Satire: Callistagate – Part II: Conclusion

General Principles:

The crucial purpose encompassed by the Corrupt Practices Act of 2004 is not merely to preserve the integrity of government and curb abuse of office and power, but to preserve the appearance of integrity as well.

Given the heavy trust and responsibility taken on by ascending to the office of the president or secretary to the Office of President and Cabinet, it is appropriate that public officials, more so the President and the Chief Secretary, are correspondingly held to stringent codes of conduct which, for an ordinary person, would be quite severe.

And this is why. Damage to the government’s integrity can occur where benefits are paid by government to public officials or their spouses even where no ill motive exists. It is inefficient for a government to be paralyzed by rumour and innuendo, with the public questioning the motivation and basis of certain benefits or advantages conferred on an official or his spouse.

Bingu and Callista Mutharika

The Corrupt Practices Act of 2004 criminalizes behaviour whereby a public official or employee or their relatives, under certain circumstances, accepts a benefit from the government based on what this court, for lack of a better word, will call “connubial” duties. The offence created is a “conduct” crime, meaning that it does not require a particular result to flow from the commission of the prohibited act.

While generally, corruption is referred to as the abuse of power for private gain; Parliament, through the Corrupt Practices Act of 2004 went further and defined “Corruption” as:

a)     the offering, giving, receiving, obtaining or soliciting of any advantage to influence the action of any public officer or any official or any other person in the discharge of the duties of that public officer, of official or other person;

b)     influence peddling;

c)      the extortion of any advantage.

Parliament, through this definition, did not intend to restrict its application solely to situations where the advantage was motivated by the recipient’s position in public office. The definition’s potentially wide application can be limited through statutory interpretation without introducing an additional element.

The first component of the definition is that any advantage be given by a person “discharging the duties of a public officer”. The proper interpretation of this is the narrow one, whereby only where persons are in the process of discharging public duties at the time of the offence is the conduct trapped under the section.

The second element of the actus reus is the receipt of that “advantage” by a “public officer, of official or other person”. The phrase “advantage” widens the scope of the provision’s reach. It was worded to trap diverse forms of benefits other than those of a strictly monetary nature.

With respect to mens rea, since this offence constitutes a “conduct” crime, it requires that to be culpable the accused know of the conduct he or she committed, and have knowledge of the circumstances in which it occurred. In order to prove the offence under the Corrupt Practices Act 2004, it is thus necessary for the State to prove the following fault as per the Act’s definition of corruption.

Since this level of mens rea is recognized as a valid form of criminal culpability, there is no need to add any additional components.  Clearly, where a public officer or other person actually possessed a corrupt intention in accepting or awarding a benefit he will usually merit a higher sentence than a person lacking such a motive. (Supreme Court of Canada – Decisions – R. v. Hinchey, [1996] 3 S.C.R. 1128)

Application of the principles to this case:

The important aim of the Corrupt Practices Act 2004 which is to ensure the integrity of public officers, should be taken into consideration in the interpretation and application of the section.

The requisite acts necessary to constitute the offence are the offering, giving, receiving, obtaining or soliciting of any advantage to influence the action of any public officer or any official or any other person in the discharge of the duties of that public officer, of official or other person; influence peddling; and /or the extortion of any advantage from the system.

The mental element of blameworthiness should be assessed subjectively and requires proof not only that the accused was aware or knew of the requisite elements of the offence but also that he knew that he received the benefit at least in part because of his position as a public official or his relationship with a public official; or that he was wilfully blind to circumstances which would lead to that conclusion; or was reckless as to the consequences of accepting the benefit, that is to say he was aware of the risk of his actions breaching the act but nonetheless took the risk of proceeding in that manner.

The evidence presented in this case indicates that the actus reus of the offence was established and there was strong and cogent evidence upon which the lower court found CM and BM guilty.

There existed the requisite intent to commit fraud, there was abuse of power, there was extortion and BM definitely hoped to get some favours from WT hence his aiding and abetting this fragrant looting of public resources,  making himself wilfully blind to the situation to the extent of being reckless as to the consequences of his actions despite being very conversant with the law.

This court upholds the decision of the lower court: Callista Thom and Bright Mkasa  are guilty as charged on all counts. They are both hereby sentenced to 14 years imprisonment with hard labour – no parole. Let this sentence serve as a lesson that the courts will not condone impunity and abuse of office.

As for, Webster Thom, while he is in all probability the unseen hand behind these heinous crimes, Chapter 91 of the Nyasaland Constitution clearly states that the President of Nyasaland cannot be sued.

While this court concedes the cogency of the principles of “Commodum ex injuria sua nemo habere debet”  and “Qui sentit commodum sentire debet et onus”; its hands, with respect to Webster Thom, are equally tied by the principle  that “Aequitas nunquam contravenit leges”. i.e. “Equity never opposes the law”.

Nevertheless, the court wants to put it on record that Section 91, which gives the President immunity while in power, puts the first citizen above the law. Further, as validated by this case, it makes mockery of the Corrupt Practices Act of 2004 and waters down the integrity and accountability the act seeks to promote. This notwithstanding, the appeal by the state must fail.

DELIVERED in Open Court this 24th day of October 2011, at Blantyre.

Sgd: Bob Nswala, CJ JA;         Sgd: Wise One, JA;     Sgd: Demented Bingu-Laden,  JA

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