theft over a short period of time he should be so charged and sentenced to a cumulative sentence far in excess of the mandatory minimum sentence for the total amount he had stolen”. The same judge recommended in Michael Pangani Zulu v. Rep., Crim.App. No. 191 of 1978Google Scholar that a similar attitude should be adopted in sentencing a public servant who has asked the court to take into account other untried offences. Concurrent sentences should be imposed in such a way that the accused would not serve more than the minimum for sums admitted stolen.
76 S. 127(1) of the Criminal Procedure and Evidence Code.
80 See, for example, Rep. v. Katsabola, H.C., (1971) A.L.R. Mal. 200;Google ScholarRep. v. Regson Joshua Kqyenda, H.C. Comf. Case No. 469 of 1973;Google ScholarRep. v. Bauleni & Limbani, Comf. Case No. 2693 of 1976;Google ScholarBernard Mitambo v. Rep., M.S.C.A., Crim.App. No. 3 of 1977;Google Scholar and Mpila v. Rep., H.C. Crim.App. No. 101 of 1981.Google Scholar
82 p. 5 of transcript.
83 p. 2 of the transcript of the dissenting judgment.
85 See, for example, Phillips, O. Hood, A First Book of English Law, 7th ed., London, 1977, 195–198.Google Scholar
87 Statute Law (Miscellaneous) Amendments Act, No. 6 of 1987, s. 2.
89 I am indebted to G. G. Kaliwo, Counsel for Msiska, for this piece of information and for general stimulating exchanges on the law of thefts in the public service in Malawi.
96 This is the language of Skinner, C. J. who observed in Rep. v. Katsabola, (1971) A.L.R. Mal. 200, 203Google Scholar that “the whole community would be scandalised by the showing of undue leniency” through the imposition of fines as the appropriate penalty for theft in the public service.
97 See Charles Bezani Mangila v. Rep., Crim.App. No. 17 of 1976Google Scholar and the cases cited in note 22 above. However JERE, J. in similar circumstances insisted on imposing custodial sentences in Rep. v. Gresham, Gilbert Banda, (supra) and in Rep. v. Kasalika and Chimphonia (supra).
101 Michael Pangani Zulu v. Rep., n. 75, supra.