I should say that am not a lawyer, and that this write up, courtesy of the Canadian Bar Association, can benefit from those qualified in this field and knowledgeable in the laws of Malawi.
My personal experience at the hands of the Malawi Police and two reported occurrences have prompted me to dare into this field where even angels fear to trod. The first occurence is the case of journalist Ernest Mhwayo, who was arrested for allegedly taking pictures of President Bingu wa Mutharika’s Ndata Farm without permission. He was reported to have pleaded guilty.
The second is the recent experience of Thlupego Kaluli Mgawa Chisiza, arrested on Sunday December 18 for staging a political satire, Semo.He too pleaded guilty to the charge of staging a play without a permit from Censorship Board.
The result of pleading guilty is that one is convicted, and this has implications and a criminal conviction could seriously affect someone for the rest of their life. My take and advice is that one should only plead guilty after thinking carefully about the situation and if possible only after talking to a lawyer. More importantly, I submit that pleading guilty is not an option.
Steps to take before deciding how to plead:
First and foremost, it is important to get clarification on these two things:
· the particulars of your alleged crime (the written reports by the police officers and witnesses); and
· the initial sentencing position (the likely sentence if you plead guilty). Review this material, with a lawyer if possible.
If you are charged with a criminal offence, the temptation is to plead guilty and get it over with. If you plead guilty, you will have a criminal record and a penalty (sentence). Both these can seriously affect you. A criminal record can prevent you from traveling to other countries, getting certain jobs, getting loans from some institutions, being bonded (which some jobs require), and running for public office.
Innocent until proven guilty:
Even if you believe you are guilty, it’s still all right to plead not guilty, and make the State prove the case. The law presumes that you are innocent, and the State must prove that you are guilty.
Only when you know that you are indeed guilty and that the State will easily prove it, then pleading guilty becomes an option. One should note however that it is easy for the police (like ours) to convince you that you’re guilty when in fact you’re not.
There could be a legal defence to the charge that you don’t know about and the police will not tell you about this. This is why it is very important that you review the particulars with a lawyer if possible to help you decide what to do.
If you plead not guilty, a trial date would be set and at the trial, the State must prove the allegations of the offence.
How do you plead guilty?
If after reviewing the particulars you decide to plead guilty, it’s fairly straightforward. You get an official document telling you when you have to appear in court for the sentencing. During the sentencing hearing, the State will tell the judge about the facts of the offence, usually reading from the police report and witness statements. Listen carefully, because if you DISAGREE with anything, you can say so later.
In fact, you should only plead guilty if you agree with ALL the important facts. For example, if you agree that you hit your spouse, you could plead guilty to an assault charge. But if you hit your spouse only after your spouse punched and kicked you first, and that part is not in the police report, then the judge may not accept a guilty plea. Instead, he or she may order a trial.
Or the particulars may say you punched someone, but you say you only pushed them. In these instances, you have to tell the court your version of what happened and explain that you disagree with what the State said. The State and the judge have to decide whether to accept your version of the events.
What will the judge do?
The judge may ask you questions, such as whether you disagree with anything the State said. You might agree that you are guilty but disagree with some of the circumstances. The judge may ask you why you committed the offence. Sometimes that’s hard to answer because you may not know. If that’s the case, say so. If you feel bad about what you did, tell the judge, even though you are embarrassed. If the judge believes that you are sincere, and remorseful, that will help.
Factors to mitigate your sentence
The judge will want to know some things about you, such as your age, your marital status, how many people you support, if you are working and your plans. It’s important to give the judge any important information about these things. For example, if you don’t have any money to pay a fine, or if a criminal record would ruin your plans for finding a job, explain those things to the judge.
After everything is said, the judge will give you a sentence, or penalty. Depending on the offence and your background, it could be a discharge, a fine, probation, or jail.
If you are fined, you may ask for time to pay and depending on the amount of the fine, the judge may give you time to pay. If you do not understand something through the trial process, ask the judge to explain it to you in plain terms.
Submitting a guilty plea, whatever the circumstances, should be the last option. Before the law one is innocent until proven guilty!Follow and Subscribe Nyasa TV :