While refusing to release a terminally ill convict who raped a girl, Malawi President Joyce Banda went ahead to pardon her own relative who committed a similar crime.
Convict Agala Festone Kuiwenga, one of the lucky 377 prisoners Banda pardoned on July 6 2012, had his eight-year sentence enhanced by one year by the High Court in Zomba due to the gravity of the offence, a month before the President set him free.
A three-month Weekend Nation investigation has established that Kuiwenga is related to Banda and is one of the two prisoners whose pardon sparked off violent protests which claimed at least a life at Zomba Maximum Security Prison.
The other prisoner is George Allan Nyambi, a relation of Senior Chief Nyambi of Machinga, who was serving time for murder. The rioting prisoners claimed the two were favoured due to their connections to high places.
As part of Independence Day celebrations, the President used her powers as stipulated in Section 89, subsection 2 of the Constitution to grant the pardons.
But she emphatically denied pardon to 11 inmates, including one who was terminally ill.
Said Banda when announcing the pardons:Â â€œI wish to further inform the nation that I have rejected 11 applications for the pardon of inmates serving sentences for defilement. I have rejected this in line with zero tolerance against violence against women and children.
â€œOne of them has a liver problem, but we will bury him if need be because he knowingly doomed the future of a young girl who he raped repeatedly.â€
Court records show that Kuiwenga had only served three years and five months of the nine-year jail term the courts slapped him with when he was granted pardon.
The Domasi Magistrateâ€™s Court slapped Kuiwenga with an eight-year jail term after finding him guilty of raping a girl in 2008. He used to sing with the girl in a choir.
Domasi first grade magistrate Richard Padambo, who presided over the case, said in an interview on July 31 2012 the jail term was effective February 6 2009, the day he sentenced Kuiwenga.
The High Court in Zomba reviewed the case and added another year, making it nine years.
Prisons spokesperson Evance Phiri refused to specifically comment on the circumstances that led to Kuiwengaâ€™s selection for pardon and subsequent release.
But he explained that as a general ruleâ€”but not necessarily a mustâ€”for a prisoner to be considered for pardon, he or she should serve at least half of the jail term and that they should demonstrate good conduct.
Asked to explain the basis for Kuiwengaâ€™s release, Phiri said: â€œThis is a security issue. It will be difficult for you to get certain information. Talk to the Acting Chief Commissioner of Prisons.â€
But Acting Chief Commissioner of Prisons Kennedy Nkhoma said he was not ready to provide details.
The pardon process
The process of presidential pardon starts with a lower pardon committee comprising top police and prison management which proposes names to the Advisory Committee on the Granting of Pardon that the President presides over.
The advisory committee includes the Attorney General (AG) and such number of Cabinet ministers as the President may appoint, according to the Advisory Committee on the Granting of Pardon Act.
The final decision rests with the President. Both the Constitution and the Advisory Committee on the Granting of Pardon Act do not specify the criteria for granting pardons, leaving the Head of State to use discretion.
AG Ralph Kasambara corroborated this legal position after Weekend Nation asked him to explain the basis of Kuiwengaâ€™s pardon.
Kasambara said the Constitution does not stipulate any procedures that the Advisory Committee on Granting of Pardon should follow when recommending to the State President on the exercise of presidential prerogative of mercy, adding that he is not aware of any law stipulating such procedures.
â€œFor presidential pardon, there is no such rule that a prisoner should have served at least half the sentence. Otherwise, presidents would not be able to commute death sentences to life sentences as there is no half death sentence for one to serve. Of course, good conduct is one common sense reason for exercising mercy in commuting sentence.
â€œJust as very poor medical condition of a prisoner may be considered as a factor in the exercise of mercy, advanced age and tender age are also good reasons for recommending that an inmate should have his/her sentence commuted. Actually, there are myriads of reasons that the Committee looks at before making its recommendation. In other words, the categories of factors are not closed.â€
But when asked whether Kuiwenga was pardoned because he is related to the President, Kasambara said it is â€œa heinous jokeâ€ for one to allege that President Banda is in any way related to the pardoned Kuiwenga. The AG said Kuiwenga was wrongly imprisoned; hence, the release.
Describing Kuiwengaâ€™s issue as â€œa sad case of serious miscarriage of justiceâ€, the AG said the rape convict was a victim of conspiracy by those involved in the administration of justice.
He said an independent inquiry revealed a case of blackmail, extortion and corruption, adding that the details of â€œthat sad saga will soon be out as some public officers face the wrath of the law.â€
Commenting on our findings that Kuiwenga is related to the President, the AG said: â€œActually, all that talk about the State President being related to Kuiwenga is a figment of imagination of those persons hell bent on tarnishing the image of the State Presidentâ€™s administration.
â€œThe case of Kuiwenga was not brought to the attention of the Advisory Committee by the State President. It was my office that received a complaint just like that of a young man from Karonga.
â€œI brought these two cases before the committee; and it was the committee that advised the State President to exercise her prerogative of pardoning him. During the [Mutharika] administration, someone convicted of murder was pardoned by [Mutharika] after it was discovered that there was miscarriage of justice; and I also recall a case of three sisters from Machinga that were released after they had been convicted by the High Court. Those three sisters had barely served three months at Zomba Maximum Prison,â€ said Kasambara.
Presidential press secretary Steven Nhlane also said he was not aware of any relationship between Kuiwenga and the President.
When we asked him to find out from the President, Nhlane said: â€œTo begin with, do you really think it is important to go to the President just to ask her if Kuiwenga is her relative? The right thing [for you] to do is simply to prove beyond reasonable doubt from your sources that Kuiwenga is related to the President.â€
JB and Kuiwengaâ€™s relationship
Our investigations to establish Kuiwengaâ€™s background involved an undercover operation that took us to the Presidentâ€™s home village compound at Domasi between July 30 and July 31. We also visited Domasi Magistrateâ€™s Court, which first heard his case.
We also went to the High Court in Zomba, which reviewed the lower courtâ€™s decision and added a year to the initial eight-year sentence.
While inside the Banda compound, we interviewed the Presidentâ€™s family members and, among other things, learnt that the President released a vehicle to her cousin (on her motherâ€™s side) a Mr. Makupe, to pick up the freed Kuiwenga from Zomba Prison. Kuiwenga is Makupeâ€™s grandson.
Makupe and Grey Ntila (Bandaâ€™s cousin from her fatherâ€™s side), unaware that they were talking to a journalist, corroborated during conversations on two separate days that Kuiwenga is the Presidentâ€™s relative.
Our journalist camped at Nkausya Bottle Store, which is within Bandaâ€™s home at Domasi and is manned by Ntila, who said the pub belongs to his sister, Zione.
â€œFestone [Kuiwenga] is our relative. He is also a relative to Mayi Joyce Banda. Festone was here yesterday [July 29 2012]. He wore a vest and we drank some alcohol together,â€ said Ntila at the pub.
We met Makupe on our second day at the pub on July 31. Ntila introduced Makupe to us.
Said Ntila in the presence of Makupe, a retired soldier:Â â€œMr Makupe went to Zomba Maximum Prison to pick up Festone.â€
On his part, Makupe said: â€œI did my part. I always tell these [young men] to behave well.â€ He was reticent to discuss the issue further.
Makupe said he was msuweni [cousin] to the President and carries out most of her errands at her Domasi home. The interviews are on record.
Perusing court records
Records at Domasi Magistrateâ€™s Court show that Kuiwengaâ€™s case under reference number 110 of 2008 was filed on December 22 2008.
The records show that Agala Festone Kuiwenga comes from Yoyola Village, T/A Malemia in Zomba. The President also hails from the same village.
Hearing of the case started on the same day (December 22) and was concluded on February 6 2009 when Kuiwenga was slapped with eight years for rape contrary to Section 132 of the Penal Code.
Judge Godfrey Mwase of the High Court in Zomba enhanced the sentence by one year on June 14 2012. At Zomba High Court, the case file number is 365.
Weekend Nation visited Zomba High Court on August 3 to see details of Kuiwengaâ€™s rape case.
But a court clerk there said the file was returned to Domasi Magistrateâ€™s Court after the review.
The records book just showed the case number and a few comments from the judge on the enhancement of the sentence.
On 6 and 7 August, we went to Domasi Magistrateâ€™s Court in search of Kuiwengaâ€™s file, but it could not be traced.
Officials at Domasi Magistrateâ€™s Court said the file never returned from Zomba High Court.
Sketchy details of the case are that Kuiwenga raped a girl, aged around 15 at the time, at Domasi Hill along Domasi River in 2008.
Both were members of a local CCAP church choir. We also understand that Domasi Magistrateâ€™s Court visited the crime scene at some point as part of the justice process.