Cashgaters dodge jail

 At least five Cashgate suspects have dodged imprisonment after paying back the money they stole while three others are negotiating with the State

to reimburse the funds and be discharged.

In a brief interview last week, Ministry of Justice spokesperson Pirirani Masanjala confirmed the bargains but refused to divulge more information.

Said Masanjala: “The office of the DPP has indeed concluded some cases and has sorted others through settlement.”

Those freed after paying back the money are Kettle Kamwangala, Fatch Chungano, Cecilia Ng’ambi, Sympathy Chisale and Ndaona Satema, according to official documents sourced from the Ministry of Justice.

Kamwangala was freed in May last year after paying back K16.7 million allegedly defrauded from government and she was answering two charges of theft, contrary to Section 278 of the Penal Code and money laundering contrary to Section 35 of the Money Laundering Proceeds of Serious Crime and Terrorist Financing Act.

The other four, Chungano, Ng’ambi, Chisale and Satema were discharged from the K2.4 billion case involving former budget director Paul Mphwiyo and others in August last year after also paying back with interest a combined total of K120 million, according to the documents.

Two lawyers for the suspects Robert Nthewa and Manuel Theu, while confirming the arrangement said they were constrained to share any information with the press at this stage.

But in separate interviews last month, the Malawi Law Society (MLS), doubts if the law allows discontinuance of a case in plea bargaining arrangements.

MLS honorary secretary Chrispin Ngunde, in an interview, pointed out that except for the lack of legal backing on the element of discontinuance, there is nothing wrong with plea bargaining conducted within the parameters set by Section 252 A of the Criminal Procedure and Evidence Code (CP & EC).

He added that the purpose of plea bargaining is to work out a mutually satisfactory disposition of the case subject to court approval.

Said Ngunde: “Whether or not to engage in plea bargaining depends on the parties, [but] prosecution cannot be precluded from engaging in plea bargaining because previous similar cases were concluded without considering the option of engaging in a plea bargaining. [However] each case is treated on its peculiar facts.”

Commenting on the issue private practice lawyer Jai Banda, an expert in anti-money-laundering law, said the DPP must have had justifiable and legal reasons for the steps taken, but agreed with Ngunde that paying back the money on its own does not justify discontinuance of a case.

He said: “If a precedent is set that when one pays back money then there is no case against him then this would be a bad precedent which can be used in future in favour of those who transgress the law. They would do so knowing if caught they would always ensure money is paid back and avoid jail.”

Last month the then Parliamentary Legal Affairs Committee (LAC) chairperson Peter Dimba said his committee would summon the new Director of Public Prosecutions (DPP) Masauko Chamkakala to answer what he described as “selective justice” for prosecuting and convicting some suspects and freeing others after restituting the money they stole.

The Parliamentary Appointments Committee confirmed Chamkakala in his new position on January 30 2022, but he is yet to appear before LAC.

Court documents we have seen show that the State gave four reasons for discontinuing the Kamwangala’s case, namely that the accused had made a full restitution of the money she was accused to have defrauded government, which was paid together with interest calculated at the Reserve Bank of Malawi rate as well as that the accused had now become a State witness in another equally important case.

The State also indicated that it is trying as much as possible to recover stolen money and that restitution was a balancing act done in the interest of taxpayers.

A copy of a report on reasons for discontinuing th Kamwangala case which the office of the DPP filed with the High Court in Lilongwe, showed the former defendant had initially filed for an application before the court alleging that her case was supposed to be tried by a jury based on Section 294 of the CP&EC which states that all criminal trials before the High Court shall be by jury and not a single judge.

This was after the State had already paraded witnesses against the accused and the court was about to make a ruling on whether the suspect had a case to answer or not.

The State objected to the trial by jury citing Section 294(2) of CPA arguing that the offences she was facing are tried by a judge sitting alone.

Kamwangala then entered into a plea bargaining with the State to restitute the money she was accused to have stolen.

Attorney General Thabo Chakaka-Nyirenda said he does not have details of the cases in question, adding that he was not party to the decision to discontinue the cases.

Said Chakaka-Nyirenda: “I understand discontinuous of cases has always been there in the law, namely the Criminal Procedure and Evidence Code, that the power to discontinue criminal cases is exercised by the DPP and not by the AG.”

According to him there is a danger that the public might look at it as selective justice as justice must not only be done but must be seen to be done.

By November 2015, there were 124 Cashgate cases before the special Cashgate prosecutor Kamudoni Nyasulu, the DPP and the ACB—the main prosecuting agencies.

By November 2020, some 94 suspects had entered trial; 40 were convicted and trials for 19 suspects were close to finalisation, representing a near completion rate of 64 percent.

Out of the 40 convictions, ACB alongside Nyasulu secured 22 convictions and no acquittal.

The suspects investigated and convicted included 36 public officers from 10 government ministries, departments and agencies as well as 122 private sector companies, including three legal firms.

The State recovered K63 million from first Cashgate convict Triza Senzani (now deceased) and a vehicle from Victor Sithole. The State also recovered a vehicle valued at K7 million and K18 million from suspects Luke Kasamba and Maxwell Namata (now late).

The State also applied for confiscation of K112 400 000, $31 850, 122 200 South African rands, a Toyota Vitz, K750 000, K1 400 000 plus a house on plot number 25/LC/87 and Whispers Bar at Area 25 belonging to Sithole.

Further, the State also applied for confiscation of properties belonging to Wyson Zinyemba Soko who allegedly stole K40 million. The targeted properties included a Mercedes Benz and a Toyota Fortuner