DPP Kachale deals deadly blow to Lutepo’s cashgate confessions

The Director of Public Prosecutions (DPP), Mary Kachale, has explained that at law, a criminal offence confession by a person is only evidence against him and no other person can be convicted on the basis of a confession made by another.

In a statement, Kachale said the mentioned person might only be liable if they adopt the confession in which they are mentioned or implicated.

“It is for this reason that it is imperative for investigating authorities to subject such confessions to verification to determine the truth and also to cross check if any accomplices mentioned in them did play the roles that they are alleged to have played. However, the investigator may use the leads in a voluntary confession,” reads the statement published in The Nation of Thursday, December 18, 2014.

The DPP’s ‘clarification’ comes fast on the heels of confessions and revelations by chief cashgate suspect Oswald Lutepo, who recently alleged that he was engaged by the former President, Joyce Banda, to siphon huge sums of money from Capital Hill.

He told a local radio station part of the loot was duly ‘surrendered’ to the former Head of State every time it materialized.

The DPP noted in the statement that some accused persons in the on-going cash gate trials have approached the office of the Director of Public Prosecutions and the Anti Corruption Bureau in writing and otherwise, seeking to confess their crimes and to render assistance to these offices by revealing the names of their accomplices.

“Most have been doing this proposing that the prosecuting authorities agree to persuade the court that they be given non-custodial sentences in respect of the offences they have been accused of,” reads the statement, adding that so far, “and to the best of my knowledge”, the prosecutorial offices have not entertained any such requests for two main reasons.

“Firstly, because though the Criminal Procedure and Evidence Code makes provision for plea bargaining, the procedural framework for plea bargaining is supposed to be set down by the Chief Justice and so far no such plea bargaining rules have been promulgated. Hence, there is no legal framework within which any plea-bargaining arrangement can be made.

“Secondly, because the expectation of the accused persons that if they confess their crimes the prosecuting authorities should agree to support Defence proposal for non-custodial sentence is a mockery to the suffering Malawians have endured as a consequence of the accused persons role in the plunder of Public money in 2013,” reasons Kachale.

However, the DPP explains that it is in the public interest that society must get to know the real story behind cashgate and that all offenders must be tried and those found guilty must face their due penalties.

One way of getting to the bottom of the case is through audit and investigation, she says.

“So far the persons now before the courts were discovered through such audits and investigations. Another mode of getting to know the truth is through voluntary confessions by the accused regarding their role in the crime. The law recognizes both modes but sets strict parameters within which the latter may be utilized.

The DPP noted that all accused persons have the right to remain silent and “my office and the investigating and prosecuting authorities will not force or induce anyone to make any confession”.

However, she said, as individuals are free to waive their right to remain silent, those that want to divulge their version of events should only do so voluntarily.

It is advisable that they must have consulted their lawyers prior to engaging law enforcement offices or indeed the general public with their confessions, she adds.

She said confessing in the media “may not be helpful”.

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