Former RBM Governor Kabambe, his deputy Mathanga discharged from charge of abuse of office but maintains that of fraud other than false pretences

* The charge of abuse of office is time-barred pursuant to section 302A of the Criminal Procedure & Evidence Code

* Kabambe had his caution statement recorded on 8th December 2021 but since that time, trial has not yet commenced.

* Mathanga’s statement was recorded on 7th March 2022 and counting a period of 12 months from those dates, the latest that trial should have commenced was 7th March 2023

By Duncan Mlanjira

The High Court has discharged two of the charges that were laid against former Reserve Bank of Malawi (RBM) Governor, Dalitso Kabambe and his deputy, Henry Mathanga of abuse of office but maintained that of fraud other than false pretences.

The charge of abuse of office was under section 95 of the Penal Code and that of against of fraud other than false pretences under section 319A of the Penal Code.

In his ruling on April 19, Justice Redson Kapindu ordered that the prosecution was at liberty to proceed with its case against the accused persons on other remaining charges.

“The Court is mindful of the firm indication by the State of its intention to add additional persons as accused persons in the present matter,” he took notice.

“In this regard, the matter is adjourned to a date to be fixed by the Court. Depending on whether the intended accused persons are indeed committed to this Court for trial very soon as indicated, the matter is so adjourned for fresh plea and possible further directions, or, failing such committal as indicated, the matter will be fixed for commencement of trial.”

Kabambe’s and Mathanga’s defence lawyers applied for the discharge contending  that the charge of abuse of office is time-barred pursuant to section 302A of the Criminal Procedure & Evidence Code (CP & EC). 

It was argued that the offence under section 95(1) of the Penal Code is a misdemeanour, carrying a sentence of not more than two years pursuant to the provisions of section 34 of the Penal Code.

Which provides that ‘when in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with a fine or with imprisonment for a term not exceeding two years or with both’.

The offence under section 95(2) of the Penal Code is classified as a felony and is punishable by a maximum prison term of three years.

Section 302A of the CP & EC imposes strict temporal constraints on the commencement and conclusion of criminal proceedings for offences triable by the High Court, which carry a maximum penalty of less than three years of imprisonment. 

Section 302A of the CP & EC is in the terms: ‘(1) Subject to subsections (2) and (3), the trial of any person accused of an offence triable by the High Court other than any other offence punishable by imprisonment of more than three (3) years, shall —

(a) be commenced within 12 months from the date the complaint arose; and

(b) be completed within twelve months from the date the trial commenced.

Where the accused person is at large the period prescribed by subsection (1) within which to commence the trial shall run from the date the person is arrested for the offence.

Where the cause of the failure or delay to complete the trial within the period prescribed by subsection (1) is not attributable to any conduct on the part of the prosecutions, the court shall order of time as it considers necessary to enable the completion of the trial.

A person accused of an offence shall not be liable to be tried, or continue to be tried, for the offence if his trial is not commenced or has not been completed within the period prescribed by subsection (1), and in such case the accused shall stand discharged of the offence at the expiry of such period must be commenced within 12 months from the date on which the complaint arose and must be concluded within 12 months from the date on which the trial commenced.

“In the present case, the Judge said, the 1st defendant [Kabambe] had his caution statement recorded on 8th December 2021. His Counsel argued that since that time, trial has not yet commenced. “Equally, in respect of the 2nd defendant [Mathanga], his statement was recorded on 7th March 2022. Defence Counsel argued that counting a period of 12 months from those dates, the latest that trial should have commenced was 7th March 2023.

“The Court agrees that on an examination of the timeline of the proceedings in the instant case, it is clear that the prosecution has failed to commence trial on the charge of abuse of office as against both defendants, within the statutorily prescribed period of 12 months.

The judge, after quoting other precedent cases, gave an example of a recent ruling in the case of Republic vs Saulos Chilima, Criminal Case No. 10 of 2023, where the Court definitively ruled that a failure by the State to commence trial within the period prescribed by section 302A(1) of the CP & EC is fatal to the charges concerned, in line with the express dictates of section 302A(4) of the same — “unless the prosecution is able to prove the exceptions under subsection (2) & (3) of section 302A of the CP & EC”. 

“Those exceptions are, first, where the State may demonstrate that the defendant was at large, in which case the period prescribed by subsection (1) of section 302A within which to commence the trial starts running from the date on which the person is arrested for the offence. 

“Second is where the cause of the failure or delay to complete the trial within the period prescribed by subsection (1) is not attributable to any conduct on the part of the prosecution.

“The Court notes that the State made no attempt whatsoever to show that any of these two exceptions apply in the present case. It follows, therefore, that the charge of abuse of office, being one that falls within the ambit of section 302A of the CP & EC, is thus extinguished by operation of law in terms of section 302A(4) of the CP & EC.

“Thus, on the charge of abuse of office contrary to section 95 of the Penal Code, the two defendants herein accordingly stand ‘discharged’ by operation of the law, pursuant to section 302A(4) of the CP & EC, and this Court’s role is merely to formally acknowledge and declare this preordained fact and legal reality under the law. The Court therefore so declares the discharge.”

On the fraud other than false pretences under section 319A of the CP & EC, Kabambe and Mathanga asserted that the particulars of the fraud other than false pretences charge, contrary to section 319A of the CP & EC, “cannot be substantiated and proved by the evidence that will be presented by the State, as evident from the disclosures that have been provided”.

“They argue that at the core of the State’s accusation against them is that they provided false or misleading information to the International Monetary Fund (IMF), and that by reason of their conduct, the IMF cancelled the country’s Extended Credit Facility (ECF), to the prejudice or detriment of the Malawi Government.

“The accused persons argue that the proof of detriment is an essential element of the charges herein under section 319A of the Penal Code.

“They argue that, as shown by various exhibits such as DK7, DK8, DK9, DK10 and DK11, the issue of a possible misreporting to the IMF by Malawi was first raised by the Managing Director of the IMF in May, 2021 when the ECF had already been terminated in September, 2020.

“On this basis, they submit that the charges herein cannot possibly be proven.”

Kabambe and Mathanga further argue that it is public knowledge that “it is not true that the IMF canceled the ECF on the alleged basis, but that the Malawi Government unilaterally terminated the ECF for its own reasons”. 

“In this regard, since such publicly available information ostensibly contradicts the allegations contained in the charge sheet, the accused persons seek an early and immediate termination of the proceedings either by way of discharge or permanent stay of the criminal proceedings.

“The Court wishes to state here that what the accused persons are asking the Court to do is basically to enter summary judgment against the State in a criminal proceeding. 

“However, the Court observes that unlike the case under the Courts (High Court)(Civil Procedure) Rules, 2017 (CPR, 2017), which allow for a summary judgment procedure as a way of ending proceedings early (Order 12 rule 23), the criminal procedure regime, as enshrined under the CP & EC, does not sanction such a summary judgment mechanism at the trial stage or pre-trial stage until the stage for establishing a prima facie case.” 

After reviewing precedent cases, and his own analysis, the Judge said the application for a discharge or a permanent stay of prosecution on the charge of fraud other than false pretences in respect of both accused persons “is therefore premature and unwarranted at this stage”.