sentencing in malaw, an overview
TRANSCRIPT
Judicial Discretion and Mandatory Minimum Sentencing Legislation: An Overview of
the Development of Sentencing Practice in Malawi
By Austin Msowoya
Paper presented to the OSF-SA Sentencing Conference, Cape Town, South Africa
October 24-26, 2006
i
Table of Contents
Acknowledgements ...................................................................................................... ii
Table of Cases ............................................................................................................ iii
Table of Statutes ......................................................................................................... iv
Introduction ......................................................................................................................... 1
Sentencing Practice and Prison Populations ....................................................................... 2
Sentencing procedure, sentence disparities and Judicial discretion .................................... 4
Prison Conditions .............................................................................................................. 14
Community Service .......................................................................................................... 16
Mandatory minimum sentence statutes since 1964 .......................................................... 17
Public opinion, the media and sentencing practice ........................................................... 19
Sentencing reforms in other jurisdictions ......................................................................... 20
Conclusion ........................................................................................................................ 26
Bibliography ............................................................................................................. 27
ii
Acknowledgements
This paper was developed within a relatively short period. Less than seven days to be
exact. The implications are evident in the paper’s lack of depth in research resources, and
over – reliance on the token available resources, interviews and rape and defilement
cases, which proved easy to access from the Commission’s unreported case archives.
Unfortunately this also means the standpoint of presentation is narrower than desirable.
Nevertheless it is hoped that this work will not only prove useful to the conference but
will mark the commencement of comprehensive research efforts at the Commission
towards complete reform of the sentencing practice in Malawi. Needless to say I take full
responsibility for all errors, oversights and misquotes, both obvious and latent in this
paper.
Austin B. B. Msowoya,
Law Reform Officer
Malawi Law Commission
Philemon House
African Unity Drive
City Centre
P/Bag 373
Lilongwe 3
Malawi
Phone: +265 1 772 841
Fax: +265 1 772 532
E-Mail: [email protected]
iii
Table of Cases
R –v- Ajasi Pindani, Confirmation Case No. 1159 of 1995, Principal Registry (Unrep)
R –v- Andrew Chikatha, Confirmation Case No. 1602 of 1998, Principal Registry (Unrep)
R –v- Biziwick Mkoma, Confirmation Case No. 334 of 1995, Principal Registry (Unrep)
R –v- Chavula & Another (1990) 13 MLR 379
Erick Chikwawa –v- R, Criminal Appeal Case No. 8 0f 1999, Principal Registry (Unrep)
R –v- Faison Pathewe and Naison Mangombo, Confirmation Case No. 295 of 1996,
Principal Registry (Unrep)
R –v- Harrison Billie, Confirmation Case No. 1221 of 1997, Principal Registry (Unrep)
R –v- Harrison Nyozani and Others, Confirmation Case No. 312 of 1995, Principal
Registry (Unrep)
R –v- Kachepa, Confirmation Case No. 1130 of 1993, Principal Registry (Unrep)
R –v- Lingson Sapali, Confirmation Case No. 618 of 1997, Principal Registry (Unrep)
R –v- Maliam Adamson, Confirmation Case No. 240 of 1995, Principal Registry (Unrep)
R –v- Maluwa Fabiano, Confirmation Case No. 211 of 1996, Principal Registry (Unrep)
R –v- Msowoya, (1987 – 1989) 12 MLR 394
R –v- Nambazo Liwonde, Confirmation Case No. 934 of 1995, Principal Registry (Unrep)
R –v- Payili, Confirmation Case No. 724 of 1997, Principal Registry (Unrep)
R –v- Peter Laiton, Confirmation Case No. 1437 of 1997, Principal Registry (Unrep)
R –v- Phameya, Confirmation Case No. 1070 of 1994, Principal Registry (Unrep)
R –v- Phiri, Confirmation Case No. 777 of 1994, Principal Registry (Unrep)
R –v- Phiri & Others (1993) 16 (2) MLR 748
R –v- Roberts, [1982] 1 All ER 609
R –v- Robson Botomani, Confirmation Case No. 1097 of 1997, Principal Registry
(Unrep)
iv
R –v- Taona Navaya Revision Case No. 3 of 1996, Principal Registry (Unrep)
R –v- Topeyani Chimseu, Confirmation Case No. 1112 of 1997, Principal Registry
(Unrep)
Republic-v- Zagwa, (1923 – 1960) 1ALR (Mal) 415
R –v- Zingano & Another (1993) 16 (2) MLR 755
R –v- Zuzee Luwizhi, Revision Case No. 4 of 1996, Principal Registry (Unrep)
Table of Statutes
Constitution of Malawi, s. 7, s. 8, s. 9, s. 11, s. 169
Criminal Procedure and Evidence Code Cap 24, Laws of Nyasaland, s. 310
Criminal Procedure and Evidence Code, Cap 8:01, Laws of Malawi s. 260, s. 321, s.
364A
Community Service (General) Rules, r 12
Corrupt Practices Act, 1995 s. 34
Penal Code, Cap 7:01, Laws of Malawi, s. 32, s. 283, s. 286
Criminal Justice Act, 1999 of England, s. 1(2), s. 6(1)
1
Introduction
Malawi does not possess mandatory minimum sentence legislation. It seems unlikely
such legislation will be enacted in the present generation, or in the foreseeable future. We
are steeped in common law traditions, and the judiciary strongly considers sentencing as
the exclusive preserve of judicial discretion. Politicians have at times attempted to
encroach on this discretion by enacting mandatory minimum sentence statutes with
unanticipated, if not hilarious outcomes. All this happenstance within a back ground of a
public perceptively disgruntled by rising rates of crime; baying for stiffer penalties in
what it views as a justice system that is lenient on criminals.
This is a narrative overview of the development of sentencing practice in Malawi and an
implicit commentary on the dissimilar and often conflicting viewpoints of the various
stakeholders: the judiciary, politicians, prosecutors, civil society and human rights
activists. The paper glances at legislation enacted with intent to deliberately prescribe
mandatory minimum sentences in designated offences and some of the outcomes of such
legislation. The paper examines the judiciary’s labours in setting precedents and
guidelines for sentencing practice, the challenges extraneous factors have had on these
efforts and whether this has had any impact on the sentencing practice broadly. All this in
the wake of a comparative presentation of the development of sentencing practice in
other jurisdictions, particularly in the United States, the United Kingdom and Europe; the
US because of its rather unique and dynamic sentencing reforms over the past 25 years;
the UK because of the relationship its legal system has with Malawi’s. Malawi’s legal
2
system derives from the English common law, which was applicable long before
independence and which continues to powerfully influence the development of
jurisprudence in Malawi. The paper, albeit fleetingly, also outlines the views of
politicians and the general public and enquires first, whether there is basis for
unavoidable reforms to Malawi’s sentencing policies and second, whether the debate
calls for the introduction of mandatory minimum sentence legislation.
What this paper does not do is offer a commentary on the implications for future policy
and law reform in South Africa and for the region. In desisting from such commentary, it
is intended to present the unadulterated Malawi experience without preconceived
prejudice or opinion on the law reform currently on-going in South Africa. The raison
d’etre is that; agitation for sentencing policy reforms and calls for mandatory minimum
sentence legislation in the two jurisdictions is predominantly premised on different
grounds and historical contexts. Presenting Malawi’s experiences without comment on
South Africa’s standing will optimistically proffer an unsullied perspective of the subject
from an entirely distinctive angle, divorced from the factors fuelling the sentencing
debate in South Africa.
Sentencing Practice and Prison Populations
Sentencing practice has not been the subject of much debate within Malawi legal circles
or the general public. The judiciary has held one or two conferences but there is no
3
indication whether the conferences expressly dealt with sentencing practice reforms.1 Of
course, there is concern over the steady increase in crime and the exponential growth of
prison populations. The Malawi Prison Inspectorate noted in 2004 that congestion
remains a serious problem in all prisons due in part to rising crime rates and because no
other prisons have been built recently.2 The optimal holding capacity of Malawian
prisons is 4,500 inmates. In 1997, there were 5, 557 inmates and by 2002, the population
had doubled to 8,393. In 2004 the population rose further to 9,000 and it is unlikely the
figures are lower today.3 The Inspectorate claimed the increase was due to rising crime
rates and recommended construction of more prisons as the only lasting solution,
preferably one prison in each district.4
On the other hand, a 2004 National Crime Victimisation survey indicated that 85.5% of
respondents were satisfied with the way courts sentence offenders and 59.7% expressed
confidence in the sentencing practice, believing that courts impose sentences that fit
committed offences.5 No one however, seems to have considered whether rising
incarceration rates have anything to do with the prevailing sentencing practice and policy
as contrasted with rising crime. There are no comparable studies on the subject just as
there are no studies to determine whether crime is higher now than it was two, five or ten
years ago. In 2003 the Malawi Law Commission carried out reforms on the application of
1 Justice A. Nyirenda, Lilongwe District Registry, personal communication, October 13, 2006; records of
the conference proceedings were unavailable and it is not possible to determine the exact nature and
content of the conferences. 2 Malawi Inspectorate of Prisons, Fifth Annual Report to Parliament, 2004 p 13
3 Ibid
4 Already a prison with a holding capacity of 800 is under construction in Mzimba in northern Malawi, see
ibid p 7 5 Pelser, Burton & Gondwe, quoted in Edge Kanyongolo, Malawi Justice Sector and the Rule of Law: A
Review by Afrimap and Open Society Initiative for Southern Africa, 2006, (Open Society Foundation, 2002)
p 118
4
statutory fines that became obsolete due to the gradual loss of value of the Malawi
Kwacha, but these reforms barely touched, if at all, the substantive sentencing practice in
Malawi.6
As will become evident, studies and experiences in other jurisdictions unquestionably
suggest there is correlation between sentencing practice and prison populations. Because
no such correlation has been suggested in Malawi, no deliberate effort to reform the
sentencing practice has been undertaken. Again no study or research has, until now, been
commissioned to review the sentencing practice and policy for purposes of initiating
reform processes.
Sentencing procedure, sentence disparities and Judicial discretion
Sentencing practice has always been the discretion of the courts in Malawi. A relic of the
common law, the tradition has coalesced into an obligatory canon the judiciary fiercely
preserves. While displaying a varying degree of adherence two judges interviewed in
researching this paper invariably maintained the judiciary should preserve this discretion,
on grounds that sentencing should fit the crime, the offender and the circumstances in
which it was perpetrated.7 Courts are only able to exercise sound judgment if they deal
with each case on its merits. When courts are restricted by technical mandatory minimum
sentences, they tend to resist them on the pretext they compromise independence and
discretion. One judge, nevertheless, considered minimum sentences necessary in
6 Malawi Law Commission, Report of the Law Commission on Criminal Justic Reform on Conversion of
Fines, (Lilongwe: Malawi Government Gazette, Dec, 2003) 7 Justice A. Nyirenda and Justice E. Chombo, Lilongwe District Registry, personal communication,
October 13, 2006
5
designated cases such as sexual offences and burglaries. Minimum sentences would
ensure consistency and predictability especially given that current disparities are
exacerbated in part by the inefficiencies of the law reporting service.8
Section 260 of Criminal Procedure and Evidence Code empowers subordinate courts,
before passing sentence, “to receive evidence it thinks fit in order to inform itself as to
the sentence proper to be passed.” Similarly, s. 321J empowers the High Court, “after
verdict but before passing sentence, to receive such evidence as it thinks fit, in order to
inform itself as to the sentence proper to be passed.” Courts are also empowered to
consider and order compensation for the victim as part of its sentence.9 The court may
also condemn the convicted offender to pay costs of the prosecution. This essentially
embraces the totality of sentencing practice in Malawi. Everything on sentencing practice
revolves around this law if not specifically legislated for.
In light of these provisions, it may be argued that Malawi courts have power to receive
evidence to better determine the sentence appropriate for an offender. In practice things
do not play out the way the law provides. It is not uncommon after judgment has been
delivered for the prosecutor to address and simply notify the court that the defendant is a
first offender. Almost always the prosecutor will not take time to inquire into the
antecedents of the defendant or into factors aggravating or mitigating the offence or
indeed whether compensation is appropriate. One prosecutor argued that it is the
prosecution that fails to make use of the law and appropriately inform courts before
8 Some courts will deliberately ignore unreported authorities binding if it contradicts their judgment, Justice
E. Chombo, Lilongwe District Registry, personal communication, October 13, 2006 9 S. 32, Penal Code, Cap 7:01, Laws of Malawi
6
sentencing.10
Not surprisingly, this results in disparities in sentencing, a practice that
would easily be lessened if information was availed to the Court.
While undisputed that the criminal procedure does make provision for antecedents,
evidence, or information to be availed to court for consideration before sentencing, it
does not establish the significant and necessary legal and administrative framework for its
application. In merely providing that the court may receive information to better
determine the appropriate sentence, it fails to articulate the content of information
required and the manner or process of its presentation.
In contrast, the procedure after judgment or guilty plea in England has been minutely
described and provided for by law. Before sentence can be determined, specific steps
must be complied with when presenting information to court for determination of an
appropriate sentence. First, the prosecution presents to the court an outline of the facts of
the case, explaining the manner in which the offence was committed, offer an assessment
on the gravity of the offence, describe in detail the arrest, make application for
compensation, if necessary, present relevant evidence and make argument. It is also the
duty of counsel to draw to the attention of the judge any limits on the courts’ sentencing
powers. Second the prosecutor outlines the antecedents of the convict, his age, past and
present employment, domestic circumstances, incomes and outgoings, the date of arrest
and whether remanded or on bail and a summary of previous convictions and the
offender’s criminal record, if he has one. Third the prosecution submits evidence on any
10
Gaston Mwenelupembe, Chief Legal and Prosecutions Officer, Anti Corruption Bureau, Lilongwe,
personal communication, October 18, 2006
7
breaches of suspended sentences and check whether there are any other offences to be
taken into consideration for purposes of sentencing. The prosecutor may also make any
application for compensation, restitution or forfeiture. It is only after all this that defence
counsel addresses the court in mitigation beginning with an inquiry into whether any pre
– sentence reports have been filed.11
Nothing similar appears anywhere in the Malawi criminal procedure. Still, there are
numerous decisions by the High Court and the Supreme Court of Malawi setting
guidelines for sentencing in Malawi. And mostly, that has significantly worked to
entrench judicial discretion. In Republic-v- Zagwa,12
a 1957 case, Spencer Wilkinson, C.
J. stressed that subordinate courts in Malawi are bound and have a duty to follow High
Court precedents. He said: -
“I Feel impelled to remind all magistrates that whatever their personal views may
be in regard to any particular class of offence, they are bound by the decisions of
the High Court, […] and that where sentences are imposed which do not conform
with the principles laid down by this court in its judgments or orders the result
may be that the whole proceedings will be quashed.”13
It was not until around the mid 90’s however, that the High Court in earnest
comprehensively begun espousing sentencing guidelines for practice in the subordinate
Courts. The need arose primarily because there had been detected numerous disparities in
the sentences that were being passed by subordinate courts. In one case, for example, a
Zambian national was charged with kidnapping children for purposes of labour on
11
S., Seabrooke & J., Sprack, Criminal Evidence and Procedure: the Essential Framework,2nd
Ed,
(London: Blackstone Press Ltd, 1999, Chapter 26, passim 12
(1923 – 1960) 1ALR (Mal) 415 13
At p 417
8
Zambian farms close to the Mchinji border. He was fined the equivalent of $50-00. A few
weeks later, a second Zambian national was arrested and charged with similar offences in
similar circumstances. The Court, responding to public protests against its earlier
sentence, imposed a 7 year jail sentence.
In R –v- Chavula & Another14
two men were sentenced to 24 and 30 months
imprisonment by the trial court for the same offence because the latter had a previous
conviction. On confirmation the High Court not only lamented the disparity in the lower
court’s sentencing practice, it also reduced both sentences to 15 months.
In R –v- Phiri & Others15
the High Court enhanced sentences of 3, 2, and 2 years for
three separate offences to 5, 4 and 3 years respectively on grounds that the trial court had
not considered the prevalence of burglaries and robbery with violence, pointing out that
courts had a duty to impose harsh sentences as deterrence in prevalent crimes.
In R –v- Zingano & Another16
the trial court imposed a suspended sentence and a term of
12 months on two convicts who jointly stole, sold property and shared the proceeds. On
confirmation the Court enhanced the suspended sentence to custodial on grounds that the
disparity was not justified.
14
(1990) 13 MLR 379 15
(1993) 16 (2) MLR 748 16
(1993) 16 (2) MLR 755
9
Another area where disparities often occur is sexual offences such as rape and defilement
of young girls. In R –v- Payili17
a 1997 case, an herbalist raped a woman suffering from
haemorrhage subsequent to administering herbal concoctions that made her weak and
powerless. The trial Court sentenced him to 3 years imprisonment on conviction. On
confirmation the High Court enhanced it to 5 years saying “… the accused took
advantage of his calling […] to commit [a] shameful act [which is] outrageous. He
deserves a heavy punishment [to] act as deterrence.”18
In R –v- Topeyani Chimseu19
, also a 1997 case, a 19 year old man raped his drunken step
mother. The trial Court sentenced him to 21/2 years. On confirmation, the High Court,
finding the conviction impeccable and proper; and commenting that the young man’s
conduct was “disgusting” still went on to set aside the sentence and released the offender
stating “… I feel sorry that a young man … should have his entire future destroyed
because of his lust for sex. […] I shall be lenient with him to give him a second chance to
enable him continue with his studies. I hope the period he has been in prison has taught
him that the offence of rape does not pay.”20
In the same year, in R –v- Harrison Billie21
a church minister (or pastor) raped a 14 year
old girl who, on medical examination was diagnosed discharging thick pus, possibly from
a venereal infection. The trial Court sentenced him to 4 years but the same Court sitting
17
Confirmation Case No. 724 of 1997, Principal Registry (Unrep) 18
At p 2 of the judgment transcript 19
Confirmation Case No. 1112 of 1997, Principal Registry (Unrep) 20
At p 2 of the judgment transcript 21
Confirmation Case No. 1221 of 1997, Principal Registry (Unrep)
10
in R –v- Topeyani Chimseu22
reduced the sentence to 2 years on account he was a first
offender, despite commenting that “[a] pastor trainee of all people should not have led
himself into temptation of committing a sin such as that which in law is a crime. He is a
very irresponsible man of God. [….] His action is incompatible with the way and
behaviour of a man of God. He deserves no leniency.” (Emphasis mine)
In Erick Chikwawa –v- R23
a 1999 case, a sentence of 6 years on conviction for defiling a
child was held to be appropriate for first offenders, a principle that had been upheld in R
–v- Nambunso Liwonde24
four years earlier. In R –v- Peter Laiton25
, a 1997 case, a
sentence of 4 years for defilement was upheld where the victim suffered serious injuries
necessitating surgical sutures. Banda, C. J., went on to say: -
“I would like to remind trial Courts that there are now prevalent in the country
very serious offences of violence and serious frauds which are coming before the
courts. It is important that the courts should remember the guiding principles in
deciding upon the appropriate sentence to impose. Courts must be guided by
certain principles. The first of these principles is the public interest. Criminal
justice is publicly enforced with the intention of not only punishing crime but also
with the hope of preventing it. The courts must, therefore, be vigilant to ensure
that persons who commit these serious offences of violence and serious frauds are
properly punished and therefore deter others who might be tempted to commit
similar offences. Courts will help reduce the incidence of these violent crimes if
meaningful sentences are imposed.”26
In R –v- Phameya27
a 1995 case, Mwaungulu, J., held that a 4 year sentence was
appropriate in a rape case for a first offender, yet in the same year in R –v- Maliam
22
supra 23
Criminal Appeal Case No. 8 0f 1999, Principal Registry (Unrep) 24
Confirmation Case No. 934 of 1995, Principal Registry (Unrep) 25
Confirmation Case No. 1437 of 1997, Principal Registry (Unrep) 26
At pp 2-3 of the judgment transcript 27
Confirmation Case No. 1070 of 1994, Principal Registry (Unrep)
11
Adamson28
he endorsed 3 years he imposed in R –v- Phiri29
as appropriate. More
confusing, however, is R –v- Harrison Nyozani and Others30
another of his 1995
decisions. In it, he said that in R –v- Phiri31
he “… laid down guidelines for sentencing in
rape cases. According to that guideline the appropriate sentence is six years.” He went on
to point out that certain factors will aggravate a case and warrant a severe sentence.
Imposing a 6 year sentence instead of the 4 years set by the trial court, he observed that
the offence had been aggravated by use of weapons; the rape was committed by a group
of men who took turns repeatedly raping the victim causing her to vomit.
In R –v- Biziwick Mkoma32
also a 1995 case, the same judge confirmed a sentence of 8
years imprisonment for an herbalist convicted of raping two women who refused to sleep
with him as part of their therapy for infertility. Of more significance is what he said: -“…
when arriving at a sentence, although not bound by precedent, a trial court should regard
sentences of concurrent and superior courts imposed in similar circumstances.” He
conceded that there are many factors to consider and equality of treatment is therefore
impossible but uniformity of approach should be the objective.33
(Emphasis mine). This
statement expressly contradicts Spencer Wilkinson, C. J., in Republic-v- Zagwa34
who
indicated that disregard of precedent may result in the whole proceedings being
quashed.35
28
Confirmation Case No. 240 of 1995, Principal Registry (Unrep) 29
Confirmation Case No. 777 of 1994, Principal Registry (Unrep) 30
Confirmation Case No. 312 of 1995, Principal Registry (Unrep) 31
Supra 32
Confirmation Case No. 334 of 1995, Principal Registry (Unrep) 33
At p 2 of the judgment transcript 34
(1923 – 1960) 1ALR (Mal) 415 35
see note 12 above
12
Similar disparities are evident in R –v- Nambazo Liwonde,36
and R –v- Ajasi Pindani.37
Again in R –v- Taona Navaya38
and R –v- Zuzee Luwizhi39
the trial court imposed
sentences of 8 and 7 months respectively for an offence punishable by a fine of MK50-00
or imprisonment for 3 months, the reviewing judge commented that the court had clearly
exceeded its powers.
In R –v- Kachepa40
a sentence of 12 months for defiling a “child of tender age” was
enhanced to 3 years and in R –v- Maluwa Fabiano41
a sentence of 30 months was also
enhanced to 3 years for defiling a 3 year old child.
In R –v- Faison Pathewe and Naison Mangombo42
sentences of 12 and 10 months
imprisonment were enhanced to 30 months for attempted rape for two offenders who
tried to rape a woman with violence involving knives yet an earlier decision had been
made available to the court that enhanced a 4 months sentence to 3 years for attempted
rape in far less aggravating circumstances.
36
Confirmation Case No. 934 of 1995, Principal Registry (Unrep), 6 years appropriate for defilement for
13 year old girl 37
Confirmation Case No. 1159 of 1995, Principal Registry (Unrep) 2 years for defilement of 10 year old
girl 38
Revision Case No. 3 of 1996, Principal Registry (Unrep) 39
Revision Case No. 4 of 1996, Principal Registry (Unrep) 40
Confirmation Case No. 1130 of 1993, Principal Registry (Unrep) 41
Confirmation Case No. 211 of 1996, Principal Registry (Unrep) 42
Confirmation Case No. 295 of 1996, Principal Registry (Unrep)
13
In R –v- Robson Botomani43
a sentence of 5 years was held to be appropriate for
defilement but in R –v- Lingson Sapali44
a sentence of 4 years was said to be too
excessive.
In R –v- Andrew Chikatha45
Mwaungulu attempted to consolidate guidelines for
sentencing admitting that there are
“…competing and compelling and sometimes conflicting purposes and goals in
sentencing policy… Courts have to choose between conflicting and competing
purposes. Heavy handedness, which is what the call is for; may increase and
complicate rather than reduce crime. Offenders who know that death or
disproportionately long sentences… are likely punishment for rape will choose to
eliminate the victims and witnesses to avoid detection. Yet more a deterrent
purpose may have to give way to a corrective and rehabilitative purpose. If there
is a chance for reform from a shorter sentence, a longer sentence may be
regarded as a degrading and cruel treatment under the constitution.”46
He then pointed out the two distinct guidelines on sentencing from the High Court, both
based on Lord Lane, C. J’s statements in two different cases in the Criminal Court of
Appeal in England. The first were enumerated by Kalaile, J., (as he then was), in R –v-
Msowoya,47
adopting Lord Lane’s dicta with approval in R –v- Roberts48
: -
“By way of guidelines to magistrates, I would venture to state that where
extenuating circumstances evenly balance with aggravating factors, a three year
term would appear justifiable, whereas where the extenuating circumstances
outweigh the mitigating factors, a prison term below three years would be called
for. Lastly where the aggravating factors completely outweigh the mitigating
factors, a term of five years or over would appear appropriate.49
43
Confirmation Case No. 1097 of 1997, Principal Registry (Unrep) 44
Confirmation Case No. 618 of 1997, Principal Registry (Unrep) 45
Confirmation Case No. 1602 of 1998, Principal Registry (Unrep) 46
At pp 2 – 3 of the judgment transcript 47
(1987 – 1989) 12 MLR 394 48
[1982] 1 All ER 609 49
At p 396
14
Mwaungulu then argues that these guidelines present conceptual problems and are
difficult to implement, based as it were on a meting out of mitigating factors against
aggravating factors in a manner too difficult to apply.
Mwaungulu then states that in deciding R –v- Phiri50
he
“…never referred to the Msowoya guideline because of the difficulty
encountered in this Court and courts subordinate to it of tracking loose leaf
judgments. [The volume reporting R –v- Msowoya] was only published in 1994. It
did not come into the country until several years later, after I had delivered the
guideline in R –v- Phiri. I am not bound by [R –v- Msowoya]. Out of comity, this
Court respects its own decisions and departs from them at the peril of reasons
(sic). Definitely had I [R –v- Msowoya] before me I would have followed it but for
the doubts I have stated.” (Emphasis mine)
Mwaungulu then suggested three categories of sentences for rape cases depending on
aggravating factors; 3 years, 6 years and 10 years.
The courts have also many times laid down guidelines for sentencing in specific offences,
such as drug trafficking and use, especially Indian hemp, which is commonly grown in
parts of central and northern Malawi. Still, it is not known whether these principles are
strictly applied in practice. What is evidently clear is that disparities continue to appear in
sentencing and there is no clear ideology about sentencing practice.
Prison Conditions
Maula prison is the largest correctional facility in Lilongwe and the Central Region of
Malawi. It has a population of 1,733 inmates.51
Of these, 31 are women, 16 serving
50
Supra
15
sentences for various felonies and misdemeanours, 12 are on remand, 8 awaiting trial for
homicide. At least 1 woman is serving a 17 year sentence for theft by public servant, and
there are 3 children, all less than 5 years old whose mothers are serving sentences.
There are 1, 702 men, 1,287 serving sentences, 413 on remand, 186 awaiting trial for
murder. The longest has been on remand a little over 7 years. There are no juveniles at
Maula prison. Juveniles have their own facility at Kachere Prison in the part of the City
known as “Old Town” and at Byanzi Prison in Dowa district.52
Maula Prison was
originally built to cater for 800 inmates at full capacity. At present, cells designed to hold
60 inmates hold at least 155 inmates. Needless to say, congestion is a serious problem.
Prison authorities face numerous challenges, not least health concerns, contagious and
infectious diseases, food scarcity, medical facilities and of course, sanitation facilities.53
There is no parole board or other body that performs valuation of and assesses inmates to
determine whether they have fully rehabilitated to return to society; or those eligible for
early release.54
The Malawi Prison Inspectorate55
is only mandated to monitor the
conditions, administration and overall functioning of penal institutions in Malawi.56
51
The data was accurate as at 11:00hrs on October 19, 2006 when I visited the Officer – in – Charge at
Maula Prison 52
Dezio Makumba, Senior Superintendent, Officer – in – Charge, Maula Prison, Personal Communication,
October 19, 2006. See also Malawi Inspectorate of Prisons, Fifth Annual Report to Parliament, 2004, p 15. 53
Congestion was acknowledged as a serious problem by the Malawi Inspectorate of Prison in their Fifth
Annual Report to Parliament, 2004, at p 7. The inspectorate noted that a correctional facility was under
construction in northern Malawi, but also designed to hold of 800 inmates at full capacity. 54
Dezio Makumba, Senior Superintendent, Officer – in – Charge, Maula Prison, Personal Communication,
October 19, 2006 55
See note 2 above 56
s. 169, Malawi Constitution
16
However, a third of every inmate’s sentence is automatically remitted, and this means
virtually every convicted prisoner in Malawi serves only 2/3 of the sentence imposed.
In 2004, the Inspectorate of prisons noted that there was some commendable level of
rehabilitation efforts being carried out in a number of prisons.57
Domasi Prison farm in
Zomba was particularly singled out because inmates were systematically trained in
agriculture and were awarded certificates upon completion of their sentences. The
Inspectorate also noted that there were more students enrolled for Junior Certificate and
O’ Level examinations.58
Community Service
While s. 310 of the Criminal Procedure and Evidence Code59
allowed courts to impose
supervision orders,60
parliament only passed the Community Service (General) Rules in
2000.61
The rules were enacted to establish the legal and administrative framework for
community service as alternative punishment, in part to ease congestion in prisons. While
the rules appropriately established the administrative environment, they did not provide
clear guidelines on what offences are appropriate for community service. They only
provide for the court to make inquiry into the suitability of the offender for community
service, to explain the aims and objectives of the community service order to the offender
57
Op cit p 19 58
Ibid 59
Cap 24, of the Laws of Nyasaland, in force prior to Malawi’s attainment of independence 60
See Seneki –v- R (1923 – 1960) 1ALR (Mal) 639 61
Under s. 364A, Criminal Procedure and Evidence Code
17
and his rights and ascertain the offender’s willingness to submit to the community service
order.62
The rules have been in force for some 5 odd years now but it cannot be determined
without further survey whether the rules are successfully applied. What is true though is
that the rules application for any one offender squarely remains the discretion of the
court. In contrast, s. 6(1) of the Criminal Justice Act of England lays down thresholds and
the criteria for consideration in deciding whether to impose a community service order as
opposed to a custodial sentence.63
Mandatory minimum sentence statutes since 1964
There have been instances when parliament deliberately prescribed mandatory minimum
sentences for designated offences. These efforts naturally met with varying successes and
sometimes outright failures or tacit resistance from the judiciary. Judges, adhering to a
strong common law tradition, are naturally disinclined to follow mandatory minimum
sentence legislation. Generally uncomfortable with such laws, they have come to view
their discretion as a matter of constitutional significance in view of the separation of
powers.64
They view such laws as a deliberate encroachment of their jurisdiction.65
62
r. 12 63
S., Seabrooke & J., Sprack, op cit p 382, see also I., Bing, Criminal Procedure and Sentencing in the
Magistrate’s Court, 5th
Ed, (London: Sweet & Maxwell, 1999) especially chapters 12 – 15 inclusive 64
See s. 7, 8, 9 and 11 of the Constitution of the Republic of Malawi 65
Justice A. Nyirenda, Lilongwe District Registry, personal communication, October 13, 2006
18
The most notable, and maybe the most successful, were the “theft by public servant” and
“theft by servant offences” enacted from the late 60’s to mid 70’s.66
These offences
carried specific sentences depending on the values involved, and in the case of “theft by
public servant” there was mandatory seizure and sale of property of the offender as
recovery for the misappropriated monies or property. The actual penalties ranged from 2
years imprisonment for values not exceeding £400 at the time to 14 years for values
exceeding £10, 000-00.67
The Corrupt Practices Act of 1995 prescribed a mandatory minimum sentence of 5 years
imprisonment for a conviction of a corruption offence.68
The sentence was mandatory
regardless of the value involved, antecedents of the offender or the actual damage caused
by the offender’s conduct. The Act was ideally enacted and the penalties prescribed in
“[direct] recognition of the worrying trend in the increase of cases related to
corruption.”69
During the review of the Act by the Law Commission in 2001, one of the principal issues
was the penalty for corruption offences.70
Experience during its infancy application
demonstrated that the prescribed mandatory minimum sentence resulted in unjustified
acquittals by courts that, less moved by the absence of guilt, chose to acquit the accused
66
Sections 283 and 286 respectively 67
s. 283 (4) enacted in 1973 and s. 286 (1) passed in 1976 68
s. 34. 69
see Malawi Law Commission, Report of the Law Commission on the Review of the Corrupt Practices
Act, (2002) Lilongwe, Malawi Government p 6 70
Op cit p 7
19
than impose a sentence they perceived harsher than the offence otherwise warranted.71
The report stated at p 36: -
“… the Commission considered […] the mandatory minimum sentence of five
years […] and was concerned, from well documented statistics of judicial
records, that the advent of mandatory sentences without judicial discretion tended
to result in unwarranted acquittals because courts are often reluctant to convict
an offender where they are denied judicial discretion on sentencing to take
account of the particular circumstances of the case or to give consideration to
any mitigating factors about the offender. Such unwarranted acquittals erode
public confidence in the law enforcement agency and the law itself.”
Of course these acquittals must be considered in light of other commentaries, such as
those by prosecutors from the Anti Corruption Bureau who strongly argue that a good
number of acquittals are the result of judicial officer’s inability to appreciate the concept
of corruption crimes and the whole purpose of corruption law and how it was intended to
be interpreted and applied.72
Public opinion, the media and sentencing practice
One significant factor constantly influencing sentencing trends in Malawi has been the
media in the manner they report on the prevalence of certain crimes at certain periods.73
The media plays a pivotal role in not only disseminating information to the public but
also in shaping what is ultimately perceived as public opinion. During the past 6 months,
71
In one such case a magistrate was convicted of corruption when he received a bribe of the equivalent of
$3-00 and was sentenced to the 5 year minimum 72
Gaston Mwenelupembe, Chief Legal and Prosecutions Officer, Anti Corruption Bureau, personal
communication, October 18, 2006 73
cf Banda, C. J’s dicta in R –v- Peter Laiton, supra and also Lord Falconer of Thoroton’s speech on
sentencing and penal reform, available at http://www.dca.gov.uk/speeches/2004/lc130904.htm (accessed on
October 20, 2006 at 08:00hrs
20
for example, there has been an almost unprecedented prevalence of defilement74
offences
and crimes of violence against women.75
The major contributing factor has been
newspapers that tend to concentrate on certain types of case at certain times and hence
influence public opinion.
When courts react to such reports and adjust sentences accordingly, it results in
disparities in sentencing practice, sometimes seriously. A case In point would be the
matter of the Zambian child traffickers that received 2 hugely disparate sentences within
2 weeks of appearing before the same court.
Sentencing reforms in other jurisdictions
Endeavours to reform sentencing practice and policy in other Jurisdictions date back to
the early 70’s. The United States initiated its sentencing reforms in the 70’s. Finland, by
1976, and Sweden, in 1988 had essentially “overhauled” their sentencing practice.76
Other countries include England, Australia, the Netherlands, Canada Switzerland,
Germany, New Zealand and, within the last decade, South Africa. While sentencing
reform has been on the policy agenda of many countries, the dynamics steering each
country’s sentencing reform has predominantly been shaped by factors inimitable to that
74
See for example the Daily Times, Wednesday, August 30, 2006 (Blantyre: Blantyre Print & Packaging)
and The Daily Times, Friday October 20, 2006, (Blantyre: Blantyre Print & Packaging) 75
Dickson Kashoti, “Marieta Samuel says husband’s sentence lenient” The Daily Times, Monday
September 18, 2006 reporting on a 14 year sentencing for a man that cut off his wife’s hands on
accusations of adultery 76
Tonry, M., & Hatlestad, K., eds, (1997) Sentencing Reforms in Overcrowded Times, A Comparative
Perspective (New York, Oxford University Press) p 3
21
country. Most however, with the exception of the United States, still display a somewhat
uniform pattern in methodology and similitude of purpose.
There is in the United States, a clear distinction between the reform movement in the
early 70’s and its reform agenda in the early to mid 90’s. Tonry and Hatlestad argue that
“… [the] early movement [was] centrally concerned with remedying unfairness to
offenders – unwarranted disparities, invidious discrimination and official’s arbitrariness
while the contemporary movement [has] mostly concerned making penalties harsher and
controlling government expenditures.”77
On the other hand other jurisdictions, while
distinct in many respects, have displayed uniform confidence on the best available
knowledge to devise fair and cost – effective ways to deal with chronic problems,
including sentencing practice reforms.78
Tonry and Hatlestad explain the difference as
emanating from the fact that generally, sentencing changes in other countries have
“neither been as precipitate nor as radical as in the US, [primarily] because in the US,
sentencing policies have been a regular feature of partisan, sound – bite politics, [since]
… crime control has long been a central issue in electoral politics.”79
This has resulted in
what they assert is the “…ineffectiveness of US state efforts at enacting mandatory
penalty laws to demonstrate toughness”, that numerous studies have shown to be
ineffective as deterrents to crime.80
According to Tonry and Hatlestad, changes in crime
rates have little to do with changes in sentencing laws just as “penalty changes have little
77
Op cit p 4 78
Ibid 79
Ibid 80
Ibid
22
demonstrable effect on crime.”81
This has largely been absent in the US that somehow
has failed to realise the futility of employing sentencing as a means of controlling crime
and that harsh laws do not reduce crime. The principal objective of sentencing reforms,
so far as studies demonstrate, should by no means be the reduction of crime rates. It just
doesn’t work. It is more appropriate to reform sentencing practice to achieve uniformity
by reducing disparities, increase predictability, establish transparency, accountability and
promote fairness; both for the offender, the victim and society at large. In the US, harsher
laws have instead been enacted, resulting in “… an unthinkable increase [in prison
populations]”82
Sentencing in other jurisdictions tends to be incidental to and results from other than
partisan political considerations. Countries like England, Germany, the Netherlands,
Scotland and Switzerland have established new penalties with the aim of diverting people
from jail with pronounceable success. Sentencing then tends to be based on “fairness
concerns about proportionality or ‘just deeds,’”83
motivated principally by idealistic and
human rights concerns. When Sweden and Finland overhauled their sentencing laws in
’76 and ’88 respectively, the achievement of greater proportionality in punishment, closer
ties between the relative seriousness of crimes and the relative severity of punishments
was a major objective.84
In England, greater proportionality was the primary objective
81
Studies by the National Academy of Sciences Panels (Blumstein, Cohen & Nagin, reporting on two
decades of study on deterrence and incapacitation), Criminal Careers (Blumstein et al, 1986),
Understanding & Control of Violence (Reiss & Roth, 1993), the Australian Law Reform Commission in
1980, all quoted in Tonry & Hatlestad, op cit p 4 82
Tonry and Hatlestad assert that prison populations in the US increased from 196, 092 in 1972 to 1, 104,
074 in 1995. The crime rates however, remained relatively stable in 1994 as they were in the 1980’s, see
Tonry and Hatlestad op cit p 5 83
Ibid 84
Op cit p 8
23
and in Finland, the country’s incarceration rate, then higher than other Scandinavian
states, was considered too high and the objective was to reduce it. Through a variety of
legal changes, the rate was reduced by over a third and has since remained stable.85
Again in Germany, through the 60’s and 70’s it was decided that short prison sentences
are counterproductive under the rationale that “short – term imprisonment was
incompatible with respect to rehabilitation due to the short period available for treatment
and the corruptive effects of the prison environment.86
There was consequently a
substantial reduction in the use of prison sentences less than 6 months.87
Secondly, the principal focus of reform in most countries has been on the development
of non – custodial penalties rather than comprehensive refashioning of entire systems.
England implemented community service in the early 70’s, combination orders and day
centres; they also conducted pilot projects on day fines, intensive supervisions and
probation, as well as electronic monitoring. Electronic monitoring and intensive
supervision has also been seriously adopted and implemented in King County in Seattle
for road traffic and drug abuse offenders.88
This concept was acknowledged in Malawi when parliament enacted the Community
Service (General) Rules in 2000. Its implementation, however, failed to achieve the
desired objectives of reducing prison populations. It is suggested here that the gaps
85
Ibid 86
Albrecht, quoted in Tonry and Hatlestad, ibid 87
Ibid 88
Personal interviews during visit to Seattle metropolitan area under the US Department of State
International Visitor Leadership Program, “US Judicial System” January – February 2006
24
created by the rules themselves, having failed to articulate the genre of offences and
circumstances for ordering community service, left the courts without proper guidance to
exercise discretion properly when ordering community service. Contrast this with the
position in England where courts are only empowered to impose custodial sentences
where there community service cannot be justified.89
These sentiments were expressed
and echoed by prison wardens at Maula Prison. They believed that sentences of less than
one year tended to harden offenders than rehabilitate them and would welcome
community service in those instances except where the offence committed was so serious
that a custodial sentence is the only appropriate punishment.90
No other country has shown interest in American – style sentencing guidelines in which
presumptive sentences are set out in numerical grid. It’s not clear why this is so, but
Tonry and Hatlestad hazard one guess to be that “indeterminate sentencing in the US led
to the imposition of sentences that, at least nominally, are much longer than elsewhere”
and as a result the potential for extreme disparities is greater than anywhere else.91
Statistics show that disparities are more extreme when sentences are 10 – 20 years long,
as in the US, but are much less extreme when the sentences are only a few months or
years, as in most countries.92
89
s. 1(2), Criminal Justice Act, 1999, England, quoted in Inigo Bing, Criminal Procedure and Sentencing
in the Magistrate’s Court, 5th
Ed, (London: Sweet & Maxwell, 1999) p 254 90
Dezio Makumba, Senior Superintendent, Officer – in – Charge, Maula Prison, Personal Communication,
October 19, 2006 91
Tonry and Hatlestad op cit p 9 92
Statistics obtained from Tonry and Hatlestad Ibid
25
Country Percentage of incarceration
%
Term of imprisonment
United States 43 10 + Years
Sweden 95 2- Years
Germany 1 2 + Years
The Netherlands 14 1 + Years
The Netherlands 1 6 + Years
Table showing percentage of incarceration and term of imprisonment by country
Tonry and Hatlestad go further to argue that long nominal sentences are largely the
product of indeterminate sentencing, more extensively and enthusiastically adopted in the
US than anywhere else.93
In most European countries, release eligibility ripens only after
a third or half of the term has been served because of good time, in most jurisdictions
known as remissions. But in Malawi, as noted earlier, there is an automatic remission of a
third of the sentence. Numerical guidelines fail to catch on because in most jurisdictions,
unlike in the US, judges are not elected but are usually career civil servants. Besides,
judges often resist and resent the creation of new constraints on their discretion. In these
jurisdictions, since the judges are non – partisan, they tend to be more effective in
93
Ibid
26
opposing guidelines by invoking ideas of judicial independence and the need to impose
individually appropriate sentences in every case.94
Numerical sentencing grids not only
look mechanical, they are in fact mechanical and devoid of human consideration. Most
judges and lawyers believe that questions of justice require individualised human and not
mechanical solutions.
Conclusion
Overwhelming evidence exists that there is basis for inescapable and extensive reforms to
Malawi’s sentencing practice and policies. Whether the debate calls for the introduction
of mandatory minimum sentence legislation is neither intuitively supported by the current
discussion, nor indeed by other works on the subject. Experiences elsewhere clearly
demonstrate that introducing mandatory minimum sentence legislation seldom works.
Particularly is this true when jurisdictions react to perceived rising rates of crime by
enacting harsher laws and meting out longer sentences. This invariably works only to
raise the percentage of incarceration and increase prison populations but does not lower
crime rates. In fact studies strongly suggest that sentencing practice on its own has no
discernible impact on reduction of crime rates.95
If sentencing practice is primarily
utilized as a tool for rehabilitation of offenders, rather than effecting vengeance,
alternatives to prison terms tend to produce more desirable results for the country and
society at large. Sentencing practice reforms should aim to address the root causes of
94
cf Justice A. Nyirenda’s comments at note 7 above, also averred to by Tonry and Hatlestad, op cit 95
A study on the growth of prison populations in England and Wales conducted by Rethinking Crime and
Punishment, a strategic grantmaking initiative of the Esmée Fairbairn Foundation supports these
conclusions. Available at http://www.rethinking.org.uk/informed/sentencing.pdf (Accessed on October 20,
2006
27
criminal conduct by establishing a correctional system that offers an environment that
ultimately champions and promotes behavioural transformation of offenders. This is in
no way advocating the corrosion of sentencing practice of its commitment to punish
crime. This is a call to reform sentencing practice so that its principal objective is
rehabilitation of offenders and punishment of deserving criminals. That is the inevitable
sentence practice reform Malawi needs to embark on. That is the sentence practice reform
South Africa should yearn to achieve and that is the sentencing practice reforms that will
see a significant reduction in congestion of prisons in SADC Africa.
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