Guys,

for those who might be interested to know how Lucious Banda walked free from prison today,here is the judgement as given by  Justice George Chimasula Phiri(its very long so pliz be patient but its worth the read!!)

IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTY
CRIMINAL APPEAL NUMBER 48 OF 2006
BETWEEN:
LUCIUS CHICCO BANDA )……… APPELLANT
Also known is Lucius Chidampamba Banda)
AND
THE REPUBLIC……………………………………. RESPONDENT
CORAM : HON JUSTICE CHIMASULA PHIRI
Chisanga of Counsel for the appellant
(Assited by Nyimba and Mwakhwawa both of Counsel )
Steven Kayuni, Janet Kayuni and M. Chidzonde
(all Senior State Advocates representing the State.
Mrs. M. Pindani – Principal Court Reporter
Kamanga- Official Interpreter Officer
Miss Phiri- Recording
(Being Criminal Case Number 636 of 2005 at the Chief Resident
Magistrate’s Court sitting at Zomba).
JUDGMENT
This is an appeal by Lucius Chicco Banda against his
conviction and sentence.
In the lower Court the appellant faced charges on two Counts
with an alternative count to the first. In essence he was charged with
three counts. On the first count the appellant was charged with
uttering a false document contrary to Section 360 as read with
Section 356 of the penal code. The particulars alleged that Lucius
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Chidampamba Banda in the month of February 2004 in the district of
Balaka knowingly and fraudulently uttered a false document namely a
Malawi School Certificate of Education number 1951/91 to the Balaka
Returning Officer Atanazio Gabriel Chibwana. The second count
which is alternate to the above count, the prosecution alleged that
Lucius Chidampamba Banda procured the execution of a document
by false pretences contrary to Section 362 as read with Section 356
of the Penal Code. The particulars of this alternate count allege that
Lucius Chidampamba Banda in the month of February 2004 in the
district of Balaka made false representations as to the nature of a
Malawi School Certificate of Education bearing number 1951/91
thereby procured Atanazio Gabriel Chibwana, a Balaka Returning
Officer to execute the said document.
Finally, the third count related to giving false information to a
person employed in the public service contrary to section 122 of the
penal code. The particulars averred for this offence are that Lucius
Chidampamba Banda in the month of February 2004 in the district of
Balaka knowingly and fraudulently gave false information to the
Balaka Returning Officer, Atanazio Gabriel Chibwana causing him to
omit to conduct the prescribed English proficiency test for members
of parliament which he would have done if the true state of facts
respecting which information was given were known to him as
required by a person employed in the public service. The appellant
was convicted on the first count and sentenced to 21 months
imprisonment with hard labour. Naturally the alternate count fell on
the way side. Again the lower court convicted the appellant on the
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third count and sentenced him to 6 months imprisonment with hard
labour. The sentences imposed by the learned Chief Resident
Magistrate were ordered to run concurrently with effect from 31st
August, 2006.
On 7th September 2006 the legal practitioners for the appellant
filed notice of intention to appeal. The petition of appeal contains 10
grounds of appeal against conviction and 5 grounds of appeal against
sentence. These grounds are set out in full in the judgment.
(a) Appeal against conviction (Grounds)
1. The learned trial Magistrate erred in admitting in evidence
exhibits PEX8(a) and PEX8(b).
2. The learned Magistrate erred in finding that the
Appellant/Accused wrote on the nomination forms when
No handwriting expert confirmed his handwriting.
3. The learned Magistrate erred in finding that exhibit PEX8(b)
was a false document.
4. The learned trial Magistrate erred in finding that the
Appellant (Accused) knowingly uttered exhibits PEX8(a) and
PEX8(b).
5. The leaned Magistrate erred in holding that the documents
tendered in court were the same documents given to
P.W.5 by P.W. 4 when the said documents were not verified
by P.W.4
6. The learned trial Magistrate erred in not according the
Appellant (Accused) a fair trial.
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7. The learned Magistrate erred in failing to appreciate the need
by the State to call evidence of the Electoral Commission in
support of the fact that the nomination forms and M.S.C.E.
Certificate in issue were indeed those alleged to have been
given by the accused and which the Electoral Commission
actually based in their decision in allowing the appellant or to
have the accused/appellant stand as Parliamentary
Candidate for the Elections.
8. The learned Magistrate erred in coming to a conclusion that
the Appellant/Accused made a representation to P.W.4 that
the Appellant had a minimum qualification of an M.S.C.E.
when the nomination papers were not proven to have been
written by the Appellant.
9. The learned Magistrate erred in finding that the state had
proved all the elements of the offence under S.122 of the
penal code.
10. In all circumstances, the conviction on uttering a false
document, and giving false information to a person employed
in the public service is against the weight of evidence
requiring it to be quashed.
(b) Appeal against sentence (Grounds)
11. The learned Magistrate erred in metting out a custodial
sentence to the Appellant/Accused when the
Appellant/Accused was a first offender.
12. The learned Magistrate took into account and based his
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decision on an erroneous fact that the Appellant/Accused
deserved an immediate custodial sentence owing to the
nature of the document uttered.
13. The sentencing of the Appellant/Accused to 21 months I.H.L
was wrong in law.
14. The learned Magistrate erred in imposing a custodial
sentence when he convicted the Appellant/Accused on the
offence under Section 122 of the Penal Code.
15. The leaned Magistrate’s sentence was wrong in principle
and or manifestly excessive and ought to be set aside.
The State strongly opposes this appeal arguing that there was
sufficient evidence in the lower court to entitle the court convict the
appellant. Further, that the sentence passed by the lower court was
appropriate. The State prays for dismissal of the appeal in its
entirety.
Evidence of the Lower Court
The first prosecution witness (PW1) was Eustance Sam
Kazembe, deputy headmaster of Mangochi Secondary School. He
stated that in Mid- October 2005 some Police Officers came to the
school to check on the records of Alfred Blessings Mandala who
wrote his MSCE examinations at the school in 1991. He said that he
checked the records and found duplicate notification of the results for
Alfred Blessings Mandala and other names of candidates who sat for
the examinations in that year. He stated that Mandala passed his
MSCE Examination and that his certificate number was 1951/91. He
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also stated that the records at the school showed that Mandala
collected his certificate on 21st April1992. In cross-examination the
witness said that he joined Mangochi Secondary School in 2004 and
that his evidence is based on the school records. He conceded that
he did not know who documented these records. He also said that
the record concerning certificate 1951/91 was prepared by MANEB.
In Re-examination he stated that he assumed that Alfred Mandala
collected his certificate.
The second prosecution witness (PW2) was Ruth
Mankhambera, a teacher at Bilira Community Day Secondary School.
On 24th October 2005 when both the headmaster and his deputy
were out on other duties, there came a Police Officer to check on the
records for 1991 MSCE examination and in particular for Lucius C.
Banda. PW 2 testified that according to these records the said
candidate failed. She tendered the record which was prepared by
MANEB. In cross-examination she stated that she joined Bilira CDSS
in January 2003 and that the records in question are kept in the
Headmaster’s office. She said that it was her first time to see the
document from MANEB. She stated that it was the document from
MANEB that made her believe that Lucius Banda was at Bilira CDSS.
She confessed that she could not say that Lucius Banda forged any
document. In Re-examination the witness said the results came from
MANEB.
The third prosecution (PW3) was Alfred Blessings Mandala. He
testified that he sat for his MSCE examination in 1991 at Mangochi
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Secondary School and passed. He was awarded a certificate and its
number is 1951/91 which he collected from the school on 21st April
1992.
In cross examination the witness said that he told the Police
that he had his certificate which he was awarded by MANEB.
The fourth witness (PW4) was Atanazio Gabriel Chibwana. He
testified that he was District Commissioner for Balaka for seven years
and knew the appellant as Member of Parliament for Balaka North.
As District Commissioner he was returning officer for the Malawi
Electoral Commission (MEC) during the 2004 general elections. One
of duties was to receive nomination papers for contesting candidates.
He said that he received nomination papers from the appellant in
2004. He said that one of the requirements for the candidates was a
minimum of an MSCE or its equivalent. He stated that those without
minimum qualification were required to sit for a prescribed English
proficiency test. He stated that the appellant was not among the list
of candidates who sat for the English proficiency test. PW4 stated
that the appellant attached to his nomination papers a copy of his
MSCE. He tendered both nomination papers and copy of said MSCE
Certificate as Exhibits PEX VIII(a) and PEX VIII(b) respectively. In
cross-examination PW4 stated that MEC instructed the witness to
use MSCE certification as qualification for candidates contesting to
become members of parliament and in the absence of such
qualification, conduct English proficiency test. PW4 said he received
a copy MSCE certificate from the appellant. He stated that his duty
was to check the documents for compliance. However, verification of
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the same was for MEC and other relevant bodies. PW4 said that
confirmation of features on MSCE certificates was the domain of
MANEB. PW4 stated that he could not say if Exhibit PEX VIII(b) is
the same certificate he received from the appellant but his belief was
that it was. He said candidates presented copies while retaining the
original thereof. He said he kept the copy at the Office and when the
Police came during investigations of this matter he pulled out the
copy and gave it to the Police. In Re-examination he said that he
was given a photocopy of the certificate and not the original. His
belief is that Exhibit PEX VIII(b)is the copy he received from the
appellant.
The fifth prosecution witness (PW5) was Robert Robins Lighton
Harawa, director of Security at MANEB. He has worked for MANEB
for 11 years. His department does verification of certificates. He
stated that a certificate number carries the year of qualification and is
specific to the particular individual and neither two persons could
have the same certificate number nor two centres could have the
same number. He stated that where the contents of the certificate
tally with the information in the database the certificate is genuine. If
there is any variation between the certificate and the database
information, the certificate is fake or false. He stated that in October
2005 the Police brought to the witness Exhibit PEX VIII(b) for vetting.
The certificate bore the name of Lucius Chicco Banda. He stated that
however the records showed that the rightful owner of the certificate
number 1951/91 was Alfred Blessings Mandala from Mangochi
Secondary School. He told the Court that examination number
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11/015 which appears on Exhibit PEXVIII(b) was for some other girl
at Chiradzulu Secondary School. He also told the Court that their
database showed that Lucius C. Banda wrote his MSCE examination
in 1991 at Bilira MCDE as candidate number 96/015 and failed the
examination. Another unsuccessful attempt was made in 1992 at
Charles Lwangwa. He stated that Lucius Chicco Banda or Lucius
Chidampamba Banda did not quality for an MSCE certificate. In
cross-examination he stated that it was himself and Mr. Bandawe
who vetted exhibit PEX VIII(b). However, it was Mr.Bandawe who
signed in the presence of PW5. The witness stated that he has
knowledge that this exhibit PEX VIII(b) was the certificate which was
given to the Returning Officer. In Re-examination, PW5 stated that
Mr. Bandawe signed with knowledge of PW5.
The last prosecution witness (PW6) was Chipwiri, Regional
Detective Inspector based at Eastern Region Police Headquarters.
He testified that he was detailed to go to Balaka District
Commissioner’s Office to investigate a certificate that the appellant is
alleged to have presented to the returning officer. He took the
certificate to MANEB for verification and he was told that the
certificate belonged to Alfred Blessings Mandala of Mangochi. He
went to Mangochi and collected Mandala’s certificate and took it to
MANEB where it was confirmed to be genuine. PW6 then arrested
the appellant, who exercised his right to remain silent.
After the prosecution closed its case, the court ruled that a
prima facie case had been made against the appellant. The
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appellant elected to exercise his constitutional right to remain silent.
He did not call any witnesses.
It is necessary that certain obvious statements of law be repeated
and this has been so in almost all criminal cases. The first of such
statements relates to the burden of proof in criminal cases. No
judgment will pass the test if it does not allude to the fact that the
burden to prove the guilt of the accused person is placed on the
prosecution. This position has come to be accepted that it is not the
duty of an accused person to prove his innocence. The Constitution
of Malawi has even created a constitutional right for an accused
person in a fair trial to be presumed innocent and to remain silent
during plea proceedings or trial and not to testify during trial – Vide:
Section 42(2)(f)(iii). An accused person who elects to exercise his
right to remain silent should not be taken to be fearing self
incrimination. The presumption of innocence on the part of the
accused cannot be taken way because of his election not to testify.
The second statement which is obvious relates to the standard of
proof in criminal cases. A judgment will not pass the test if it omits to
state that in criminal cases the standard of proof is beyond any
reasonable doubt. Put simply the court must feel sure of the guilt of
the accused. Where the Court has some doubts relating to the guilt
of the accused on certain elements of the offence, it will not be open
to such a court to proceed to convict the accused. Otherwise the
impartiality and neutrality of the Court will be questioned. It is
sufficient for now that the learned Chief Resident Magistrate
remembered to make these statements in his judgment.
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In this appeal Counsel for the appellant has attacked
admissibility of certain documental evidence and has submitted that if
the Court had not allowed that evidence, the prosecution could have
failed in its duty to discharge the burden of proof up to the requisite
standard. The State makes a concession but is quick to a argue that
the principle that substantial justice should be done without undue
regard for technicality at all times – Vide: Section 3 of the Criminal
Procedure and Evidence Code.
The appellant opened his appeal in relation to conviction on count
contrary to Section 122 of the Penal Code. This section reads as
follows:-
‘Whoever gives to any person employed in the public
service any information which he knows or believes to be
false intending thereby to cause, or knowing it to be likely
that he will thereby cause such person employed in the
public service –
(a) to do or omit anything which such person employed in
the public service ought not to do or omit if the true state
of facts respecting which such information is given were
known to him; or
(b) to use the lawful power of such person employed in the
public service to the injury or annoyance of any person,
shall be guilty of a misdemeanour and shall be liable to
a fine of K300 and to imprisonment for three years.
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The appellant has submitted that the conviction on this count
cannot stand because the particulars did not disclose any offence
known to the criminal law. The law provides in Section 128 of the
CP & EC how charges should be framed. Part of the section
reads as follows:-
(a) (i) a count of a charge shall commence with a
statement of the offence charged, called the
statement of offence;
(ii) the statement of the offence shall describe the
offence shortly in ordinary language, avoiding as
far as possible the use of technical terms, and
without necessarily stating all the essential
elements of the offence, and if the offence
charged is one created by written law, shall
contain a reference to the section, regulation, bylaw
or rule of the written law creating the offence;
(iii) after the statement of the offence, particulars of
such offence shall be set out in ordinary language,
in which the use of technical terms shall not be
necessary:
Provided that where any rule of law or any Act limits the
particulars of an offence which are required to be given
in a charge, nothing in this paragraph shall require any
more particulars to be given than those so required;
13
Mr. Chisanga has submitted on behalf of the appellant that
firstly the particulars of any offence charged must therefore allege the
essential facts giving rise to the crime together with any mental
element required by the charging section. Meaning as he
understands the law that if the particulars fail to allege any of the
elements of the offence charged the charge will be incompetent as a
basis of a criminal proceeding against the accused. Meaning further
that if court proceeded to take an accused through a ‘trial’ based on
such a charge it would have indulged in an exercise in futility. There
would have been no charge on which to try and convict the accused
for the simple reason that the charge, or specifically the particulars
thereof would have failed to disclose any offence the basis of any
trial. Secondly, and this is in keeping with our present constitutional
dispensation and the consequent criminal jurisprudence, it must have
the effect of informing the accused with sufficient particularity at the
commencement of the trial of the charges or charge against him.
Section 42 (2)(f)(ii) of the Constitution provides that every
person arrested for or accused of the alleged commission of an
offence shall, in addition to the rights which he or she has as a
detained person, have the right as an accused person, to a fair trial,
which shall include the right to be informed with sufficient particularity
of the charge.
Counsel for the state has counter submitted that in addition to
provisions of Section 3 of the CP& EC, Section 5 of the CP & EC
provides that no finding, sentence or order passed by a court of
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competent jurisdiction shall be reversed or altered on appeal or
review on account of an error, omission irregularity in the complaint,
summons, warrant, charge, proclamation, order, judgment or other
proceedings before or during the trial or in any inquiry or other
proceedings under the Code unless such error or irregularity has in
fact occasioned a failure of justice, provided that in determining
whether any error, omission or irregularity has occasioned a failure of
justice the Court shall have regard to the question whether the
objection could and should have been raised at an earlier state in the
proceedings.
The essence of the arguments of Mr. Chisanga is that this
charge did not disclose any offence at all. If at all any offence was
disclosed the same was the creation of the prosecution and not
parliament. The words used in Section 122 appear to be plain and
unambiguous. The actus reus of the offence consists in the giving to
a person employed in the public service any information. The mens
rea consists of knowledge of the giver of that information or belief that
the information is false. Further the giver of that information must
have intended to cause or have knowledge that the false information
will likely cause such public servant to do or omit to do what he
should have done or do what he should not have done had the true
state of facts been known to that public servant. The prosecution
relied on the alleged fact that the appellant gave the returning officer
at Balaka information that he had an MSCE certificate. As a result of
this information the returning officer exempted the appellant from
sitting for an English proficiency test. Did the appellant give this
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information? The prosecution relied on Exhibit VIII(a) which is the
Nomination Form for a National Assembly candidate. At page 3 of
that form it is indicated in writing the following words –
‘Photocopy of my MSCE Certificate.’
This is in column V. The evidence in the lower Court does not
show conclusively as to who wrote this. No evidence was called to
prove that it was the appellant who wrote these words. The
assumption that operated on the minds of the prosecution and the
Court was that since the nomination form was for the appellant, then
it must have been the appellant who wrote these words. The burden
of proof was on the prosecution to prove that these words were
written by the appellant. It was never the duty of the appellant to
show that this was not his writing. The lower court erred in not
resolving the benefit of doubt in favour of the appellant. Even
assuming that these words were written by the appellant, were the
words false ? Again for a moment, the prosecution will be given the
benefit of doubt that it had proved falsity of the document, what was
the mens rea ? The particulars of the offence quoted above indicate
that the appellant did so knowingly and fraudulently to induce the
returning officer not to conduct an English proficiency test. The
prosecution provided a list of candidates who were to sit for English
proficiency test because such candidates did not have MSCE
Certificates or equivalent qualification. The State Counsel argued
that had the appellant not indicated that he had an MSCE Certificate
he would have been required to sit for English proficiency test. Mr.
Chisanga has argued and rightly so in my view that the requirement
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for one to have an MSCE Certificate in order to be exempt from
English proficiency test is not a requirement of the electoral law
under Section 38 of the Parliamentary and Presidential Elections Act,
1993. Section 38(i)(b)(ii) provides –
‘Every candidate or election representative shall at the
time of his nomination deliver to the returning officer-
(a) a nomination paper completed and executed in the
prescribed form;
(b) evidence, or a statutory declaration by the candidate
made before a Magistrate or a Commissioner for
Oaths, that the candidate –
(i)……
(ii) is able to speak and to read the English language well
enough to take an active part in the proceedings of the
National Assembly
It will be seen from the reading of this Section that production of
an MSCE Certificate is not a legal requirement for one to become a
candidate or to be exempt from English proficiency test.
Similar provision exists in Section 51 of the Constitution.
It may be a practice which MEC has developed to ensure that
potential candidates are able to speak and read the English language
well enough. The Malawi Supreme Court of Appeal articulated this
position is MSCA Civil Appeal No. 17 of 2004 – The State and The
17
Malawi Electoral Commission (appellant) and Ex-parte Rigtone E.
Nzima (Respondent) when it was stated-
‘Our position on the matter does not change, in the least,
when section 51 (1) (b) of the Constitution is read
together with section 38 (1) (b) (ii) of the P.P.E. Act. We
hold the view that upon applying the ordinary rules of
statutory interpretation, and against the background of
section 51 (1) (b) of the Constitution, section 38 (1) (b) (ii)
of the P.P.E. Act means the following: a candidate for
Parliament elections is under a duty to proffer evidence,
whatsoever and howsoever, or to make a statutory
declaration, that he or she is able to read and speak the
English language well enough to take an active part the
proceedings of the National Assembly. Evidence to be
adduced or proffered is any evidence whatsoever, which
in any given case is available to the candidate. Where
one does not have any means of proof by way of any
particular form of evidence, a candidate may, thus in the
alternative, present a statutory declaration made by the
candidate before a magistrate or a commissioner for
oaths. Both the evidence and the statutory declaration, in
the alternative, are means prescribed by the Legislature
by which in any particular case a prospective candidate
may show that she or he is able to read and speak the
English language well enough in order for her or him to
actively take part in Parliamentary proceedings. Thus, in
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any given case, either a submission of evidence or
presentation of a statutory declaration would suffice. A
candidate who adduces evidence besides presenting a
statutory declaration is undoubtedly more than merely
being suitably qualified for nomination.
There is no delegated power to the appellant for the
prescription of any particular forms or levels of academic
qualifications for the purpose, under section 38 (1) (b) (ii)
of the P. P. E. Act. Besides, there is no power delegated
to the appellant for the administration of the English
language test, as a form of evidence in addition to the
form of evidence or statutory declaration required under
section 38 (1) (b) (ii) of the P.P.E. Act or section 51 (1) (b)
of the Constitution. Be that as it may, we hold the view
that a certificate issued upon the taking of such oral
examinations would be part of the evidence, to be
received under the relevant provisions of the Constitution
or the P.P.E. Act, of the fact that a candidate has the
required ability to read and speak the English language.’
It will be seen from the position of the law here that the
particulars of the offence are not supported by any statutory or
constitutional provision. Counsel for the State has contended that the
appellant should have objected to the charge when it was read to
him. I do not, with respect, accept this argument. In the current
constitutional order where an accused person is virtually allowed to
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seal his mouth, he can let the prosecution make a fool of itself. It is
not the duty of the accused to be a mercenary to the prosecution to
help it come up with proper charges if the State, in a hurry to secure a
conviction, omits to properly charge the accused, the state does so at
the risk of losing the case. Sections 3 and 5 of the CP & EC do not
in my view help the State either. The defect in the charge caused
substantive failure of justice. The conviction under Section 122 was
misguided, irregular and cannot stand.