This matter involves the purported precautionary steps that the current minister of home affairs and internal security took that resulted in the arrest and subsequent detention of employees of the national registration bureau (NRB).
On the 17th of September 2017, the minister of home affairs and internal security, Ms. Grace Chiumia went to Mzuzu Shoprite to eavesdrop on a conversation done by some National Registration Bureau officers, herein referred to as NRB officers. They had convened to discuss regarding their overdue allowances. It is on record that the minster was tipped about the meeting by a “well-wisher”. It is, however unclear as to what exact information regarding the agenda of the meeting was passed over to the Minister. It is also worth noting that the NRB falls under her ministry.
When the NRB officers took notice of her presence, and she became aware of this fact, she left the place and returned a few hours later in the company of police officers. The court is reliably informed that the police officers effected an arrest of the said NRB officers, 14 in total. They have since been charged with unlawful assembly contrary to section 72 of the penal code and conspiracy to commit a felony contrary to section 404 of the penal code. The NRB officers are now out on bail.
Matters of determination before the court
In light of the above events, the court is hereby enjoined to make a determination on the following points:
The court shall deal with the above issues in turn. The first issue that the court has been enjoined to determine, is whether there were sufficient grounds to charge the NRB officers with the said offences.
The first offence that the officers have been charged with is that of unlawful assembly. The court would do well to remind the public that it is only those acts or omissions, specifically prohibited by parliament that constitute an offence. One’s gut feelings or views towards certain behaviour, no matter how appalling it is to him or her, do not count. Religious or political beliefs are no exception either. It would also be well to remember that a crime is composed of two elements, the physical act as well as the mental element. With this fresh in our minds, the court now considers the substantive offence. For ease of reference, the relevant section containing the offence has been reproduced here, mutatis mutandis as follows:
“When three or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in a manner likely to cause persons in the neighbourhood reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, they are an unlawful assembly”
So, from the above it would appear that the assembly of the NRB officers fulfilled the prohibited physical act, and probably triggered the minsters reaction. Let me be quick to mention that the assembly of two or more people is not, in and of itself, a crime. Matter of fact, the constitution of Malawi guarantees the right of assembly. It has already been alluded to that for an act to constitute a crime there has to be an accompanying mental criminal element. The relevant section in question requires that this criminal mental element be present, it specifically states that “When three or more persons assemble with intent to commit an offence . . .” Therefore, what makes an assembly a crime, is the accompanying criminal intention thereof of the said gathering. Anything short, anything less does not and will not suffice. Promulgating any other interpretation will amount to subverting parliaments will and intention, akin to amending the operating law.
It is on record that the NRB officers have been subjected to many industrial ill treatments. From very low salaries/allowances to having a hard time getting whatever little compensation they are entitled for their services. And the court is reliably informed that the scheduled assembly was to map the way forward to resolve the issue. It is on record that they tried to engage those responsible for looking after they welfare but with no success. Hence the assembly this time around. Now, assembling to talk about your predicament is not a crime, in so far as the constitution of the republic of Malawi and Malawi’s penal code is concerned. With this background in mind I find it very horrendous to tag people who have shown patience over and over again as potential offenders.
So far there has been no evidence tendered to show that the NRB officers assembled with intent to commit an offence, or assembled to agree to commit an offence, during or after the said assembly. Which brings us to the mental requirement of this crime, assembling with the intention to commit an offence. If, and it appears so, the NRB officers assembled with no intention to commit a crime, then they were not assembling unlawfully, they were merely exercising they constitutional right. Apart from the ministers’ claims that by ordering the arrests she was just being a good citizen, no plausible evidence has been proffered to support the hypotheses that the NRB officers were assembling to commit a crime. So far it is only the ministers’ word of mouth against the law and accused.
If the minister and the police officers had directed themselves properly as to what the exact elements of the said offence were, they probably could have reached a different conclusion and no arrest could have been made. For these reasons this Court isinclined say that that the officers committed no crime, and consequently hold that their arrest was wrong and the charges are baseless.
It is trite, in law, that police officers are required to arrest on reasonable suspicion. But based on the turnout of events, it appears that the police officers acted on the instructions and influence of Mrs Chiumia. So whether the influence was exerted in her capacity as a mere citizen, or as a minster, there are still consequences attached to her actions.
The Court now channels its attention to the second offence preferred against the accused. This offence is provided for under section 404 of the constitution and is couched as follows:
“Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Malawi would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done, shall be guilty of a felony and shall be liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to such lesser punishment
The offence termed conspiracy involves a meeting of the minds. That is, the parties accused must have agreed to carry out a criminal enterprise. There has to be a common purpose, an agreement to bring about the commission of the offence. That common purpose is itself a crime, apart from any other agreements on how it should be carried out. It was stated in DPP V Dr Hastings Kamuzu Banda MSCA criminal appeal no 1 of 1995 that the commission of the offence would be complete as soon as an agreement is reached. In the case at hand, no evidence is known to exist as at what time the accused made the agreement, let alone if the agreement was reached at all. Mrs Chiumia nor the Malawi police have, so far, not proffered any evidence to support they suspicion, neither does it look like that sort of evidence will be provided.
Lord Pearson in Director of Public Prosecutions v Doot and others (1973) AC HL had this to say: “a conspiracy involves an agreement, express or implied. A conspiratorial agreement is not a contract, not legally bounding, because it is unlawful”. Reaching this far, the question that begs an answer is that of when did exactly the accused agree to carry out a criminal enterprise? And what criminal enterprise to be specific? We have already held that the accused did not unlawfully assemble.The totality of the evidence so far considered by this court shows that the accused had not agreed on a course of conduct that was meant to result into the commission of an offence and can therefore not be guilty of conspiracy to commit an offence. We therefore hold that the second charge is also unfounded and we consequently dismiss it.
We now turn to the third point of determination, that of probable grounds of malicious prosecution. Lord Holt in Saville v. Roberts (1698) 1 Ld Raym 374; 5 Mod 394 held that there are three sorts of damage any of which would be a sufficient ground to support an action for malicious prosecution. He listed them as:
(a)The damage to a man’s fame, such as where the matter he is accused of is scandalous;
(b)Where a man is put in danger to lose his life or limb or liberty; and
(c)Damage to a man’s property, as where he is forced to spend his money in necessary charges to acquit himself of the crime which he is accused.
It would appear that all sorts are satisfied in the present case.
Madise j, in Joseph Jonathan Zinga V Airtel Malawi LimitedCivil Cause No. 74 Of 2014 stated that malicious prosecution is the institution of a criminal or civil case maliciously without probable cause and he went further to list the six elements of the tort as follows; commencement of proceedings, legal causation by defendant, termination in favour of the plaintiff, absence of probable cause for such proceedings, presence of malice and damage to the plaintiff by reason thereof. Once these elements are satisfied the tort of malicious prosecution succeeds.
We will start with the first element, then the second, skip the third, deal with the remaining three and finally deal with the third element. The significance of this “order” shall be appreciated in due course.
Turning to the first element, the plaintiff must have been prosecuted or the law must have been set in motion against him on a criminal charge. This element has already been satisfied as we are all well aware that the NRB officials are answering two criminal charges.
As for the second element, the law must have been set in motion. According to Danby v Beardsley (1880) 43 lt 603, a prosecutor is a man who instrumental in putting the law in force. In the Zinga case, Madise j said that any person who takes an active part in the initiation, continuation or procurement of a civil or criminal proceeding may be liable for this tort. Ms. Chiumia perfectly fits this description. We all know that but for her actions, the NRB officers could not have been arrested. There was legal causation by the minister.
Skipping the third element, we now get to the fourth element, which is lack of probable cause. Here, the plaintiff is required to demonstrate that he was arrested without lack of reasonable cause. To zoom in on the current case, the plaintiffs are required to show that in influencing their arrest, Ms. Chiumia acted out of zeal and excitement and not reasonably. There has to be a probable cause. Mere belief, as was held in Meering V Graham White Aviation Company 1919 122, is not enough. From this bench, it is very had for yours truly to imagine hapless employees who had already been complaining of unfair treatment assembling in an open public space to agree on committing an offence; not a misdemeanour but a felony for that matter. Even with the biggest justice-monocles, this Court cannot pick up the slightest trait of reasonableness in the ministers actions, we therefore hold that she acted unreasonably.
The fifth element that is required to be proved is that of malice. It is trite law that the proper motive of prosecution is a desire to secure the ends of justice, as per Chimasula J in Sudi Sulaimana V The Attorney General Civil Cause No 3273 of 2002. Malice means no more than a lack of proper motive for the instigation of the prosecution. Looking at the background of the assembly, there was no reason to believe that criminal activities were to take place. On the sixth element, psychological damage was done to the accused during they stay in a police cell.
Lastly, the third element. This is tackled last to highlight the special significance it has in relation to the case at hand. This element has not yet been satisfied. But it has to be kept at the front of our minds that the laid charges have already been debunked as baseless. As per Chimasula j, “. . . to succeed in on a claim for malicious prosecution, the plaintiff must show that there was no reasonable prospect of success with the proposed prosecution and the prosecution has been instigated by the defendant who had acted with malice”. The debunking of the laid charges gives weight to the assertion that the matter will be terminated in favour of the accused.
As it is at the moment, five elements have been satisfied, and this is the only one remaining. And there is a very big chance that it will also be satisfied, since there is a very big likelihood that the matter will be terminated in their favour. We therefore say that the accused herein should commence an action of malicious prosecution as soon as the criminal matter is determined in their favour.
Moving on to the final matter for determination, which is whether the accused persons herein have sufficient grounds to sue for the tort of defamation. Every person has a right to a good name and not to be defamed. Defamation, according to the Merriam-Webster dictionary, is the act of communicating false statements about a person that injure the reputation of that person.
In the Zinga case, Madise J, stated that it is the intentional false communication published or publicly spoken that injures another’s reputation or good name and holds a person to ridicule, scorn or contempt in a respectable and considerable part of the community. There are three elements that are required for a tort of defamation to succeed, and these are false story, Publication to third party and Injury to reputation. Looking at the first element, we all now know that the narrative that was espoused by the minister was false. In so far as relevant evidence is concerned, the court has not found any evidence of any criminal intent on the part of the accused.
The second element is that there has to be a publication of the false story. The citizenry got to hear of what happened in Mzuzu largely through the media I.e. through publication by third parties. The story almost developed a life of its own. As such, I hold that the second element has also been satisfied.
The subsequent arrest and detention of the NRB officers no doubt soaked the NRB officer’s reputation in the mud. They were certainly viewed as mischievous by certain sections of the society. Apart from the suffering the unlawful arrest itself, their reputation was injured. This Court is satisfied that the accused were, in this case, defamed by the minister and we accordingly hold that the NRB officers have sufficient grounds for the tort of defamation.
Having laboured to state what the position of the law is as regards to the above matters, the Court hereby make the following determinations:
Pronounced in the open Kangaroo Court on 29th September, 2017.
Sean Mateus (Visiting Judge)
Lord Denning (Judge)
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