RULING
IN THE HIGH
COURT OF MALAWI
PRINCIPAL
REGISTRY
CRIMINAL CASE
NO. 108 OF 2002
THE
STATE
-VS-
DENNIS
SPAX JOHN KAMBALAME
CORAM: THE HON.
MR. JUSTICE F.E. KAPANDA
M/S
Tembenu and Masumbu of Counsel for the State
M/S
Dokali and Kalekeni Kaphale of Counsel for the Accused
Miss
Vokhiwa, Official Interpreter/ Recording Officer
Dates of hearing: 18th November
2002 and 22nd November 2002
Date of ruling: 20th January
2003
Kapanda, J
RULING
Introduction
Following an order of this court, this
matter was called for plea hearing on 18th November 2002. On the
appointed day, the 18th of November 2002, the defendant was not
asked to plead to the counts that were preferred against him. This was as a
result of the fact that the accused raised a preliminary objection to the
indictment. The objection was in relation to the substance and form of the
counts. At that time the state had charged the suspect with ten counts of the
offence of corruption by a public officer. The counts were based on the
stipulations in the Corrupt Practices Act (No. 18 of 1995).
The state later reduced the number of
the counts to six. This notwithstanding the defendant did not take his plea. He
still challenged the propriety of the counts in the charge sheet. This ruling
therefore deals with the preliminary objection raised by the defendant.
The Counts in the Indictment
The following are the proposed new
counts that the state has proffered against the defendant:
“COUNT ONE
Offence (Section
and Law)
Corruption by a public officer, contrary to
Section 24(1) of the Corrupt Practices Act.
Particulars of
Offence
Dennis
Spax John Kambalame being General Manager of Petroleum Control Commission
between the 1st day of January 1996 and 31st January,
2000, at Barclays Bank, Guernsey in the Channel Islands corruptly accepted
gratification for himself amounting to US$1,339,730.90 (being an equivalent of
MK102, 757,360 at the exchange rate of MK76.7 to US$1.00) from persons
unknown as a reward for the said Dennis Spax John Kambalame having
corruptly awarded contracts for the supply of fuel and other fuel related
contracts to the said persons unknown, the said awarding of the
aforesaid contracts being a concern of the Petroleum Control
Commission.[emphasis supplied by me]
COUNT
TWO
Offence (Section
and Law)
Corruption
by a public officer contrary to Section 25(1) of the Corrupt Practices Act.
Particulars of Offence
Dennis
Spax John Kambalame being General Manager and being concerned with the award of
fuel contracts and other fuel related contracts of Petroleum Control Commission
between 1st day of January 1996 and the 31st day of
January 2000, at Barclays Bank, Guernsey in Channel Islands, corruptly accepted
gratification for himself amounting to US$1,339,730.90 (being an equivalent of
MK102, 757,360 at the exchange rate of MK76.7 to US$1.00) from persons
unknown as a reward for the said Dennis Spax John Kambalame
having corruptly awarded contracts for the supply of fuel and other fuel
related contracts.[emphasis supplied by me]
COUNT
THREE
Offence (Section
and Law)
Corruption
by a public officer contrary to section 24(1) of the Corrupt Practices Act.
Particulars of
Offence
Dennis Spax John Kambalame being General
Manager of Petroleum Control Commission between 1st day of January
1996 and the 31st day of January 2000, at Barclays Bank, Guernsey in
the Channel Islands corruptly accepted gratification for himself amounting to
US$216,507.60 (being an equivalent of MK16, 606,132.92 at the exchange rate of
MK76.7 to US$1.00) from Europetrol Limited as a reward for the said Dennis Spax
John Kambalame having corruptly awarded contracts to Europetrol for the supply
of fuel to the Petroleum Control Commission the awarding of the aforesaid
contracts being the concern of the Petroleum Control Commission.
COUNT
FOUR
Offence (Section
and Law)
Corruption
by a public officer contrary to section 25(1) of the Corrupt Practices Act.
Particulars of
Offence
Dennis
Spax John Kambalame being General Manager of Petroleum Control Commission and
being concerned with the award of a consultancy contract to Hamble Energy
Limited between the 1st day of October 1997 and the 31st
day of July1998, at Barclays Bank, Guernsey in the Channel Islands corruptly
accepted gratification for himself amounting to US$27,500 (being the equivalent
to MK2, 109,250 at the exchange rate of MK76.7 to US$1.00) from Hamble Energy
Limited
in relation to the award of consultancy contract to Hamble Energy Limited by
the Petroleum Control Commission.
COUNT
FIVE
Offence (
Section and Law)
Corruption
by a public officer contrary to section 29(1) (a) (i) of the Corrupt Practices
Act.
Particulars of Offence
Dennis
Spax John Kambalame being the General Manager of Petroleum Control Commission
between the 1st day of January 1996 and 31st day of
January 2000, Barclays Bank, Guernsey in the Channel Islands corruptly accepted
gratification for himself amounting to US$ 216,507.60 (being the equivalent of
MK 1,660,132.92 at the exchange rate MK76.7 to US$1.00) from Europetrol Limited
as a reward for having given assistance in the procurement of a contract by
Europetrol Limited to supply fuel and other fuel products to the Petroleum
Control Commission by Europetrol Limited, the procurement of the said contract
being the concern of the Petroleum Control Commission.
COUNT SIX
Offence
(Section and Law)
Corruption
by a public officer contrary to section 29(1) (a) (i) of the Corrupt Practices
Act.
Particulars of
Offence
Dennis
Spax John Kambalame being the General Manager of Petroleum Control Commission
between the 1st day of January 1996 and 31st day of
January 2000, at Barclays Bank, Guernsey in the Channel Islands corruptly
accepted gratification for himself amounting to US$ 216,507.60 (being the
equivalent of MK1, 660,132.92 at the exchange rate MK76.7 to US$1.00) from
Europetrol Limited as a reward for having used his influence in the procurement
of a contract by Europetrol Limited to supply fuel and other fuel
products to the Petroleum Control Commission by the Europetrol Limited, the
procurement of the said contract being the concern of the Petroleum
Control Commission….”
The
above counts have been proposed as an answer to the objections raised by the
accused. Despite the reduction in the number of counts, from ten counts to six
counts, the defendant still maintains his preliminary objection to them.
The Motion
As
stated earlier, the defendant has raised a preliminary objection regarding the
counts. The challenge as to the form and substance of the counts has been made
pursuant to Section 151(1) of the Criminal Procedure and Evidence Code.
Subsection 1 of the said Section 151 provides that:
“Every
objection to any charge for any formal defect on the face thereof shall be
taken immediately after the charge has been read over to the accused and not
later”
The defendant
has raised the preliminary objection herein before taking plea. Actually, the
defendant refused to plead to the counts. He contends that he can not do so on
the following grounds viz.: firstly, there is multiplicity of counts. Secondly,
the defendant argues that some of the counts are wrongly drafted. Thirdly, the
accused has taken issue with the particulars of some of the counts in the
indictment. Lastly, the defendant claims that the state has erred in that it
has preferred several and distinct counts based on the same facts. The
defendant, through Counsel, is therefore moving this court to quash some of the
counts in the charge sheet. The motion by learned Counsel is made pursuant to
the said Section 151(1) of the Criminal Procedure and Evidence Code. The state
is opposing the motion.
The Parties’ Points of
Contention
The arguments of both
parties are very long. It is not feasible to put down every argument that was
made by Counsels. If I were to do that this ruling would be unnecessarily long.
For this reason, I will only give a sketch of the submissions of Counsels. As I
understand it, the parties’ points of argument may be
summarised as follows:
The defendant’s
Firstly, it is the submission of
defendant that there is a multiplicity of counts in the bill of indictment. The
contention in this respect is that this multiplicity of counts has come about
because some counts, although charged under separate sections of the CPA, are
founded on the same facts. Learned counsel for the accused further argued that
as a result of preferring separate counts in respect of the same transaction
there has been overloading of the charge sheet.
Secondly, the defendant is of the
opinion that some counts lack sufficient particulars. The defence has
particularly taken issue with the particulars of offence in counts one
and two in the
charge sheet. The
particulars of
offence in these two counts, so the argument goes, contravene the provisions of
Section 42(2)(f)(ii) and (iii) of the Republic of Malawi Constitution.
Lastly, learned counsel for the
defendant contends that a number of counts in the charge sheet have been
wrongly drafted. In this connection the defendant, through counsel, submits
that wrong terms have used to describe some of the offences and/or in giving
the particulars of some of the counts in the bill of indictment.
The
Prosecution’s
In response to the submissions, made on
behalf of the defendant, the state made the following arguments:
Firstly, on the
contention that the bill of indictment is overloaded it is argued by the state
that the same is to the advantage of the defendant. It is urged on behalf of
the state that the accused will, in a single trial, answer all the possible
allegations against him. The state says this will guard against a further trial
in future. The prosecutors further contend that the charging of several
offences cannot be avoided because the relevant sections of the CPA create
distinct and several offences. It is also the view of counsel for the state
that there is nothing offensive in separately charging the defendant with
several counts of offences in respect of a related and/or single transaction in
view of the fact that the counts preferred have a common origin. Counsel for
the state has further submitted that the multiplicity question should not
concern this court. They contend that the cases that were cited in support of
the defendant’s argument in this regard have no relevance to the
matter before this court which is not a subordinate court. The state further
urges this court to ignore the said case authorities because the trial in the
instant case will not be with a jury who would have had difficulties in dealing
with a multiplicity of counts.
Secondly, with regard to the argument
about lack of particulars, the state opines that this submission is not made
out. The state takes the view that to call upon the prosecution to furnish
further particulars of the offences, in counts one and two, would be tantamount
to demanding that evidence be disclosed in the charge sheet. The prosecution
further submits that it should not be doubted that before the charges were
preferred against the accused there was an investigation. This investigation,
the argument continues, must have satisfied the investigators that the accused’s wealth, as
disclosed by the bank accounts at Guernsey, exceeded his known sources of
income or official emoluments. For this reason, learned counsel for the state
argues, there was suspicion that the defendant had engaged himself in corrupt
practices covered under Section 24(1) of the CPA. Hence the charges in counts
one and two.
Further, the state has also submitted
that since the counts were reduced, from ten (10) to six (6), the question of
multiplicity of counts does not arise anymore.
The
above is a sketch of the assertions of the parties. I do not intend to give my
views on the arguments now. I will do so later in this ruling when I am making
my findings on the issues for consideration in this matter. I must point out
though that the court will not make specific reference to the arguments that I
have summarised above. Nevertheless, when I am considering the said issues the
court’s position, on the said submissions, will be
known.
It
is now necessary that the court should move on to point out the facts in issue,
and determine the issues, which have arisen in this matter.
Issues For Determination
It is clear to me that the principle
question that has arisen herein, and needs to be determined, is whether the
preliminary objection by the defendant has been made out. Further, I am alive
to the fact that when determining this main issue I will have to deal with
other issues that were raised during submissions of Counsel for both parties.
I will now, without delay, proceed to
consider the issues for adjudication in the preliminary application before me.
Consideration of the Issues
Statutory
Framework of the offences under the relevant Sections of the Corrupt Practices
Act
As a starting point, in adjudicating
upon the application herein, it is essential that I should make some
observations with regard to Sections 24(1), 25(1) and 29 of the Corrupt
Practices Act [the CPA]. These are the sections that feature in the charges
preferred against the accused. Such an approach will assist us in better
understanding how to properly draft charges to be preferred against the suspect
herein. Firstly, let me say that I very much apprehend the pressures under
which the prosecutors are operating. This, however, should not make us lose
sight of the special underpinnings of the Corrupt Practices Act and most
importantly the principles regulating prosecutions. At this juncture let us
analyse the sections under which the accused has been indicted.
Section 24(1) of the CPA
The court’s understanding
of section 24(1) of the CPA is that at the very least it creates three
different offences. The first refers to the public officer who corruptly
solicits gratification. Secondly, it speaks of a public officer who corruptly
accepts gratification, and thirdly it makes reference to a public officer who
corruptly obtains gratification as an inducement or reward for, inter alia,
doing something in relation to, inter alia, a transaction that is the
concern (business) of a public body. Further, the section envisages a public
officer acting alone or in concert with others in corruptly accepting
gratification as a reward for doing, or for not doing, something in relation to
some business of a public body.
Section 25(1) of the CPA
This provision is, to some extent, an
extension of section 24 discussed above. Section 25(1) does also create three
offences. It targets the public officer who, among other things, corruptly
solicits, accepts or obtains gratification in relation, inter alia, to
any transaction falling within or connected with his jurisdiction, powers,
functions and duties.
Section 29 of the CPA
Again at the very least this section
creates three distinct offences. It targets the public officer who directly or
indirectly corruptly solicits, accepts or obtains any gratification as an
inducement or reward on account of giving, inter alia, assistance or
using his influence in the procurement or execution of any contract with a
public or private body. The officer’s involvement is clearly
different from that envisaged in sections 24 and 25 of the CPA. He is not the
one concerned with the award, for instance, of the contracts. He is instead the
one who, in exchange for money, or other form of gratification, uses his
position or information to assist in the procurement or execution of some
contract. The catchword is that the officer is only assisting.
Differences
between sections 24(1), 25(1) and 29 of the CPA
Notwithstanding the observation made
above, to the effect that section 25(1) of the CPA is an extension of Section
24(1) of the CPA, it is important to note that there is a difference between
the two provisions. This comes out clearly when one considers the use of the
word ‘concern.’
In
section 24 of the CPA the matter or the transaction on the basis of which the
public officer corruptly accepts gratification is not his concern. It is that
of a public body. For this reason it is obvious that the public officer who
commits this offence must be one who has some say as regards the direction the
transaction goes hence his/her being given and accepting gratification.
With
regard to section 25 of the CPA the matter/transaction, the essence of which
gratification is corruptly accepted, is the concern of the public officer. This
officer has, in my judgment, the ultimate power to award or not to award
contracts. Indeed, this public officer then solicits, accepts or obtains gratification
in order to award or not to award the contract.
Further,
it could be argued that whatever an officer does under the said sections 24(1),
25(1) and 29 of the CPA amounts to assistance. This argument can not be
entirely correct. There is a difference in the nature of assistance given by
the public officer in sections 24 and 25 of the CPA on the one hand, and
section 29(1) of the CPA on the other hand. In respect of the said sections
29(1) of the CPA the transaction in issue is neither the public officer’s concern nor
one falling within or connected with his jurisdiction, powers, duties or
functions. The public officer, as a matter of fact, just finds himself in a
position where for money he can assist in the procurement or execution of some
contract. Indeed, the public officer would be described as peddling his
influence if his actions fall within Section 29 of the CPA.
The
matter at hand
Choice
of the charge to prefer against a defendant: overloading of the charge sheet
The discussion above shows that the
section(s) under which an officer will be charged will depend on the role
played by the officer in a particular transaction(s), the evidence and policy
considerations in operation. What this court finds equally clear is the fact
that the creation of a proliferation of offences was not aimed at allowing the
state to bring, at the flimsiest excuse, a plethora of counts against accused
persons but to ensure that every conceivable situation is taken care of.
Accordingly, whereas it is clear that in one transaction one can solicit,
accept or obtain gratification, it could never have been intended by the
legislature that an officer should be prosecuted separately for accepting,
soliciting and obtaining in respect of one transaction. Similarly, one can in
one transaction assist in the procurement, execution or promotion of some
contract but it could never have been intended that one should therefore be
prosecuted on all three heads in respect of one transaction. The following
statement of Edmund-Davies, L.J., in R. vs. Harris [1969] 2 ALL ER 599 @
G-H is very illuminating:
“[I]t
does not seem to this court right or desirable that one incident should be made
the subject matter of distinct charges, so that hereafter it may appear to
those not familiar with the circumstances that two entirely separate offences
were committed. Were this to be permitted generally, a single offence
could frequently give rise to a multiplicity of charges and great unfairness
could ensue…”
Further, in R.
vs. Staton [1983] Crim. L. R 190 it was rightly observed that the shorter
and more direct the indictments the better and swifter the process of justice.
It is observed that in the instant case the
prosecution has charged the defendant twice on the same facts. That is under
both sections 24 and 25 of the CPA in relation to first four counts. With
regard to counts five and six the prosecution has, on the same set of facts and
under the same section 29(1) (a) of the CPA, charged the defendant twice. What
the prosecution has done is against the principles governing prosecution. I am
saying this because an impression has been created that the accused is being
persecuted and not being prosecuted. Further, charging the defendant under both
sections 24 and 25 of the CPA, on the same facts, gives the strong impression
that the prosecution is not sure as to which offence the accused committed. In
point of fact, one would think that they have done this and then they come to
court in the hope that the accused will somehow trip himself in the wide net
cast by the charging legislation and get caught on at least one offence. That
is bad prosecuting practice that should not be encouraged. As a matter of fact,
if what the prosecution has done is allowed then there is going to be
unfairness of these proceedings thereby flying in the face of the provisions of
Section 42(2)(f) of the Republic of Malawi Constitution. The said Section
42(2)(f) of the Constitution guarantees fair trial to suspects.
The
prosecution should not charge the defendant twice on the same facts: R. vs.
Harris (supra.). The stipulation in Section 129 of the CP and EC is also
instructive on the observation that it is wrong to charge a defendant twice,
under two different sections, on the same factual premise. The state should
instead, on one set of facts, make up their mind as to which charge stands the
greatest chance of success and proceed accordingly. Or if the state wishes then
it may try to charge the accused in the alternative for another of the
offences. As a matter of fact, in the Certificate for Summary Procedure Trial,
and the charge sheet that was presented to the court below, the state had
intimated that other counts would be preferred in the alternative. That
approach seems to have been abandoned when the matter was brought before this
court for the actual trial of the criminal action. In making this observation I
am aware that the law creates various offences on the same facts but the aim,
as was said above, was not to allow the state to charge an accused person with
a myriad offences but rather to cover every eventuality. The most the
prosecution can do is as was put by Chatsika, J., as he then was, in Bvungo
vs. Republic 8MLR 349 @ 350 lines 26-34, when he said that:
“…[T]he proper procedure to be adopted when so many counts are
preferred against an accused person is that the prosecutor should proceed
against the accused person only in a few counts on the record. If convictions
are obtained on those counts, the rest may only be taken into account for
purposes of sentence. If this procedure is not adopted one can well imagine
absurd situations being reached-where, for example, a person may
be awarded a total sentence which may be well out of all proportion…”
I must add that
even if the prosecution was allowed to proceed
as they wish,
which they will not be permitted, they ought to know that on conviction the
court would only impose concurrent sentences.
Statement, and
particulars, of offence
Section 126 of the Criminal Procedure
and Evidence Code (the CP and EC) provides that:
“Every
charge shall contain, and shall be sufficient if it contains, a statement of
the specific offence or offences with which the accused is charged, together
with such particulars as may be necessary for giving reasonable information as
to the nature of the offence charged.”
And Section
128(a) (ii) and (iii) of the CP and EC stipulates, inter alia, that:
“The
statement of offence shall describe the offence shortly in ordinary language,
avoiding so far as possible the use of technical terms.
After
the statement of offence, particulars of such offence shall be set
out in ordinary language in which use of technical terms shall not be necessary.”
Further, and
most importantly, Section 42 (2) (f) (ii) of the Republic of Malawi
Constitution says that one of the rights of an accused person is a fair trial,
which includes the right: to be informed with sufficient particularity of
the charge [preferred against him]. The provisions quoted above must always
be borne in mind when drafting charges against an accused person. Did the
prosecution take into account these provisions at the time it was drafting the
charges against the defendant? I am afraid the answer to this question is in
the negative. Why do I say so?
Statements of offence
It is noted that the
statements of offence, in all the six counts in the charge sheet, are
identical. The said statement used to describe all the offences in the charge
sheet is ‘corruption by a public officer’. Whereas it
might be correct to charge an officer with ‘ corruption by a public
officer’ under section 24(1) of the CPA it is wrong to do
that with respect to sections 25(1) and 29(1) of the said CPA. As I have
already demonstrated above the offences in sections 24, 25 and 29 of the said
CPA are totally different and distinct. This comes out clearly when one reads
the marginal notes to these sections. Thus by indicting the statement of
offence as ‘corruption by a public officer’ in all the
counts, as has been done here, fails to send across the differences inherent in
the offences created by the different sections as shown by the words used in
the marginal notes. The words used in the marginal notes to sections 24, 25,
and 29 of the CPA are different. Section 24 of the CPA states 'corrupt
practices by or with public officers’. Section 25
says ‘corrupt use of official powers and procuring
corrupt use of official powers.’ Then the marginal note to
section 29 of the CPA refers to ‘gratification
for giving
assistance etc. in regard to contracts’. The drafting
of offences under these sections, especially where the defendant is indicted
with so many counts, must be differentiated so that the accused knows from the
very beginning that he faces three different offences. This will be achieved by
using the words in the marginal notes. I say this while appreciating the status
of marginal notes. To this end I am aware of the instructive dictum of Jere,J.,
as he then was, in Republic vs.Ali Umali White 8 MLR 340 @ 342 lines 2-9
when he said:
“…In other sections, marginal notes are used to comply with the
provisions of section 126 of the Criminal Procedure and Evidence Code…This practice
must be used with care…”
In
the instant case the marginal notes, if read with the provisions of sections
24, 25 and 29 of the CPA properly and clearly describe the offences. By not
using the marginal notes the charges preferred against the defendant, in counts
two; four; and six; have been wrongly described. Indeed, as noted earlier, the
statements of offence as drafted leaves one thinking that there is no
difference in the offences that were allegedly committed by the defendant.
If
we follow the marginal notes, the statement of offence for the offence under
section 25(1) of the CPA ought to have been ‘corrupt use of official
powers’ and not ‘corruption by a public
officer’. The use
of the words ‘corruption by a public officer’ is suitable
for the offence provided for in section 24(1) of the CPA. With regard to the
offence under Section 29(1) of the CPA the statement of offence should not be
the same as the one used in respect of Sections 24(1) and 25(1) of the CPA. The
use of the relevant marginal note to Section 29 of the said CPA might be of
assistance.
Particulars of offence:
counts one and two
In
counts one and two the state has basically alleged that ‘persons unknown’ bribed the
defendant. The state further alleges that in return the accused awarded
contracts to the said ‘persons unknown’ to supply fuel and other
fuel related products. As I understand it, the use of the term ’a person
unknown’ may be allowed if the name of the person, to
whom reference is made, is not known or where for any other reason it is
impracticable to give such a description or designation. An instructive
statutory authority on this proposition could be Section 128(d) of the CP and
EC.
The above statement notwithstanding, it
must be pointed out that whilst the use of the term could not have caused
consternation in the past the same is not true today. I am making this
observation advisedly due regard being had to a pertinent stipulation in our
current Republic of Malawi Constitution. As shall soon be demonstrated the use,
in counts one and two, of the term “persons unknown” runs foul to
the provisions of Section 42(2)(f)(iii) of our Constitution, the relevant parts
of which are in the following terms:
“Every
person arrested for, or accused of, the alleged commission of an offence shall…have the right,
as an accused person, to a fair trial, which shall include the right to be
presumed innocent…”
In
coming up to the conclusion that the term ‘person unknown’, as used
herein, offends the provision mentioned above the court has been guided by the
proposition of law made by Lord Wilberforce in Minister of Home Affairs vs.
Fisher [1979] 3 All E.R. 21 @ 26d-e. The essence of the said proposition of
law is that when interpreting the constitutional provisions dealing with
fundamental freedoms and rights the courts should give those provisions a
generous interpretation and avoid what has been called “the austerity
of tabulated legalism.” It is in recognition of this principle of law
that this court is of the view that the lack of sufficient particulars, in
counts one and two, to identify the person who it is alleged bribed the
defendant, offends the fundamental right provided for in Section 42(2)(f)(iii)
of the Constitution. Why do I say so?
There is a danger that we could have an
unfair trial in this matter if the state is allowed to proceed with counts one
and two as presently drafted. If we do not know the persons who gave
gratification to the defendant how do we then know, much less conclude, that
the payment and the acceptance of the money was corrupt or that it was in
relation to the award of contracts to supply fuel and fuel related products?
Isn’t
the prosecution fishing? As a matter of fact, the use of the term ‘unknown persons’ has the effect
of calling upon the accused to prove that the money he allegedly received is
not a bribe. Put in another way, the state wants the defendant to prove himself
innocent of an allegation of corruption. Indeed, it is the opinion of this
court that the prosecution hopes to prove its case just by the mere fact that
the accused has a huge amount of money or that he allegedly received similarly
huge amounts of money from persons or sources unknown. The court is fortified
in this view because of what the state had earlier on indicated in the
Certificate for Summary Procedure Trial that was presented to the court below.
In the committal proceedings, where the defendant was committed for trial
before the High Court, the state intended to charge the defendant with a
non-existent offence under Section 32 of the CPA. The state will not be allowed
to bring the same count through the back door. The framing of the charges in
counts one and two is dangerously close to being unconstitutional if one takes
into account the provisions of the said Section 42(2)(f)(iii) of the
Constitution.
The long and short of it is that the use
of the term’ persons unknown’ has the
potential of offending or violating the defendant’s right to be
presumed innocent as set out in the said Section 42(2)(f)(ii) and (iii) of the
Republic of Malawi Constitution. The defendant has a right to be informed with
sufficient particularity of the charges against him. He also has the right to
be presumed innocent. By not giving the description or designation of the
persons who allegedly bribed the accused, the first two proposed counts do not
adequately inform the defendant of the charges against him. Moreover, as
already observed, by using the term ‘persons unknown’ there is a
threat that the burden of proof in respect of these two counts will be
reversed. It is in appreciation of the observations made above that this court
agrees with learned Counsels for the defendant that counts one and two lack sufficient
particulars to enable the accused put up his defence or have a fair trial.
There is lack of sufficient particulars when the state alleges that unknown
persons gave the defendant a graft and the latter then allegedly awarded a
contract to these unknown persons. Further, if the burden of proof were to be
reversed which, as we have seen above, is likely to happen in respect of counts
one and two, then the right to be presumed innocent will be seriously
compromised and undermined. There is a threat that the defendant’s right to a
fair trial, including his rights to be presumed innocent and to be informed
with sufficient particularity, will be violated if counts one and two are
allowed to stand as they are. Despite calls to have the two counts amended the
prosecutors insist that counts one and two must remain as they are. Do we have
to wait, without giving a remedy, until when the threat manifests itself during
trial? I do not think so. Indeed, if we waited it would be too late to protect
the accused’s said fundamental rights. This is most especially
so when the matter before this court is a criminal action. Furthermore, Section
151(1) of the CP and EC demands that an objection as to the form and content of
the charge sheet must be made at an earlier stage in the proceedings.
Now, where there is an existing threat
to a fundamental right guaranteed under our Constitution the court is enjoined
to give an effective remedy to a complainant. One such remedy is an order that
is necessary and appropriate to prevent that right from being unlawfully denied
or violated in the circumstances of a particular case: see Section 41(3), as
read with Section 46(2) and (3), of the Constitution. The court has already
found that counts one and two threatens the enjoyment of the defendant’s right to a
fair trial, including the right to be presumed innocent and the right to be
informed with sufficient particularity of the charges against him in the said
counts one and two. Considering that the state has not amended counts one and two,
the only effective remedy that the court can think of, as of now, is to quash
the said counts.
Conclusion
In view of the foregoing observations
and findings, the defendant can and should only answer the charges in respect
of the allegation concerning Hamble Energy Limited and Europetrol Limited. As
to the nature of the offences that is left to the prosecutors. For the
avoidance of any doubt counts one and two are hereby expunged. Further, this
court finds and concludes that in relation to counts 3,5 and 6 the state should
drop any two of the said counts or the prosecution must prefer one of the three
and all the other two offences must be charged in the alternative. Finally,
with regard to count four Counsels for the state is advised to change the statement
of the offence to “corrupt use of official powers”.
I am mindful that the court had set the
time limit within which some processes were to be taken. Through partial fault
on the part of the state, in that they brought defective counts, it has not been
possible to comply with the earlier order of the court. It therefore follows
that the said earlier order should be, and is hereby, varied accordingly. The
defendant will now take his plea on the 27th of January 2003. The
trial of this case shall commence on 17th February 2003. This will
allow both parties to adequately prepare for the trial of the criminal action
herein.
Pronounced in
open court this 20th day of January 2003 at the Principal Registry, Blantyre.
F.E.Kapanda
JUDGE
Crim. Case No.
108 of 2002