Satire: Big Kahuna in British envoy’s expulsion case

Webster Thom, Prof Etta Banda, and Mr Edward Sawerengera v The State (Criminal Appeal No. 2002 of 2011)

IN THE NYASALAND SUPREME COURT OF APPEAL

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NSCA CIVIL APPEAL NO. 2002 OF 2011

(Being Nyasaland High Court Civil Cause No. 2474 of 2011)

BETWEEN:

Webster Thom, Prof Etta Banda, and Mr Edward Sawerengera ………APPELLANTS

AND

The State………….RESPONDENT

BEFORE:

The Honourable Chief Justice Mbuchindele

The Honourable Justice Terminator, JA

The Honourable Justice Angel of Doom, JA

Ndirande Love SC, BigMan, Namoyo, Tataika and Associates; Counsel for the Appellant

Mwenelondo SC, Mamame and Co; Counsel for the Defendant

Mr. Azeke, Official Interpreter/Recorder

Webster Ryson Thom Mutharika , also known as Bingu wa Mutharika

LEGAL QUOTE OF THE DAY:

“To some lawyers, all facts are created equal.” Felix Frankfurter

DIPLOMATIC QUOTE OF THE DAY:

“Diplomats are just as essential to starting a war as soldiers are for finishing it… You take diplomacy out of war, and the thing would fall flat in a week.” Will Rogers

JUDGMENT

The parties in this case are Webster Thom, Prof Etta Banda, and Mr Edward Sawerengera, as the Appellants, and the State, as the respondent. In the High Court of Nyasaland, the State is prosecuting Webster Ryson Thom, Prof. Etta Banda, and Mr Edward Sawerengera for recklessly putting the lives and welfare of vulnerable and ordinary Nyasalandans at risk through their unwarranted and needless expulsion of the British Envoy, H.E. Mr Fergus Cochrane-Dyet who allegedly “insulted” Webster Thom (the first appellant in this case, being the first defendant in the High Court case) in a leaked cable.

In the writ of summons presented before the lower court, the state, inter alia says:

“The expulsion of Mr Fergus Cochrane-Dyet, needless and unwarranted as demonstrated by the recent sudden about turn by the government, was a criminal act that:

  1. exposed Nyasalandans to economic hardship never witnessed in living memory which the government attempted to window-dress with a so called “zero deficit budget”;
  2. contributed to scarcity of foreign exchange that resulted in shortages of fuel and other strategic products;
  3. adversely affected several pro-poor programmes and projects;
  4. resulted in worsening of relations with several donor countries and institutions sympathetic to the United Kingdom; and
  5. was in part, a cause of the unrest currently sweeping the country due to economic hardships.”

The state further submits that that the defendants were very much aware of the possible adverse consequences of their action, having been forewarned, as to how it would negatively impact the people of Nyasaland – more so the poor whose livelihood, in terms of fertilizer and farm inputs, school and education, availability of medicines, and medical personnel salaries, inter alia, are heavily funded or subsidized by British aid.

The action, the State say, was a criminal act of recklessness and since these three spearheaded it, they have a case to answer, hence their indictment. The state concludes that the decision and the subsequent expulsion was neither made in good faith nor with the welfare of the people of Nyasaland at heart and was not done in a manner that can be termed “consultative” in keeping with the current democratic dispensation,

“In consequence, the economy – already in very bad shape as a result of other bad economic policies and lack of prudent management – took a nosedive that resulted in unrest in which some people even lost their lives. The three should be held responsible for the economic sufferance, the deaths and current state of affairs” it reads.

Raising objections on behalf of their client, Counsel for the Appellants, Ndirande Love SC argued that the expulsion was fitting treatment for the British Envoy. As argued in an open letter to the British Secretary for Foreign Affairs Mr William Hague, dated May 22, 2011, tendered in evidence in the lower court, counsel for the appellants argued that:

“Your (the British) diplomat was damn wrong. He had come to Nyasaland to do a job and he did that job wrong. The British government sent him to be a friend of Nyasaland and not to play politics or to police or to govern Nyasaland on your behalf. He got carried away a bit too much and thought he was in control….. You don’t need to be an anthropologist for you to know that the letter he wrote you and purposely leaked was undiplomatic….

You can take back as much aid as you want but your messing about with our relationship with the British people is unacceptable. We don’t care about the money, you can keep it. We care about our relationship with the Scots more especially, the Irish and the Welsh.”

(Exhibit No 1: http://ndirandelove.blogspot.com/2011_05_01_archive.html )

Responding to the submission by the learned Ndirande Love, the state counter-argued that if the expulsion was in good order and in keeping with good diplomacy and if it was worth British aid withdrawal and if indeed it was in true that Nyasaland did not care “about the money”;

  1. Why were various claims made by Webster Thom and his agents that the Nyasaland-UK relationship was intact?
  2. Why was recently, a high level delegation sent to London to smooth things over?
  3. And, why has the government of Nyasaland, with tail-between-its’s-legs, done an about-turn and apologised to the British Government through the reversal of the deportation order?

The lower court ruled that the three have a case to answer hence this appeal by Ndirande Love SC on behalf of his clients.

The general principles:

The case put forward by the state is one of criminal recklessness. Criminal law recognizes recklessness as one of the mens rea elements to establish liability. It shows less culpability than intention, but more culpability than criminal negligence. The test of any mens rea element is always based on an assessment of whether the accused had foresight of the consequences and desired to cause those consequences to occur. The three types of test are:

  1. subjective where the court attempts to establish what the accused was actually thinking at the time the actus reus was caused;
  2. objective where the court imputes mens rea elements on the basis that a reasonable person with the same general knowledge and abilities as the accused would have had those elements, although R v Gemmell and Richards deprecated this in the UK; or
  3. hybrid, i.e. the test is both subjective and objective.

The modern definition of recklessness has developed from R v. Cunningham (1957) 2 AER 412 in which the definition of ‘maliciously’ was held to require a subjective rather than objective test when a man released gas from the mains while attempting to steal money from the pay-meter. As a result the gas leaked into the house next door, and partially asphyxiated the man’s mother-in-law:

  1. In any statutory definition of a crime, malice must be taken … as requiring either:an actual intention to do the particular kind of harm that in fact was done; or
  2. recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).

Since then, the pendulum has swung between subjective and objective, and currently rests nearer to the subjective end of the scale.

In civil court, a wrongdoer who recklessly causes harm can often be held to the same liability as a person who intentionally does so.

In R v Caldwell (1982) 1 AER 961: Caldwell, a disgruntled former hotel employee who had recently been fired by his boss, got very drunk one night in late 1979 and decided to set fire to his former employer’s hotel, intending to damage the property. At the time he set the blaze, however, there were ten guests asleep inside the hotel, and though the fire was extinguished quickly, Caldwell was charged not only with arson (to which he pleaded guilty), but with the more serious charge of arson with intent to endanger human life.

In English law, the offence of “arson” was abolished in the Criminal Damage Act 1971, although the use of the word was retained to express the particular “horror” with which the public views offences involving the deliberate use of fire. Caldwell was convicted under s1(2) Act 1971, which requires that the defendant shall:

  1. intend to destroy or damage any property or be reckless as to [the same], and
  2. intend by the destruction or damage to endanger the life of another or be reckless as to whether the life of another would be thereby endangered.

Application of the Principles to this case:

The facts that gave rise to this appeal are simple. The respondents are all persons holding or who were holding positions of trust and power in Nyasaland. They considered, after a leaked cable, that they had a grievance against the High Commissioner of a friendly country, the United Kingdom (UK). The UK happens to be Nyasaland’s major donor.

In the month of May, 2011 severally or jointly, alone or with others, they conducted a series of meetings and arrived at a decision that saw the British High Commissioner deported – despite advice and appeals, local and international, no to do that for the sake of the relations of the two countries.

As a result of their action(s) relations between Nyasaland and the UK soured; resulting in freezing of aid. The said aid was targeting the health, education, agricultural sectors and a huge chunk was in the form of unrestricted budgetary support. The defendants have in lower court submitted that, the consequence of the expulsion i.e. the withdrawal of aid:

  1. exposed Nyasalandans to economic hardship never witnessed in living memory which the government attempted to window-dress with the so called “zero deficit budget”;
  2. contributed to scarcity of foreign exchange that resulted in shortages of fuel and other strategic products;
  3. adversely affected several pro-poor programmes and projects;
  4. resulted in worsening of relations with several donor countries and institutions sympathetic to the United Kingdom;
  5. was in part, a cause of the unrest currently sweeping the country due to economic hardships.

In R v G & R [2003] 3 WLR, the House of Lords held a subjective standard now applies to criminal damage:

“A person acts recklessly with respect to:

  1. a circumstance when he is aware of a risk that it exists or will exist;
  2. a result when he is aware of a risk that it will occur;
  3. and it is, in the circumstances known to him, unreasonable to take the risk.”

From the above facts, that have not been disputed, the appellants were of the consequences of their actions. It is the opinion of this court therefore, that a person charged with a criminal reckless offence is ‘reckless as to whether any such life, property, or livelihood would be destroyed or damaged or indeed if some people suffer as a direct result of his action’ if

  1. he does an act which in fact creates an obvious risk that life, property, or livelihood would be destroyed or damaged or indeed if some people suffer, and
  2. when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.

Where the charge is under the question of the state of mind of the accused must be approached in stages. First, the court must be satisfied that what the accused did amounted to an offence either because he actually intended to destroy or damage the property or because he was reckless (in the sense described) as to whether it might be destroyed or damaged. Only if they are so satisfied must the court go on to consider whether the accused also either actually intended that the destruction or damage of the property should endanger someone’s life or was reckless (in a similar sense) as to whether a human life might be endangered.

Therefore the Appeal must fail. The second and third appellant have a case to answer, the first appellant, by virtue of being the Big Kahuna of Nyasaland, is immune from prosecution under criminal law. However, he could be prosecuted and found liable under civil law by those that suffered as a direct result of his actions. Further, his criminal case can be resuscitated when ceases to hold office or in the unlikely event that parliament strips him of immunity.

DELIVERED in Open Court this 18th day of October 2011, at Blantyre.

Sgd        Mbuchindele,  CJ ;Sgd  Terminator,  JA; Sgd Angel of Doom,  JA

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