Jury to hear Sumbuleta sexual harassment case

Following a Thursday ruling by the High Court, former Malawi Broadcasting Corporation (MBC) director general Aubrey Sumbuleta’s abuse of office and sexual harassment case will be heard by a jury.

Sumbuleta was charged with abuse of office under Section 95 (1) of the Penal Code, indecent assault contrary to Section 137 (1) of the Penal Code and sexual harassment contrary to Section 6 of the Gender Equality Act.

On February 15 2023, Sumbuleta through his lawyer David Kanyenda asked the High Court to have the case heard by a jury when the matter convened to begin full trial.

This was after the same court on December 6 2022 dismissed Sumbuleta’s preliminary objection that the case be referred to the Chief Justice for certification as a Constitutional matter and that it be permanently stayed.

But in his arguments on the application for the case to be heard by a jury, Sumbuleta argued that Section 294 (1) of the Criminal Procedure and Evidence Code is clear that all trials in the High Court must be by jury subject to the relevant exceptions.

He argued that offences such as sexual harassment, abuse of office and indecent assault are not exceptions gazetted by the Minister under Section 294 (2) of the Criminal Procedure and Evidence Code.

Therefore, Sumbuleta argued that proceeding with trial without jury would be illegal as a matter of law and not procedure.

But the State argued in their response that trial by jury is not a fundamental rule but merely procedural in nature.

As such, the State argued that Sumbuleta’s right to a fair trial and other constitutionally guaranteed rights will not be violated if the case proceeds without a jury.

The State further argued that trials in Malawi in the democratic dispensation have been conducted without juries as a matter of good practice and as a cost-cutting measure; hence, Sumbuleta’s application was made in bad faith and lacks merit.

But in her ruling on Thursday, High Court Judge Ruth Chinangwa observed that the matter has to be heard before a jury on the basis that Sumbuleta’s offences are not exempted from a trial without a jury.

The judge also highlighted that the law on trial with or without a jury be revisited since some serious crimes are heard by a single judge which makes it interesting.

Reads part of the ruling: “It is interesting to note that serious crimes such as murder, offences under Money Laundering, Proceeds of Serious Crimes and Terrorist Financing and Financial Crimes Act have been left to a single Judge in the High Court to determine without the assistance of the jury.

“This court is of the view that the law on trial with or without a jury should be revisited once again.”

Chinangwa further observed that the court’s view is that if serious offences are triable without a jury then all offences which are triable in the magistrate’s court but at the discretion of the Director of Public Prosecutions are triable in the High Court.

Meanwhile, the High Court will convene tomorrow for further directions.

In a telephone interview yesterday, Kanyenda said they are satisfied with the ruling and that they are ready to appear in court tomorrow to get further directions and conduct of the case.

“The ruling is legally correct because trials with juries are very much part of our criminal and justice system. So, the judge has initially agreed with us that our client should be heard before her and a 12-member jury,” he said.

Senior State advocate Mathews Gamazi, in a separate telephone interview, said they will comply with the ruling since it is a binding decision.

Sumbuleta was arrested after the Malawi Human Rights Commission carried out investigations into alleged reports of sexual harassment of female employees at MBC.

Sexual harassment attracts a fine of K1 million and five years imprisonment.