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Controlling Theft in the Public Service: Penal Law and Judicial Responses in Malawi

Published online by Cambridge University Press:  28 July 2009

Clement Ng'ong'ola
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Extract

The period covering the first seven years of Malawi's independence (1964–1971) stands out as one of the most controversial in the country's postcolonial legislative history. It was during this period, for example, that the local or “Native” Courts of the colonial era were transformed into the now controversial Traditional Courts and given an existence separate from and independent of the High Court, as well as extensive criminal jurisdiction encompassing offences like murder and manslaughter and, subsequently, treason and sedition which were hitherto the preserve of the High Court. At the same time, the participation of lawyers in traditional court processes and the right of legal representation were curtailed under the pretext of ensuring that the course of justice would not be subverted by the frequent invocation of “technicalities” which lawyers are wont to invoke because of the alien and esoteric nature of their training. This paper is not concerned with the “law” of the Traditional Courts in Malawi which, elsewhere, continues to excite appropriate scholarly interest, but with another equally controversial law of the same period whose formulation was buttressed by similar antipathy towards the legal profession. This law introduced a special and rigorous regime for the prosecution and punishment of thefts in the public service.

Type
Research Article
Information
Journal of African Law , Volume 32 , Issue 1 , Spring 1988 , pp. 72 - 94
Copyright
Copyright © School of Oriental and African Studies 1988

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References

1 The transformation of the “Traditional Courts” and their role in the administration of criminal justice in Malawi is discussed by, among other, Chimango, L. J., “Tradition and Traditional Courts in Malawi”, X (1977) Comparative and International Law Journal of Southern Africa, 39–66,Google Scholar and Wanda, B., “The Role of Traditional Courts in Malawi”, in Takirambudde, P. (ed.) The Individual under African Law, University of Swaziland, 1982, 76–92.Google Scholar

2 For a more recent discussion on this topic see, for example, Nzunda, M., “Criminal Law in Internal Conflict of Laws in Malawi”, 29, 2 (1985), Journal of African Law, 129–146.CrossRefGoogle Scholar

3 Ss. 278 and 283–286 of the Penal Code, Cap. 23, Laws of Nyasaland, 1958.Google Scholar

4 See, generally, Hansard, Proceedings of the Malawi Parliament, Government Printer, Zomba, 3rd Session, 2nd Meeting, 5–7 10, 1965, 183–192.Google Scholar

5 Ibid., 184.

6 Ibid., 185.

7 Cap. 7:01, Laws of Malawi, as amended by Act No. 53 of 1965.Google Scholar

8 See Brietzke, P., “Theft by Public Servant in Malawi”, 1 (1972), Malawi Journal of Social Science, 65–75.Google Scholar This is surprisingly the only published article to date on this controversial topic. Some of the observations in this study have been rendered out of date not only by the passage of time but also by changes in the law which took place in 1973.

9 The jurisdiction of the Traditional Courts is set out in s. 13 of the Traditional Courts Act, Cap. 3:03 and supplemented by orders promulgated from time to time. In 1977, the Traditional Courts (Criminal Jurisdiction) (Amendment) Order, No. 133Google Scholar, and the Regional Traditional Courts (Criminal Jurisdiction) Order, No. 134 added the offence of abuse of office to the jurisdiction of these courts and presaged the most notable prosecution for theft by public servant in the Traditional Courts. In Rep. v. Masiku, Criminal Case No. 48 of 1977Google Scholar, a former executive chairman of ADMARC was charged with abuse of office and theft by public servant in the notorious Blantyre Southern Region Traditional Court. He was convicted on the first charge but acquitted on the more serious charge of theft when it transpired that the amount involved, about MK400,102.54, could be accounted for in “unauthorised loans” made by the corporation to a company in which the accused and members of his family were the principal shareholders. After failing to obtain the desired conviction in a “Traditional Court”, it would appear that the Prosecution, on whom rests the choice of a particular forum, now prefers to take such key cases through the Subordinate/High Court system.

10 See Muwalo v. The Republic, (1968) A.L.R. Mal. 1, 5Google Scholar and Mbalule v. Rep., (1966) A.L.R. Mal. 272, 277–278.Google Scholar In Ezekiel & Tawakali v. Rep. (unreported) Crim. App. No. 196 of 1981, the High Court suggested that since s. 283(1)Google Scholar does not disclose a new offence, a proper charge under it should also refer to s. 278. But an omission to do so is not likely to be fatal to the charge. Except where the report is indicated, as in the first two cases cited above, all the Malawian cases cited or referred to in this paper are as yet unreported.

11 D.P.P. v. Mwalwanda, (1965) A.L.R. Mal. 412, 413Google Scholar confirming Day v. Rep. (1958) A.L.R. Mal. 625.Google Scholar c.f. Kathumba v. Rep. (1965) A.L.R. Mal. 390Google Scholar and Rep. v. Belton Chikhasu, H.C., Conf. Case No. 925 of 1976 where EMEJULU and CHATSIKA, J J. respectively deprecated the practice of proving employment from oral testimony or in the absence of written evidence as dangerous. The holding of the Supreme Court however prevails as the obtaining law.Google Scholar

12 S. 4(vi).

13 S. 4(vii).

14 S. 4(vi) above is the provision which brings within the ambit of s. 283 employees in the various organisations which could be deemed to fall within the public enterprise sector. The leading authority on the interpretation of s. 4(vi) is Chitamire v. Rep., H.C., Crim. Case No. 8 of 1973.Google Scholar MEAD, J. held that the operative words of the provision are “established by or under”, and for an organisation to be established by or under any Act, that Act must make express provision for its establishment or creation. By virtue of this interpretation employees of the New Building Society could not be charged as public servants under s. 283 because the Building Societies Act, Cap. 32:01, did not provide for the creation of the New Building Society. It simply provided for the registration of Building Societies. Employees in the following organisations are, however, public servants since the organisations were expressly created or established by or tinder the indicated Acts: Electricity Supply Commission of Malawi, s. 3 of Cap. 73:03; The Malawi Broadcasting Corporation, s. 3 of Cap. 20:01; The Agricultural Development and Marketing Corporation (ADMARC), s. 3 of Cap. 67:03; The Malawi Book Service, s. 3 of Cap. 3:03; The University Council, s. 3 of Cap. 30:02; The Malawi Certificate Examinations and Testing Board, s. 3(1) of Cap. 30:04; The Malawi National Council of Sports, s. 3 of Cap. 30:05; and The Malawi Development Corporation, s. 3 of Cap. 39:01. This is not an exhaustive list of public enterprises and other organisations whose employees can be charged as public servants by virtue of s. 4(vi) of the Penal Code.

15 See Rep. v. Melkias Andrew Mcoco Banda, Conf. Case No. 13 of 1974 on employees of Air Malawi Ltd.Google Scholar; and Jedegwa v. Rep. Crim.App. No. 153 of 1977Google Scholar and Kalunga v. Rep., Crim.App. No. 180 of 1970, on employees of Malawi Railways Ltd.Google Scholar

16 See ss. 3–6 of Cap. 69:04.

17 See note 14 above, and Grey Alick Manda v. Rep., H.C., Crim.App. No. 12 of 1978, where CHATSIKA, J. took “judicial notice” of the fact that employees of ADMARC were employed on the public service.Google ScholarThe M.D.C. was presumed to be an organization within the public service in Muwalo v. Rep. (1968)Google ScholarA.L.R. Mal. 1 and Kenton Mlambo v. Rep., H.C. Crim.App. No. 76 of 1980.Google Scholar

18 G.N. 276 of 1965 and G.N. 25 of 1968Google Scholar.

19 S. 4 of the Republic of Malawi Constitution Act.

20 Hansard, 3rd Session, 10 1965, p. 189.Google Scholar

21 Arts. iv and viii of Malawi Congress Party Constitution, Malawi Press Limbe, 1969.Google Scholar

22 See, for example, Rep. v. M'ndawala, H.C. Conf. Case No. 1555 of 1976;Google ScholarRep. v. Sefasi Kamtogo Mwale, Conf. Case No. 1563 of 1976;Google ScholarRep. v. Gresham Gilbert James Banda, Conf. Case No. 1564 of 1976;Google ScholarRep. v. Chimphonda & Kasalalika, Conf. Case No. 1565(a) of 1976;Google ScholarRep. v. Maya, Conf. Case No. 1566 of 1976;Google ScholarRep. v. Mphanje, Conf. Case No. 1614 of 1976;Google Scholar and Sisilo v. Rep. Crim.App. 151 of 1977.Google Scholar

23 Cap. 13:03.

24 S. 38, Art. vii.

25 See Phiri v. Rep., H.C, Crim.App. No. 134 of 1976;Google ScholarMtenje v. Rep., Crim.App. No. 32 of 1979;Google Scholar and Nyundo v. Rep., Crim.App. No. 143 of 1984.Google Scholar

26 Chilale v. Rep., Crim.App. No. 54 of 1977.Google Scholar

27 Dailesi Namasasi Mwale v. Rep., Conf. Case No. 529 of 1980.Google Scholar

28 S. 2 of the Young Pioneers Act.

29 Muwalo v. Rep., (1968) A.L.R. Mal. 1, 9.Google Scholar

30 Ibid., p. 13.

31 In Rep. v. Bondo, H.C., Conf. Case No. 354 of 1973,Google Scholar for example, an accounts clerk who embezzled K506.69 by preparing false payment vouchers and forging his superior's signature escaped with a 2 year sentence instead of a 5 year sentence for theft by a public servant when EDWARD, J. ruled that the appropriate conviction was for obtaining money by false pretences. In similar circumstances in Rep. v. Joe Kapichi, Conf. Case No. 489 of 1976, CHATSIKA, J. reduced the sentence of another fraudulent clerk who had embezzled K336 from 4 to 2 years.Google Scholar

32 The most remarkable example of such differentiation is provided by the related cases of Kavalo v. Rep., H.C., Crim.App. No. 62 of 1976Google Scholar and Chipagala v. Rep., Crim.App. No. 61 of 1976.Google Scholar The headmaster of a primary school in rural Blantyre was responsible for the payment of teachers' salaries at his school. A clerk of the District Office was responsible for the preparation of the salary payment vouchers. The two worked out a scheme under which the clerk prepared some fictitious vouchers and the headmaster obtained salaries for non-existent teachers. The proceeds which eventually amounted to K 1,033 were shared equally between the two. Applying the authority of Muwalo, JERE, J. ruled in Kavalo that a conviction under s. 283(1) was misconceived. He replaced the 8 year sentence with one for 5 years, the maximum for the offence of obtaining money by false pretences. In Chipagala, CHATSIKA, Ag.CJ. confirmed the conviction under s. 283 and the sentence of 8 years for the clerk without even referring to the authority of Muwalo. Either through oversight or ignorance the authority of Muwalo was also ignored in Phiri v. Rep., Crim.App. No. 134 of 1976Google Scholar and in Chinsenga v. Rep., Crim.App. No. 114 of 1981.Google Scholar The result of ignoring Muwalo however accords with the wishes of the legislature, but this is an aspect of the law which could benefit from a clarification by the Supreme Court.

33 Fred Nyirenda v. Rep., H.C., Crim.App. No. 125 of 1977.Google Scholar

34 Viscount Sankey, L. C., in the celebrated case of Woolmington v. The Director of Public Prosecutions, House of Lords, [1935] A.C. 462, 481–2.Google Scholar

35 Cross, Rupert, The Goldem Thread of English Criminal Law, The Rede Lecture, Cambridge, 1976, 15;Google Scholar and Williams, Glanville, The Proof of Guilt, London, 1963, 184–185,Google Scholar who submitted that there is no reason of expediency for departing from the golden thread rule, and that the departures he was considering had been achieved through carelessness and lack of subtlety in interpreting statutory provisions.

36 Likaku v. Rep., (1966) A.L.R. Mal. 83,Google Scholar see also Rep. v. Zambia, (1971) A.L.R. Mal. 109;Google ScholarKamanga v. Rep., Crim.App. No. 109 of 1980;Google ScholarKingwell Smith Nyirenda v. Rep., Crim.App. No. 100 of 1981;Google Scholar and more recently Simfukwe v. Rep., Crim.Rep. No. 15 of 1986.Google Scholar

37 Phipson, & Elliot, , Manual of the Law of Evidence, London, 1980, 51–52.Google Scholar

38 Ibid., 51.

39 See also Williams, Glanville, Criminal Law, The General Part, 2nd ed., London, 1961, 871Google Scholar and Cross on Evidence, 5th ed., London, 1979, 86.Google Scholar

40 Miller v. Minister of Pensions [1947] 2 All E.R., 372, 373.Google Scholar

41 See R. v. Carr-Briant, [1943] 2 All E.R. 156, 158–159Google Scholar which was cited and approved in the Malawi High Court in Rep. v. Levulo, (1965) A.L.R. Mal. 494, 498,Google Scholar and in Wilfred Andrews Banda v. Rep., Crim.App. No. 96 of 1974.Google Scholar

42 Miller v. Minister of Pensions, [1947] 2 All E.R. 372, 374.Google Scholar

43 See, for example, Heydon, J. E., Evidence, Cases & Materials, London, 1984, 42.Google Scholar

44 [1961] 3 All E.R. 523. The case concerned the defence of automatism in a murder charge. Denning, Lord suggested (at p. 535)Google Scholar that “in order to discharge the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary.” Morris, Lord (at p. 538)Google Scholar also made another remark from which the standard for the discharge of an evidential burden reposed on the accused can be inferred. He ruled that “there was no sufficient evidence, fit to be left to a jury, on which a jury might conclude that the appellant had acted unconsciously and involuntarily or which might leave a jury in a reasonable doubt whether this might be so…”.

45 Criminal Pleading, Evidence and Practice, 35th ed., para. 1001, p. 411.Google Scholar

46 Likaku v. Rep. (1966) A.L.R. Mal. 83, 90.Google Scholar

47 See Eggleston, R., Evidence, Proof and Probability, London, 1978, 91.Google Scholar In Kamanga v. Rep., Crim.App. No. 109 of 1980Google Scholar and K. S. Nyirenda v. Rep., Crim.App. No. 100 of 1981,Google Scholar BANDA, J. held that the “evidential burden” which is shifted to the accused person under s. 283(1) can be discharged on a balance of probabilities. This appears to be a misunderstanding and misapplication of the standard required for the discharge of a legal burden thrust upon the accused.

48 Hill v. Rep., M.S.C.A. (Skinner, C. J. and Chatsika, and Edwards, J. J. A.), (1971) A.L.R. Mal. 180, 183.Google Scholar The Supreme Court endorsed an obiter of PIKE, Ag.CJ. on the same effect in Thomson v. Rep., (1969) A.L.R. Mal. 264,Google Scholar but it lost the opportunity to overrule or comment adversely on the earlier case of Likaku (supra) which is now widely cited as authority for the proposition that s. 283(1) shifts only the evidential burden to the accused.

49 Rep. v. Zambia (1971) A.L.R. Mal. 109.Google Scholar

50 The nearest the High Court has come to defining a shortage is the following remark by MTEGHA, Ag.J. in Rep. v. Masika, Crim.App. No. 135 of 1983:Google Scholar “my understanding is that shortage in a commercial sense means that there is a deficiency of money from trading activities i.e. stock available, the stock sold and the money collected indicates a deficiency either in stock or money.” In Hill v. Rep. (supra) the Supreme Court cautioned that s. 283(1) was aimed at all cases of theft by a public servant and not simply the so called “shortage” cases. It is however observable that it is mostly in such cases that the prosecution will rely on the presumption of guilt in the section.

51 Chatsika, J. in Rep. v. Zambia (supra) 112.Google Scholar The judge here refused to uphold the conviction f an ADMARC crop-buyer who was allegedly found with a small deficit at the end of the crop-buying season which he was repaying from his salary before he was charged.

52 Jere, J. in Chipula & Phiri v. Rep., Crim.App. No. 104 of 1981.Google Scholar The judge here refused to uphold the conviction of two barmen who were found with a stock-deficiency after a concert at the district council hall where they are employed. He argued that the shortage could have been due to short delivery of stock, breakages or some other reasonable intervention other than theft. Chidakwani v. Rep., Crim. Case No. 2 of 1982,Google Scholar is another case in which the High Court refused to uphold a conviction based on the simple fact that the books of account of a paymaster could not balance.

53 Banda v. Rep. (1971–1972) 6 A.L.R. Mal. 383, 385,Google Scholarcited with approval in numerous High Court cases including Rep. v. Kadyabowa, Conf. Case No. 1610 of 1977;Google ScholarRep. v. Mgawa, Conf. Case No. 1230 of 1976;Google ScholarRep. v. Alick Nkhawasi, Conf. Case No. 2464 of 1971;Google Scholar and Chizonde v. Rep. Crim.App. No. 1977, of 1977,Google Scholar c.f. Jimmy Wiskis Nowadays Banda v. Rep., H.C., Crim.App. No. 175 of 1975 and M.S.C.A., Crim.App. No. 12 of 1979.Google Scholar

54 Rep. v. Phillipo Kumanda Banda, R.M.C., Lilongwe, Crim. Case No. 187 of 1979;Google ScholarMaster Banda v. Rep. H.C., Crim.App. No. 54 of 1980;Google ScholarAndiseni v. Rep., H.C., Crim.App. No. 41 of 1982Google Scholar and Wilfred Dilli v. The Rep., H.C., Crim.App. No. 167 of 1977.Google Scholar

55 Mbalule v. Rep., (1966) A.L.R. Mal. 272;Google ScholarRep. v. Felix Mchoma, H.C., Conf. Case No. 3008 of 1975;Google ScholarBoyden Chinamale v. Rep., H.C., Crim.App. No. 45 of 1976;Google Scholar and Rep. v. Vorster Nyondo, H.C., Conf. Case No. 124 of 1977.Google Scholar

56 Edwin Mhango v. Rep., H.C., Crim.App. No. 55 of 1977.Google Scholar

57 Sidney Daniel Nthala v. Rep., H.C., Crim.App. No. 185 of 1973Google Scholar and Wilfred Andrews Banda v. Rep., Crim.App. No. 96 of 1974.Google Scholar

58 Hill v. Rep., (supra) is one example of a leading case in which all the necessary evidence of theft by a public servant was proved by the prosecution.

59 The Penal Code (Amendment) (No. 2) Act, No. 53 of 1965Google Scholar.

60 Edwards, J. A., D.P.P. v. Katsabola, M.S.C.A., (1972) M.L.R. 69, 71.Google Scholar For other anomalies in the provision see Rep. v. Katsabola, H.C., (1971) A.L.R. Mal. 166.Google Scholar

61 See Hansard, 3rd Session, 1965, 187 where M. E. Blackwood, M.P. for Blantyre, Leader of European Representatives in Parliament and a prominent lawyer, drew the attention of the government side to the anomalies of s. 283(4), in its original form.Google Scholar

62 Penal Code (Amendment) Act No. 20 of 1973 and Hansard, 10th Session, 10 to 11 1973, 210.Google Scholar

63 Proviso (a) to s. 283(4).

64 See, for example, Velano James Thomo v. Rep., H.C., Crim.App. No. 192 of 1975Google Scholar and Msiska v. Rep., H.C. Crim.App. No. 15 of 1982.Google Scholar

65 The value of 1 MK in 1973 was about UK £0.50. At the end of 1986 1 MK was about UK £0.33.

66 Rep. v. Gustaff Herbert Thomo, H.C, Crim. Case No. 5 of 1975.Google Scholar SKINNER, C.J. was here recommending the approach adopted by East African Courts as recited by Trevelyan, J. in Kimanza v. The Rep., (H.C, Kenya), (1972) E.A. 495, 496.Google Scholar

67 In Rep. v. M'Cheswa, Conf. Case No. 1572 of 1977, for example, Mead, J.Google Scholar refused to confirm a sentence higher than the mandatory term because the trial court had not indicated “compelling reasons” for the departure from the mandatory term. c.f. George Nyirenda v. Rep., Crim.App. No. 60 of 1978,Google Scholar where JERE, J. enhanced the sentence for theft of K151.73 from the mandatory term of 2 years to 2½ years. Apart from the observation that this was a “bad case deserving more than the minimum period”, the judge did not elaborate on the compelling reasons for the enhancement. This case remains a rare and isolated example of this type of departure from the mandatory sentences. The judge made no reference to the earlier authority of M'cheswa. In Chilimsungwi v. Rep., Crim.App. No. 91 of 1978,Google Scholar on the other hand, CHATSIKA, J. felt that the mandatory term was inadequate for theft of about K158.50 from a postal matter by a Post Office worker. The compelling reasons were that the stolen money “could have been needed for all kinds of possible reasons” such as school fees, the purchase of food or some other urgent purposes”. However, “with some reluctance”, he confirmed the “inadequate” mandatory term of 2 years since learned State Advocate “did not seek to argue on the question of sentence”!

68 See, for example, Kandani v. Rep., M.S.C.A., (1971) A.L.R. Mal. 244, 245.Google Scholar

69 Namate v. Rep. M.S.C.A., Crim.App. No. 11 of 1975.Google Scholar In sentencing an employee of a company to the prevailing maximum term of 7 years for theft of K9, 709, a High Court judge had taken note of the fact that the minimum term would have been 14 years if the accused had been a public servant. The Supreme Court reduced the sentence to 6 years and ruled that the maximum term should be reserved for the worst example of the offence which this case was not. Rep. v. Dzuwa, H.C., Crim.App. No. 5 of 1975Google Scholar provides another example of the comparatively lighter sentences imposed on ordinary servants. An employee of the Import and Export Co. was sentenced to 8 years imprisonment for theft of K.25,788. The company from which he stole was principally owned by the M.D.C., and had he been an employee of this statutory corporation, as a public servant, he would have been sentenced to not less than 14 years imprisonment.

70 See Kampila v. Rep., H.C., Crim.App. No. 250 of 1982Google Scholar and Rep. v. Bamusi Mtonyo, Conf. Case No. 923 of 1976.Google Scholar

71 Thomas Mayazi v. Rep., M.S.C.A., Crim.App. No. 9 of 1985,Google Scholar applied in Rep. v. Sabuneti Chitsulo, H.C., Conf. Case No. 47 of 1985.Google Scholar

72 See ss. 15 and 346 of the Criminal Procedure and Evidence Code, Cap. 8:01, Laws of Malawi.

73 Ibid., s. 17and ss. 127–128.

74 Rep. v. Boyidi Nkhoma, H.C., Conf. Cases No. 210 and 202 of 1974.Google Scholar

75 See, for example, Khunga v. Rep., Crim. Case No. 52 of 1981,Google Scholar and Rep. v. Mwandoloma Conf. Case No. 2204 of 1976Google Scholar where MEAD, J. said: “In my view it is not the intention of the legislature that where a public servant commits a series of offences involving theft over a short period of time he should be so charged and sentenced to a cumulative sentence far in excess of the mandatory minimum sentence for the total amount he had stolen”. The same judge recommended in Michael Pangani Zulu v. Rep., Crim.App. No. 191 of 1978Google Scholar that a similar attitude should be adopted in sentencing a public servant who has asked the court to take into account other untried offences. Concurrent sentences should be imposed in such a way that the accused would not serve more than the minimum for sums admitted stolen.

76 S. 127(1) of the Criminal Procedure and Evidence Code.

77 See for example, Hubert Nkosi v. Rep., Crim.App. No. 85 of 1978;Google ScholarFixon Lazaro Ndhlovu v. Rep., Crim.App. No. 56 of 1979Google Scholar and Jonathan Nkhata v. Rep., Crim.App. No. 106 of 1979.Google Scholar

78 Skinner, C. J. in Rep. v. Mvutho, (1971) A.L.R. Mal. 128, 130.Google Scholar

79 Rep. v. Namatika (1971) A.L.R. Mal. 166.Google Scholar

80 See, for example, Rep. v. Katsabola, H.C., (1971) A.L.R. Mal. 200;Google ScholarRep. v. Regson Joshua Kqyenda, H.C. Comf. Case No. 469 of 1973;Google ScholarRep. v. Bauleni & Limbani, Comf. Case No. 2693 of 1976;Google ScholarBernard Mitambo v. Rep., M.S.C.A., Crim.App. No. 3 of 1977;Google Scholar and Mpila v. Rep., H.C. Crim.App. No. 101 of 1981.Google Scholar

81 Elliot Mulanje v. Rep., M.S.C.A., Crim.App. No. 24 of 1984.Google Scholar

82 p. 5 of transcript.

83 p. 2 of the transcript of the dissenting judgment.

84 Steven Mazaza Msika v. Rep., M.S.C.A., Crim.App. No. 30 of 1985.Google ScholarJudgment in this case was delivered on 6 August, 1986 and the Mulanje judgment was delivered on 17 01, 1986.Google Scholar

85 See, for example, Phillips, O. Hood, A First Book of English Law, 7th ed., London, 1977, 195–198.Google Scholar

86 Rep. v. Dawika Mkandawire, H.C., Comf. Case No. 2083 of 1986.Google Scholar

87 Statute Law (Miscellaneous) Amendments Act, No. 6 of 1987, s. 2.

88 Unyolo, J. in Steven Mazaza Msiska v. Rep., H.C., Misc.Appl. No. 4 of 1985.Google Scholar

89 I am indebted to G. G. Kaliwo, Counsel for Msiska, for this piece of information and for general stimulating exchanges on the law of thefts in the public service in Malawi.

90 Dickson Chilunika v. Rep., H.C. Crim.App. No. 51 of 1981.Google Scholar See also Chipala v. Rep., H.C., Crim.App. No. 7 of 1983Google Scholar and M.S.C.A. Crim.App. No. 4 of 1984; and Rep. v. Mbunama, H.C., Conf. Case No. 171 of 1986.Google Scholar

91 Maitana v. Rep., Crim.App. No. 120 of 1975Google Scholar and Tsitu v. Rep., Crim.App. No. 103 of 1982.Google Scholar

92 D.P.P. v. Katsabola, (1973) 7 M.L.R. 69, 72.Google Scholar

93 Cram, J. in R. v. Gondwe (1965) A.L.R. Mal. 247.Google Scholar

94 See R. v. Mvutho (1971) A.L.R. Mal. 129, 130Google Scholar and Rep. v. Alex Mark Chayang'ana, Conf. Case No. 792 of 1974.Google Scholar

95 Jere, J., Rep. v. Benard Mitambo, H.C. Conf. Case No. 2328 of 1976.Google Scholar

96 This is the language of Skinner, C. J. who observed in Rep. v. Katsabola, (1971) A.L.R. Mal. 200, 203Google Scholar that “the whole community would be scandalised by the showing of undue leniency” through the imposition of fines as the appropriate penalty for theft in the public service.

97 See Charles Bezani Mangila v. Rep., Crim.App. No. 17 of 1976Google Scholar and the cases cited in note 22 above. However JERE, J. in similar circumstances insisted on imposing custodial sentences in Rep. v. Gresham, Gilbert Banda, (supra) and in Rep. v. Kasalika and Chimphonia (supra).

98 See, particularly, Hansard, 3rd Session 1965, 185–186.Google Scholar

99 R. v. Sadiki, (1965) A.L.R. Mal. 577, 579.Google Scholar

100 Rep. v. Kamwendo, (1973) 7 M.L.R. 5.Google Scholar

101 Michael Pangani Zulu v. Rep., n. 75, supra.

102 Rep. v. Zimba & 6 others (1972) A.L.R. Mal. 409, 415.Google Scholar

103 Nankhuni v. Rep., (1971) A.L.R. Mal. 126,Google Scholar and Wenct Andrew Mvula v. Rep., Crim.App. No. 104 of 1974.Google Scholar

104 Rep. v. Lumbe & Sisya, Conf., Case No. 857 of 1986Google Scholar and Robert Chunga v. Rep., Crim.App. No. 214 of 1974.Google Scholar

105 See, for example, Malawi Government, Second Report of the Public Accounts Committee to the National Assembly, 03 1986, Government Printer, para. 18, p. 40 & para. 54, p. 58;Google Scholar and First Report … for the year ended 1984, pp. 258, 273 and 289.Google Scholar

106 See Wanda op. cit., pp. 88–91 and Nzunda op. cit., 145–146.Google Scholar