Lutepo was a young successful businessman and thus contributed positively, for a while at least, to the Malawian economy. He was a first offender. He had pleaded guilty and implicated others in Cashgate crimes.
Yet Justice Kapindu still imposed an effective prison sentence of 11 years – 8years for the offence of money laundering and 3 years for conspiracy to defraud the government. Was this sentence too lenient; was it harsh? Why did the court impose this sentence? These are some of questions we tackle today.
Ordinarily, Malawian courts, as do the courts from other countries, do not impose the maximum sentence prescribed for a crime or a sentence close to the maximum prescribed, unless parliament has prescribed it as a mandatory sentence. This is because sentencing takes into account the individual circumstances of the convicted person and nature and gravity of the crime.
Moreover, although our courts normally consider the interest of society when sentencing, in our constitutional context, the role played by the retributive attitudes of the general public are not expected to feature much in sentencing proceedings. We are now a rights-based society that is committed to humane forms of punishment in which the goal to rehabilitate criminals has to predominate.
Justice Kapindu is a human rights scholar and lawyer, and so is well versed with the human rights considerations applicable to criminal punishment. So why did he impose a seemingly harsh sentence on Lutepo?
The answer lies in a variety of factors. The judge was clearly operating in a legislative scheme that did not give him enough room to exercise leniency. The maximum punishments prescribed for both offences were surprisingly low. The maximum sentence for money laundering is 10 years, that for conspiracy to defraud 3 years. In this case, the accused was charged with laundering and conspiring to defraud the government of 4.2 billion kwacha.
Compare these sentences to those prescribed for theft by public servant where the minimum sentence for the failure by a public servant to account for a few thousands of kwacha is 15 years. There is a troubling social status issue underpinning these sentences. Money laundering and fraud of the cashgate type are committed by political elites while theft by public servants is committed by low-ranking civil servants. The difference in the prescribed sentences for these offences lies in the social standing the people most likely to commit these crimes. The elite, who are most likely to commit money laundering and cashgate offences more generally, protected themselves but exposed the poor to more severe punishment.
What troubled the judge the most in this sentencing decision was the amount of money that was involved. He said that he had searched for cases where an accused was convicted of having laundered or stolen such a large amount. He did not find any. Because of the absence of comparative cases, the judge was entitled to regard this case as one of the worst forms of money laundering, even though there was some restitution. He felt, it appears to me, that he had to send a message that the courts do not expect people to steal and launder anything close to or more than that amount.
It is also clear that the judge was not impressed by the manner in which Lutepo had conducted his defence. The fact that he had pleaded guilty clearly played a negligible role in his sentence, firstly because the judge did not believe that the plea signified genuine remorse and secondly because the guilty plea was entered only after Lutepo had wasted the court’s time and state’s resources on frivolous medical examinations and other proceedings.
In short, justice Kapindu says: if a person knows that he or she willingly committed cashgate offences, it is better for to plead guilty from the beginning, show real remorse, voluntarily make restitution, and assist the state in bringing to book others involved in the crimes. Only then will a court exercise leniency.