Lawyer Madise in defence of Matemba and ACB: Republic Vs Senzani

Starting with the live coverage of the Dr Conrad Murray [Michael Jackson murder] trial to the Oscar Pistorius trial, we have witnessed a ‘mediasation’ of the law. By the end of the ‘OP’ trial, almost anyone who cared could venture in a legal opinion of how the state and the defence had performed and how Judge Thokozile Masipa had or had not got the verdict right. It was therefore expected that the sentence imposed by the High Court in Republic v Senzani would result in a furore and a backlash against the Anti-Corruption Bureau (ACB). Its Deputy Director, Reyneck Matemba had to give some justification to a largely dissatisfied media. This article makes an attempt to show that maybe the criticism against the ACB and Matemba may be unwarranted. It argues that there is blame, yes, but maybe it lies elsewhere.

Author: Sunduzwayo Madise

Author: Sunduzwayo Madise

Treza Senzani was charged with theft of public funds under the Cashgate affair. She pleaded guilty to stealing K63 million ($150,000) as well as money laundering. She was sentenced to9 months imprisonment on the charge of theft and 3 years for money laundering. These sentences are to run concurrently. The maximum she can serve is 3 years.

The public outcry came after people thought that Senzani’s sentence was too lenient and blamed the State for charging her with common theft.It is said even the presiding Judge wondered the more serious offence of ‘theft by public servant’ was not proffered. Matemba’s argument that this was ‘because she still could have dipped her fingers in the public kitty even if she was not a public servant’ was described as ‘balderdash’.

It is clear that the public wanted Senzani to be charged with theft by public servant, which ensures a long jail sentence upon conviction. Now herein lies the problem. Theft, also called, simple theftand theft by public servant are two different species of theft. When a public servant steals from the public; that does not automatically translate to theft by public servant.

ANALYSIS OF THE LAW

Theft

The maximum general punishment for theft is 5 years. But even the 5 years is usually reserved for the worst offenders. In law the usual saying is that the worst offender is not yet born. The reasoning is simple, suppose you sentence a person who has stolen X amount to the maximum 5 years; what happens when the next person steal X +1 or even 2X, 10X, 100X or indeed more?

By comparison, a person found guilty of robbery can spend up to 14 years.If one steals a bicycle (njinga ya kabaza) then the sentence is 10 years! These are the maximum. This comparison is deliberate so that public can begin to identify where the problem lies.

Theft by public servant

Simply put, the law is that if public employee has by virtue of that employment received or has had in her custody or under her control any money and such person has been unable to produce to her employer such money or to make due account therefor, then unlessshe satisfied the court to the contrary, she shall be presumed to have stolen the money.The punishments for this are on a graduated scale, but anything exceeding K80,000.00 leads to a maximum of 14 years imprisonment. If we look at the elements of this offence, it means that the State must prove several things. The tricky part though is proving that the accused was in custody of the money stolen, or it came into her possession by virtue of employment. If we look at the Cashgate cases, we see that it is not only public servants that are being accused and tried. This means that the people alleged to have stolen the money did not do so by virtue of being public servants. It is on this basis that the charge of simple theft would be a preferred one.

The decision to prosecute is never an easy one. The State must consider not only the charges but the likelihood of getting a conviction on a standard of proof beyond reasonable doubt. In this case, theft was proffered because, in my opinion, it was deemed a safe charge which was more likely to result in a conviction.

Money Laundering

Senzani was also charged with money laundering. The maximum sentence for money laundering is 10 years or a fine of K2 million. For whatever reason, there seems to be less outcry regarding this charge. Yet compared to theft, money laundering is a more serious offence.The fact that the Court imposed a custodial sentence reflects the Court’s view about this particular case.

CONCLUSION

Is the Public justified in being angry? I would say it is. However I argue that the anger should not be directed to the ACB or Mr Matemba or even the Courts but it is the law that is to blame. If theft of a bicycle can be treated as a more serious offence than theft of millions then we clearly have a problem.So what needs to be done? In my view, the public, if it feels aggrieved by this, should move for a change of the law. This can be done via our Members of Parliament, Civil Society Organisations and other lawful means. A message needs to be sent that the lawmakers that the penal law in our country is out of step with societal expectations. Reforming the law is not something that can be done overnight. But without agitation or triggering effect, no reformation may take place.

For now, as the ACB states that we should expect more arrests, the public needs to brace itself that in relation to the Cashgate affair, most likely the people arrested may be charged with theft and/or money laundering.

 

For the full article, visit: http://sunduzwayo.blogspot.co.uk/2014/10/in-defence-of-matemba-and-acb-case-of.html

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34 thoughts on “Lawyer Madise in defence of Matemba and ACB: Republic Vs Senzani”

  1. kakhuni says:

    The root of the problem is the charge sheet not the Law. Who decided the charge to be theft and money laundering? We are told Treza Tenthani paid herself for services she did not provide. As an Accountant by profession myself this was simple thing to do. Firstly, who authorised payment? who signed cheques? so from my opinion there is an element of theft by public servant ( mismanagement of public funds} we entrusted her to run the ministry as PS and used her authority to steal our money (breach of trust). she defrauded her own employer. if public servant decide to steal chair will charge her/him with theft? and not theft by public servant just because he/she was not in direct control of the chair? this is so because he will not be accountable? no! In my view the word theft shall mean stealing from any other party not connected in what so ever with you, ie he is not your employer or you are not benefiting anything inform of employment and you steal from that person/entity will considered as theft. but if you are employed by your company and you decide to defraud your employer and steal anything using the opportunity of being employed I think this is theft by public servant. the process of stealing should not twist matters here.

  2. namarokoro says:

    Kodi was her house repossessed?

    1. Waa says:

      You want to posses it?

  3. Afro Jazz says:

    Good explanation…..tifela za nkalasi zomwezo basi

  4. bushafale says:

    amenewotu kungowapaka chitedze basii

  5. Blessed Banda says:

    An ammendment to these laws is urgently required. Our Civil Society, more people are suffering due to cashgate and the laws are atchaic. Do something please.

  6. Zeze says:

    Its all unfair to Malawians to place lenient charges on Mai Senzani in order to secure a softer sentence, simply for ACB to be seen to be getting convictions. I do not see anything wrong with the law. The options were clear to ACB on the types of charges that could have been placed on Mai Senzani. So, Mr Matemba should be arrested for defeating justice on behalf of Malawians. ACB and Mr. Matemba have not been “just” to Malawians and themselves. Justice should not only be seen to be done but must be done. I thought this is what ACB is doing on Mr Bophani who is believed to have tried to defeat justice in one way or the other in the cashgate scam! ACB, if you are a real bulldog pls bite Mr. Matemba on thisf!!!!!!

  7. joker says:

    Ok. If our laws are faulty, then what is not law is good. In this case, mob justice is justified. Mr Madise, this is so because as far as law is concerned, what is not forbidden by law is legal. And if that law is faulty, it follows then that what is not that law, is good. Answer Mr. Madise.

  8. Chikavu James Nyirenda says:

    Sunduzwayo, thanks for a simple, easily understoon opinion which does, to a large extent, fault our laws. One wonders why we, perhaps with the help of our learned legal minds, have not addressed these issues.

    Having said the above, there are two issues that still seem weird and questionable in the Senzani judgement and sentencing:
    1.If the maximum sentence for theft is 5 years but based on your explanation this is reserved for worst offenders. However, how did the judge arrive at 9 months for stealing MK63 million? Which may imply that without money laundering charge, she would only have done time for 9 months!

    2. You rightly wonder why people are not raising issue with the 3 year sentence for money laundering which carries a maximum sentence of 10 years. Ideally then, the sentence should have been, say, 7 years. So , I wonder, why did the judge settle on 3 years?!

    Somehow, things are not adding up hence the huge public frustration and anger with the legal system which is seen to be heavily compromised.

  9. Mbanangwa says:

    Those who are attacking Sunduzwayo Madise are wrong. You are not a lawyer yourself by profession. The lawyer is just trying to interpret the law to us. Why attack the person who is unblanketting you?

  10. Nyani wa ku Mwananyani says:

    What is the position of the law in a case where a person accepts stolen property (money) knowing that the money was stolen? Isn’t the recipient participating in laundering the proceeds of crime? Like Joisi Banda. Can you please zero in on this scenario, Mr. Lawyer?

  11. Vyachalo says:

    Malamulo athu ndi okhwima kwambiri,ndichifukwa ndende zanthu ndi zozaza.Ma janji aku Malawi timayendela chipani chilipo.A Madise akuopa kuti a Sezani angatuleke chithandauza kuti anthu ambiri awatulusa mu ndende chifukwa zifukwa zao zikufanana ndi za a Sezani koma poti ndi anthu osaziweka basi akufela mu ndende.

  12. Rasta says:

    The elections laws should also be changed. Aliyense amene ali ndi milandu kukhothi asamaimile nawo pachisankho pakana milandu yake ithe. Apapa it shows that we do not have good laws in the country. We are just paying the MP a lot of money being salary, allowances and medical bills for nothing.

    Chofunika ndi federal system basi. Chigawi chirichonse sizipanga malamulo ake. Central government a tcheya anailowetsa umbava. Aliyense azingoba basi ndi po sipazakhalanso wabwino ayi.

  13. Gunz says:

    Lawyers whether public servants or employed to safeguard public interest seem to be watching than acting. Am sure this case didn’t need conviction for us to know we have faulty outdated laws. I mean where is the pro-activeness to engage people who can change the law before issues go out of hand. Is it not you who was better informed to know where and what to change? If so what did you do? What you are doing is expecting your four year old boy to fix an ice cream making machine just because he is the biggest victim when the machine develops a problem while you are the one who knows the problem and solution. If you are a responsible dad who wants your son to be happy, get the machine fixed, point out everything that is wrong with the machine, get through it with necessary tools and fix. Your step Mr Madise is the first, awareness that lawyers know where the problem is. MLS if there is good will and integrity left should take over and get the machine to people who can fix it better. Forget the politicians to initiate that, they are the biggest beneficiaries. You love your country, show it…

  14. KUKHALA says:

    IS MASDISE & OTHER LAWYERS EITHICAL LAWYERS

    1. Rape case says:

      I doubt, amateteza amwenye ogwiliria ana uyu. And up to now case imeneyo ili ziiiiiiiiiiiiiiiiii

  15. GaluMtsukwa says:

    I am told he is teaching Law at chanco. Hey Madise, if you dont have anything tangible please shut your mouth rather than embarrassing yourself with kindergarten reasoning. Pathetic.

  16. Wawa1 says:

    Obviously, the public could clearly see that the above article was written by a Guy who went to school thru the front door. I’m not a Lawyer by profession but can see unfairness in the judgments that our learned Judges melt out on offenders. In most cases, these judgments are not fair across the board. They tend to favour the rich. As much as I agree with Sunduzwayo that our law has a problem, I would also like to point out that it is the learned men and women in Gowns and wigs that worsen the problem. On the judgments, past cases have shown that Judges dish out softer sentences to people with names, & money for very serious offenses. On the other hand; poor people with no names and negative bank balances get maximum sentences for stealing chickens. How long has Malawi operated an independent Judiciary system? Long time!! So if Mr. Sunduzwayo and his famous lawyer friends and judges knew that there were loopholes in the system, why didn’t they suggest changes. Bottom line, I don’t buy the author’s arguments.

  17. Tengupenya says:

    A controlling officer here stole by virtue of employment. if she was not employed as a controlling officer she would not have managed to steal the money she stole. It was a wrong charge! There is more than meets the public eye in this. She should have been charged with theft by public servant; and if some insurance was needed as you suggest, the charge of ordinary theft should have been in the alternative. the fraudsters, thieves and looter should not be left off easily even as we agree that certainty of securing a conviction is also important. But then why were some people charged with ominous charges of treason when more certain charges of perjury were clearly available? Selective justice pa mudzi pano!

  18. zedediya says:

    I appreciate your sharing of opinion. But really why put your face in the middle of your own article as if it we are discuss or quoting you? Typical obsession with seeking public attention and blowing your own trumpet. Komabe zomwe ukunenazo there is a little sense of course

  19. LIVESTOCK MAN says:

    Senzani judgement was and is a mockery of Malawi justice. If there is nothing wrong with this judgement then there is no hope or future for the judicial system in Malawi. This judgement has glorified evil acts of all times in Malawi.

  20. Checks says:

    Since the law is crap then what we need is mob justice!! Only mob justice will inflict adequate punishment.

  21. Kenkkk says:

    Excellent explanation!!! This is what we expect from lawyers, explaining things like these so that the layman understands!!!

  22. Quota system says:

    Very balanced facts. Well done learned lawyer Madise

  23. Mirella K. says:

    Ma lawyer anthu oip…zitsilu za anthu…chilichonse kumangonamizira law ndalama zikutha …ndanyatsudwa nanu agalu inu

  24. Waa says:

    Mwanawane Sunduzyayo!
    Nyenye tule, aye nyenye tule,
    Ati apa waneneska,
    Nyenye tule aye nyenye tule.
    Tunkhungu tungapulika
    nyenye tule aye nyenye tule.

  25. LINESS2 says:

    BUT Madise, the maximum sentence for theft is 5years as you rightly school us.

    So why would the judge ‘cook’ a sentence of NINE, yes NINE MONTHS only (sic) for a theft of Mk63 million as per the evidence available in the case under discussion? The implication is that without the money laundering charge, the convict would only be sentenced to 9 months for stealing mk63million…that’s why people are angry let alone does not understand how you judges decide on your sentences!

  26. Guest says:

    Sundu, you should be aware of the OJ Murder capture and trial, which even involved more media than any other ever. To some people it looked surrealistically like a Soap Opera.

  27. MMalawi says:

    Well said Mr Madise. Our laws should be reviewed as most of them where made in the colonial era and are now obsolete. We have advanced and technology has too. We should include cyber crime and reposition the deterring factors of other crimes so that they are seen as measures of reforming individuals and not just punishment.

  28. Changanyamaso says:

    Then Mama should have just pleaded not guilty and accept to go to jail after all it’s around 3 years. She has lost all those things and going to jail for three years that if should should not have pleaded guilty she would have had the house, money and then save the jail for the same period to come back after wards. Not good for her.

  29. Mbanangwa says:

    Tawonga Mr Madise. It is our bad laws indeed! Even if the Bingu wa Mutharika regime is audited from 2005 to 2012, it is the same story, lenient sentences. Big thieves will simply pay their 2 million fines for money laundering. Kikiki, but thank you so much for the enlightenment.

  30. Jando says:

    Senzani was a controlling officer and she got by virtue of her office as PS. She could have been charged with theft by public servant under penal code,and misuse of public office under corrupt practices act

  31. Twaniche says:

    Basi, public servants, sunduzwayo wakumasulani. Tengani ndalama mmene mungathere. Ull get 9mths only

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