Muluzi v Attorney General (Constitutional Appeal Case 25 of 2018) [2022] MWSC 17 (17 May 2022)

_: REPUBLIC OF MALAWI IN THE SUPREME COURT OF APPEAL 5 MSCA CONSTITUTIONAL APPEAL CASE NO. 25 OF 2018 (Being “onstitutional Case No. 1 of 2011) BETWEEN 10 DR ELSON BAKILI MULUZL,. .....c..ccccecenececscscsccsencnenesenenestes beeceseueeas APPEL. ANT ATTORNEY GENERAL 0. ec..-cecetcecucssteresenereneneneses beta cacueseseseneceaeues RESPON ENT 15 CORAM: THE HON. THE CHIEF JUSTICE A. K. C. NYIRENDA SC, JA THE HON. JUSTICE E. B. TWEA THE HON. JUSTICE R. R. MZIIKAMANDA SC, JA THE HON. JUSTICE A. C. CHIPETA 20 THE HON. JUSTIC: L. P. CHIKOPA SC, JA THE HON. JUSTICE F. E. KAPANDA SC, JA THE HON. JUSTICE A. D. KAMANGA SC, JA 10 15 20 Mr, T. Chokotho « “ Counsel, Counsel for the Appellant Dr. S. Kayuni, Mr. Maulidi and Frank Matola, Counsel for the Respondent Ms C Masiyano, Court Clerk Dates of Hearing: 29 July 202°) Date of Judgment: 17 May 2022 ANNOTATIONS Cases cited Malawi The Attorney General v Hon. F: iday Anderson Jumbe and another [2014] MLR 332 Nseula v Attorney-General and another [1999] MLR 313 Blantyre Water Board and others v Malawi Housing Corporation, [2007] MLR 48 (SCA) Zimbabwe State v Chogugudza (1996) (1) ZLR 28 South Africa State v Mbatha 11996] ZACC | State Bhulwana CCT 12/95 at pages 200-201 United Kingdom Woolmington v Director of Public Prosecution [1935] AC 462 Scaggel v Attorney General [1997] 4 LRC 98 Attorney General of Hong Koz v Lee Kwong Kut [1993] AC 951 2 10 15 20 Webster vs R [2010] EWC ° Crim 2819 Miller v. Minister of Pensions [1947] 2 All FR. 372 Brown v. Stott 120031 1 A. C. 681 Rv Carr-Briant [1943 ]1 5B 607 Xv United Kingdom App 5124/71(1972) 42 Collection of Decisions 135 Ghaidan v Godin-Mendoza [2004] 3 WLR. 113 R v Hunt [1987] A. C. 352 Sheldrake v DPP [2003] 2 Cr. App. R. 206 R. v DPP Ex p. Kebeline [:000] 1 Cr. App. R. 275 Rv Lambert [2002] 2 A. C . 545 Canada Regina v Oakes 1968] 1 & CR 103 R v White [1988] 2 SCR United States of Americ: Leary vs United States, 395 U. S. 6 (1969) Kenya Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2018] eKLR Commissioner of Income Tax v Menon, [1985] KLR 104; [1976-1985] EA 67 European Court of Human Right Janosevic v. Sweden (2004) 38 E. H. R. R. 473 Salabiaku v France (1988) 13 EHRR 379 The Constitution of the |< epublic of Malawi 10 15 20 25 Statutes and Rules Corrupt Practices Act Penal Code Criminal Procedure and Evidence Code Supreme Court of Appeal Act Courts (High Court) (Civil Procedure) Rules, 2017 Supreme Court of Appeal Rules JUDGMENT Judgment delivered |.y The Honourable the Chief Justice A. K. C. Nyirerd: , SC, JA I have had the opportunity to read in advance the judgment of my Lord Justice of Appeal F. E. Kapanda SC about to be delivered in this matter with which I agree. I respectfully adopt all his reasoning as mine and | dismiss the appeal. I abide by the order for costs contained in the aforesaid judgment. Further, I agree with the orders proposed by Justice of Appeal F. E. Kapanda SC. I need not repeat the facts of the case which are fully set out in his judgment. Judgment delivered by Justice E. B. Twea, SC, JA: I have had the opperiunity to read in advance the judgment of my Lord Justice of Appeal F. E. Kapanda SC about to be delivered in this matter with which I agree. I respectfully adopt all his reasoning as mine an‘ I also dismiss the appeal.. Further, I agree with the orders proposed by Justice of Appeal F. E. Kapanda SC. 10 15 20 25 Judgment deliverec’ by Justice R. R. Mzikamanda, SC, JA; I have had the opportunity to read in advance the judgment of my Lord Justice of Appeal F. E. Kapanda SC about io be delivered in this matter with which I agree. I respectfully adopt all his reasoning as mine ard I also dismiss the appeal. Judgment delivered by Justice A. C. Chipeta , SC, JA: I have had the oppe;tunity to read in advance the judgment of my Lord justice of Appeal F. E. Kapanda SC about io be delivered in this matter with which I agree. I respectfully adopt all his reasoning as mine ar:d I also dismiss the appeal. Further, I agree with the orde: s proposed by Justice of Appeal F-E. Kap: ida SC. Judgment delivere: by Justice L. P. Chikopa SC,JA, [have read in advan: « the judgment of My Lord Justice of Appeal F. E. Kapar da SC to be delivered in this matter. I agree with His Lordship’s conclusion that the appeal herein be dismissed. | also agree with His Lord hip as to costs. It does appear however that there mighi be slight differences in the reasoning leading to such conclusions. It is for that reason that I have decided to express the _ following sentiments. For purposes only of clarity and context let me restate that by Originating Motion, the Appellant sought the High Court’s determination on the constitutionality of section 32 (2) (b) and (c) of the Corrupt Practices Act[Cap 7:04 of the Laws of Malawi]. The Constitutioual provisions against which the above statutory provision are to be examined are section 42 (2) (1) (iii) and section 44 (1) and (2). Accordingly, through the said Originating Motion the Appellant. sought the following reliefs: a. A declaration that section 32 (2) (b) and (c) of the Corrupt Practices Act reverses the onus of proof in respect «f an essential element of the offence created; 10 15 20 25 b. A declarat’ n that the said section 32 (2) (b) and (c) of the Corrup’ Practices Act places a legal burden of pr: of on the accused; c. A declaration that the said section 32 (2) (b) and (c) of the Corrupt Practices Act infringes the presumption of innocence and the right to remain silent; d. A declaration that the said section 32 (2) (b) and (c) of the Corrupt Practices Act does not pass the limitation tests in Section 44 (1) and (2) of the Constitution; and €. A declaration that the reverse onus created by the said section 32 (2) (b) and (c) of the Corrupt Practices Act should be read as imposing an evidential burden of proof on the accused; The High Court, s:tting as a Constitutional Court, on 21 February 2018 dismissed the motion. It held that section 3. (2) (b) and (c) of the Corrupt Practices Act was in tandem with the Republican Constitution and t’ at it did not in any way fall afoul of sections 42 (2)(f)(@'i) and 44 (1) and (2) of the Constitution. “he Appellant has now appealed against the said jud::ment. He filed seven grounds of appeal. They have been listed in Justice of Appeal Kapanda SC’s judgment. And because this «-pinion is only a slight departure from that of His Lordsl-ip Kapanda SC’s I will not belabour the issues. For it is obvious to me on the arguments and law before this and the Court below that at the heart of this appeal is the constitutionality of section 32 (2) (b) and (c) of the Corrupt Practices “ict. Specifically, whether in relation to offences createc thereunder the section reverses the burde:i of proof and infringes on an accused’s rights to be prc sumed innocent and to silence as provide for in section 42(2)(a), (c) and (f)(iii) of the Constitu:ion of the Republic of Malawi. | | | There might be various ways of determining the appeal. my best way forward is to first look at the context in which the burden of proof and the rights to silence and to be presumed innocent operate, second at what our law currently says about burden of proof, presumption of innocence and the right to silence. And thirdly at what the offences in section 32 (2) (b) and (c) of the Corrupt Practices Act are exactly all about and lastly whether on a true and correct understanding of the said section it is inaeed unconstitutional for infringing constitutional provisions about the burden of proof, the presumption of innocence and the right to silence. 10 15 20 25 In that rega: ‘, it is of cardinal importance that mention be made of ‘he following constitutional provisions. First is secticn 9 thereof. It provides that: ‘the Judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws in accordance with this Constitution in a1 independent and impartial manner with regard only to legally relevant facts and the prescriytions of the law’ [emphasis supplied] Applied to the instant case the conclusion is obvious in my view. This appeal, like all others, must be determine i on its own facts as found and the applicable law. The !aw must be understood in a wider contest to include inter alia the common law, legislation, the Constitution and indeed case law. The second ; re sections 20 [1] and 4 of the Constitution read togetl.er. The latter entitles all the peoples of N alawi to the equal protection of the Constitution and |:..s made under it [emphasis supplied]. The former | cads: ‘[i] discrimination of persons in any form is prohibited and all persons are under any law guaranteed ¢ (ual and effective protection against discrimination on :rounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability property, birth or othe: status or condition.” In my understanding the above clauses support the proposition that similarly situated persons, including where applicable accused persons, should be treated equally. None should be more advantaged or disadvantaged, as the case may be, than the other. The third is section 44 of the Constitution. Particularly subsections [}} and [2]. They read; [1] no restrictions or limitations maybe placed on the exercise of any rights and freedoms provided for in this Constitution other those prescribed by the law, which are reasonable, recognised by internationa’ human rights standards and are necessary in an open and democratic society; 10 15 20 25 [2] laws; escribing restrictions or limitations shall not negate thc =ssential content of the right or freedom i . question and shall be of general application’. On the face of it it appears that all rights and freedoms under our Constitution are limitable. Except that whatever limitations are imposed must meet the criteria set out in section 44[2] and [3] aboveme: tioned. In Maggie Kaunda v R Criminal Appeal Nu nber 8 Of 2001 High Court of Malawi, }4zuzu Registry[unreported] I, while sitting as a High Court opined that a limitation must meet/comply with the totality of the four criteria set out in section 44[1] before it can be considered a legal and effective limitation. It is a view J still subscribe to. Lastly I consider section 45. The side note talks of derogation and public emergency. It is a long section. I will not therefore quote it in full. Suffice it to say that the essence thereof, especially in subsectio::s 1 and 2 is that it allows derogation from the rights provided for in the Constitution in a state of mergency. Derogation is however not permissible with -espect to: [i] the rig it to life; {ii] the pr +hibition of torture and cruel, inhuman or degrading tre: tment or punishment; [iii] the p-ohibition of genocide; [iv] the m ohibition of slavery, the slave trade and slave like pract:ces; [v] the prchibition of imprisonment for failure to meet contractva! obligation [vi] the y:ohibition on retrospective criminalisation and the retrospective imposition of greater penalties for criminal acts; [vii] the right to equality and recognition before the law; [viii] the right to freedom of conscience, belief, thought and religion and to academic freedom; or fix] the right to habeas corpus. I did ask myself some questions about the immediately above. For instance, is limitation as used in section 44 equal to derogation as used in section 45? Is, or should the fact that some rights are expressl\ exempted from derogation in section 45 while there is no such provision in section 44 be of any significance? 10 15 20 25 Whatever an: ‘ver one chooses to give to the above questions I have nc ‘toubt firstly that limitations cannot be eq: «i to derogations. Their use and in separate sections at{ at, attests to that fact in my view. More t!:an that Black’s Law Dictionary 6th edition refers to a ‘imitation as inter alia some restriction in duration, extent or scope. Applied to rights and freedcms I am of the view that a limitation shc wld refer to a restriction in duration, extent and scope of right and freedoms. A derogation on the other hand refers, according to very same Black’s Law Dictionary, to a partial repeal or abo'ition of a law which limits its scope or impairs its utility and force. Applied to this case and in the Malawi context it would, in my view, refer to a partia! repeal or abolition of rights and freedom: following the declaration of a state of emergency. By definition and in action a limitation an. a derogation are not one and the same thing in my hun. dle view. Secondly it i: worth noting that while derogation is allowable under s-ction 45 of the Constitution it is express prohibited in relation to, inter alia, the right to equalit before the law. It is not an accident in n y humble view. It seeks to emphasise, in case there aic some doubting Thomases about, the eq: ality of all persons before the law. That the law provide: protection to all and sundry without exce tion. That all similarly situated persons will be treated } equal fashion. Coming bac! to the issues before us namely the burden of proof, the presumption of innocence and the right to silence it is fair to say that our law provides for them from various perspectives. That of the « »mmon law, statutory law, constitutional law and fin: ‘ly case law both local and international. And talking about burden of proof perhaps the most famous mention thereof is in the case of V: colmington v DPP [1935] AC 462 where Viscount Sa:ikey, LC said at pages 481- 2: “but the prosecution must prove the guilt of the prisoner........ there is no such burden laid on ihe prisoner to prove his innocence and it is sufficient for him to raise a doubt as to satisfy the jury of his innocence. Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as ico the defence of insanity exception... No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common Law of England and no attempt to wl ittle it down can be entertained... 10 15 20 a5 Back he +e there have also been eloquent references to the bur 2 of proof. One of my all-time favourit: . is in Mogra v R where Chipeta J [as he then was] sai: . ‘under section 187[1] the Criminal Procedure and Evidence Code and from countless decided cases, including Woolmington v DPP[ supra] as well as from learned authors of texts on criminal procedu: « and evidence, it is clearly cardinal that in general the “egal burden to prove the guilt of the accu::ed rests with and never leaves the prosecution througho:1t a case, and that the standard of proof to be attained does not get any lower than that of beyond reasonable doubt. Further under our Constitution section 42[2][f] [iti] every accused person is presumed innocent and does not bear any duty in the least to prove such innocence.... An accused need do no more than raise, if he opts to fight he allegation against him, some reasonable doubt abort his guilt. It is in fact not even obligato:y for him to give any evidence in his defence. Thus even doubts solely arising from the prosecu! on evidence itself are sufficient to free him from the \ oke of the charges even without him utte ing a word let alone doubts arising from the defence e: !dence or testimony. It is clearly the Jaw : hat reasonable doubts in a criminal case, whether arisir:: from the prosecution evidence, or from - xe defence evidence or from both sides, must be resolv: d in favour of the accused.’ The big ‘ake away from the above cases is obviously the fact that the burden of proof in criminal cases lies on the State to prove its case beyond reasonable doubt. More importantly in my view is the fact ‘hat an accused is not obliged to say anything in their '¢fence which is in tandem with section - 2[2][f]{iii] of our Constitution. That when an accused «tually speaks in their defence it is not to prove their innocence. It is only to raise doubt as to the’: guilt seeing as the obligation is always or the State to prove their guilt beyond reasonable doub‘. There are also statutory provisions regarding the burden of proof, Section 187[1] of the Criminal Procedure and Evidence Code is an example. It provides: ‘the burden of proving any particular fact lies on the person who wishes the court or jury, to believe its existecce, unless it is provided by any written law that the proof of such fact shall lie on any particular person. Provided that subject to any express provision to the contrary in any written law the burden of proving that a person who is accused of an offence is guil:y of that offence lies upon the prosecy ion.’ 10 10 15 20 25 Our Constitution delivers r >ch the same message. Section 42 (2) (f) (iii) thereofis i the following terms: “Rvery person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right— (f) as an accused pe~son, to a fair trial, which shall include the right— (iii) to be presunied innocent and to remain silent during plea proceedings or trial and not to testify during trial...” There is also what are called the Judges Rules. They are to the effect that an accused shall not be compelled to say anything about an accusation against them. But that where they cecide to do so they should be warned that whatever they say might be used against them in a cour: of law. Proceeding on the above it » a fact that our criminal law guarantees an accused the 1 ht to silence, the presumption of innocer.-e and the fact that the burden of proof will always be w th the State to prove its case beyond reas: able doubt. This guarantee is, in terms of sections 20| | and 4 of the Constitution, applicable to atl accused persons without exception unless one succi ssfully argues that such rights have been successfullyMawfully limited in terms of section 44[1] and [2] of the Constitution or similarly derogated from under section 45 above-mentioned. | would think however that because ther: is no mention of a state of emergency in this case the question of a derogation or derogations coes not and cannot arise. The Appellant’s argument. As I understand it, is that section 32[2][b] and [c] is uiconstitutional for infringing his right to be presumed innocent, his right to silence and transferring the burden on the State to prove him guilty of the offences created under section 32[2][b] and {c} to him. in his view, the said section oblige s him on the pain of being found guilty to say something in his defence. . It also does not presume tim innocent hence its requirement that he says something in his defence and lastly that the effect of the above requirements is to oblige him to prove himsely innocent once it is determined that he is either living a certain lifestyle or has in his custody a ce: tain amount of assets. The Respondent on the ot!-cr hand and again as we understand their argument, seers to agree that section 32[2][b] and [c] heve the effect of limiting the Appellant’s right to be pres) med innocent, 11 10 15 20 25 to silence and reversi 2 the State’s obligation to prove their allegations beyo: ! doubt. It however cites section 44 (1) an | 44 (2) of the Constitution and contends that the rights i: section 42[2][f] [iii] are capable of limita ion. It further contends that the said rights have in the instant case been properly/lawfully lim'ted and cannot therefore be unconstitutional as argued by the Appellant or at all. Is section 32 (2) (b) ard (c) of the Corrupt Practices Act unconstitutional for :eversing the burden of proof, infringing on the rights to silence and to be presumed innocent? In esking the foregoing question I am proceeding on the basis that the section can be unconstitutional as conceived i.e. on the face of it or by w: y of placing unjustifiable limitations on constitutional 1 ghts. The starting point sh-uld in my view be to restate what we have said above courtesy of section 9 of the Constitution :.amely that cases are decided on the basis of legally relevant facts and prescriptions of the |: »v. In the instant case the questions then become what xactly does section 32 of the CPA exact v provide for? What does section 42 (2) (f) (iii) of tl-e Constitution say? Does section 32(2)(*) and (c) on its true construction and understandir fall afoul of the Constitution specific: ly section 42[2][f] [iii]? Section 32 of the Co: upt Practices Act provides as follows: “(1) The Director, th Deputy Director or any officer of the Bureau authorized in writing by the Director may investigate any public officer where there are reasonable ground: to believe that such public officer— (a) maintains a standard of living above that which is commensurate with his present or past official emoluments or other known sources of income; (b) is in contro! or possession of pecuniary resources or property disproportionate to his present or past official emoluments or other known sources of income; or (c) is in receipt direcily or indirectly of the benefit of any services which hc may reasonably be suspected of having 1 cceived corruptly or in circumstances which amount to an offence under this Act. (2) Any public offic: r who, after due investigation carried out under the provisions of subsection (1), is found to— 12 10 15 20 25 (a} maintain a: wdard of living above that which is commensurate wit! ‘is present or past official emoluments o1: »ther known sources of income; (b) be in contre} or possession of pecuniary resources or property disproportionate to his present or past official emoluments or other known sources of income; or (c) be in receiy: directly or indirectly of the benefit of any services wlich he may reasonably be suspected of heving received corruptly or in circumstances which amount to an offence under this Act, shall, unless he gives a reasonable explanation, be charged with having or having had under his control or in his possession pecuniary resources or property reasonably suspected of having been corruptly scquired and, unless he gives a satisfactory explanation to the court as to how else he was able to maintain such a standard of living, or such pecuniary resources or property came under his cont:s! or his possession, or he came to enjoy the benefits o/ such services, he shall be guilty of an off race. (3) In this section (a) “official en »iuments” includes a pension, gratuity or other termina: benefits; (b) “public offi-er” includes any person who has held office as a public officer on or after 6th July, 1964.” The marginai 1-0te to section 32 describes the offence thereunder as I ossession of Unexplained Property. This, in so far as we understand the English language, should be differentiated from the mere possessior: of property no matter its quantity. The section is triggered by any one, two or all of the following three things. A public officer maintaining a standard cf living beyond that which is commensurate with their present or past official emoluments or other known means of income, being in contro! or possession of pecuniary resources or property disproportionate to their present or past official cmoluments or other known means of income and thirdly being in receipt of benefit of any services that raise the suspicion that it has been corruptly received or in circumstances which amount to an offence under the Corrupt Practices Act. Whenever and however such suspicion arises the ACB, on the written authority of its Director[same as Director General?] may investigate such suspicion to determine whether an offence under section 32 might have committed. And if upon the investigations the ACB is 13 10 15 20 25 convinc: * that their suspicions are well founded, they will bri ; charges against the suspected public o' icer. the suspected officer will then be guilty as char; :d, of course after due process, unless h: gives a satisfactory explanation to the court hearing t!-eir case about the innocence of their pos:.ession and/or control of property and their high standard of living. Looking :t section 32 in the light of the discussion about presu: :ption of innocence, the right to silence aid the burden of proof the arguments proffered for anc against its constitutionality the law and the applicable facts I am have no doubt that the said section is on a normal reading and understanding thereof not unconstitutional as alleged or at all. the section does not place any legal burden ¢n the Appellant to prove his innocence. it does not compel him to say anything in his defence. }t does not interfere with the presumption of innocenc... The references to satisfactory explanations notwithstanding it still remains the duty of the State/the prosecution to prove its case against t’« accused beyond reasonable doubt. The State therefo: « has, under both section 32 (2) (b) and (_ } the State has, inter alia, to establish beyond reasonabl. doubt that the accused is [a] “in control c° possession of pecuniary resources or property and [b] t':at the same are disproportionate to his pe. t, present official emoluments or other known sources cf income’, It must, as the case maybe, | rove beyond doubt the suspect is indeed living a standa ¢ of life not commensurate with his earni «gs past or present or other known income. Meaning, as | understand the section and our criminal jaw, that if the State is incapable of providing such or that there is doubt whether such facts havc been proven beyond doubt or not such doubt will be :2solved in favour of the accused and an acquittal will follow. True the section talks of an accused having to give a satisfactory explanation upon certain facts being proven. But the explanation is not in my opinion obligatory. It still is up to the accused _ whether to say something or exercise their right to silence. And where they say something it is not to prove their innocence. it is, at the most, to cast doubt on the State’s case in the manner spoken of by Chipeta J.[as he then was] in Mogra v R. The accused wil] not be guilty because they did not give an explanation. They will be guilty because the court trial court having looked at the proven facts and law before it has come to the conclusion that tle same prove beyond reasonable doubt that the accused was living a standard pf life beyond their known past or present income or whether ihey had under their control assets or property not com: sensurate to such income. 14 10 A: -ordingly, section 32 (2) (b) and (c) of the Corrupt Pract’ -es Act does not on the face of it create a: verse onus provision in respect of legal burden of proc . Neither does it oblige the accused to sa’ something in their defence or infringe their right to b: presumed innocent. the section is not on its face unconstitutional. Is ;ould also say that in my humble opinion section 44[1] ad [2] of the Constitution is not engaged in this case for the simple reason that section 32(2)(a) aid (c) do not place any limitations on section 42[2][f][iii] of the Constitution. I would in the circumstances alst 15 10 45 20 25 Kapanda £"*, JA: INTRODUCTION This is an apseal against the judgment of the Court below sitting as a onstitutional panel delivered on 21 February 2018. The Appellant is answering corruption rela.ed charges before the High Court. By originating motion, the Appellant sought the High Court’s determination of the constitution:lity of section 32 (2) (c) of the Corrupt Practices Act. The Constitutional provisions against which the statutory provisions were examined were section 42 (2) (f) (iii) and section 44 (2) and (3). “he Appellant through the Originating Motion sought the following declarations: a. A de«laration that section 32 (2) (b) and (c) of the Corrupt P: actices Act reverses the onus of pi -of in respect of an essential element of the offence cre: ‘ed; A de -laration that the said section 32 (2) (b) and (c) of the ( orrupt Practices Act places a lega! burden of proof on the accused; A declaration that the said section 32 (2) (b) and (c) of the Corrupt Practices Act infringes the ;.rescription of innocence and the right to remain silent; A de-laration that the said section 32 (2) (b) and (c) of the Corrupt Practices Act does not pass ‘he limitation tests in Section 44 (2) and (3) of the Consiitution, A dclaration that the reverse onus created by the said seciion 32 (2) (b) and (c) of the Corrupt Practices Act should be read as imposing an evidential burden of proof on the aceused; and A declaration that the reverse onus created by the said section 32 (2) (b) and (c) of the Con itpt Practices Act should be read as imposing an evidential burden of proof on the accused, The High Court, sitting as a constitutional panel, dismissed the app]:cation holding that section 32 (2) (c) of th Corrupt Practices Act was in tandem with the Republican Constitution and that it did 16 10 15 20 25 not in: +y way fall afoul to section 42 (2) (f) (iii) and section "+ (2) and (3) of the Constitution. The Ay ,ellant now appeals against the whole of the said judgn nt. FACTUAL BACKGROUND In 2006 the Appellant was charged in the High Court with 15 counts of corruption, fraud and theft by public servant under the Corrupt Practices Act and the Penal Code. In the course of the trial, Appell.nt sought to challenge the constitutionality of section 32 (2) (b) and (c) of the Corrupt Practic: s Act. Kamwambe J., as he was then, presiding, dete: mined that the challenge raised a constiti:tional question and directed the Appellant to seek certification from the Chief Justice that the ma::er be determined as such. Appellant sought and obtair.-d certification to file Originating Summ. sas to resolve the constitutional question. After 2 full hearing, the High Court, sitting in a constitutional :satter, dismissed applicant’s suit, finding section 32 (2) (b) and (c) of the Corrupt Practices Act : onstitutional and declaring that it did no: infringe the right to a fair trial or the right to remain silent under section 42 of the Constitution. The Court below also found that the provision did not require an accused to disprove an esse “tial element of the offence created. The Court below a’ :o declared that the provision was a reasciable limitation of the presumption of innocence anc that it imposed an evidential as contras:ed with a legal burden on an accused to rebut the reve-se burden of proof on balance of probabilities. THE GROUNDS OF APPEAL The Aj ;vellant filed notice and grounds of appeal. The following are the grounds of appeal: 1. The lower Court (sic) erred in law in holding that Counsel must desist from over relying on case law and statutes from other Commonwealth jurisdictions on the basis that the wording of those constitutions are similar to ours and thet the test is not similarity but rather comparability when in fact similarity does make case law and statutes in question comparable; 17 10 15 20 25 30 . The lower Cow (sic) erred in law by holding that section 32 (2) (b) anc (c) of the Corrupt Practices Act dies not place a legal burden of proof on the accused and therefore violates the accused’s ri::ht to be presumed innocent and the right to remain sile1:t under section 42 (2) (f) Git) of the Constitution; . The lower Cou (sic) erred in law by holding that it was bound by the decision of the Supreme Court of Appeal in The Attorney General v Hon. Friday Anderson Jumbe and another [2014] MLR 332 when the matters in the case in question are different from matters in the ¢:esent Court and by failing to distinguish the matter in question from the present one; . The lower Cow (sic) erred in law by ignoring the applicant’s oral subn .ssions; . The lower Cou. (sic) erred in law by holding that the limitation in secti : 32 (2) (c) of the Corrupt Practic’s Act is reasonable in an open and democratic dispens::tion prevailing in the country esp: cially in view of the Court’s finding that the accused wi!l have to make an informed decision of whether or not to exercise his right to remain silent; . The lower Cow: (sic) erred in law by failing to consider what constitute: actus reus for the offence in section 32 (2) (b) and (c) of the Corrupt Practices Act and whether the only logical conclusion from such actus reus is corrupt practices; and . The lower Court (sic) erred in law by failing to consider that section 32 (2) (c) of the Corrupt Practices Act lowers the standard of proof [to] that [of] a balance of probabilities and is therefore unreasonable, not recognized by International Human Rights standards and necessary in an open and democratic society and therefore unconstitutional. 18 10 Is 20 25 ISSUES FOR D "TERMINATION What are the issu: s that arise and fall to be decided in the appeal under convideration by this Court? As this Court understands it, the questions raised by the appeal are as follows: Upon analysing the opposing arguments presented by the parties in their oral and written submissions, we ‘ind that the following issues fall for determination, namely; (a) Wheti.er proper procedure of referring a matter to a constitutional panel was followed? (b) Whether section 32 (2) (b) and (c) of the Corrupt Practices Act reverses the onus of proof :n respect of an essential element of the offence created t] creby and places a legal or evicential burden of proof on an accused person? (c) Depei.ding on the answers to the second (2) question, the fol: owing question may or may 1.1 arise: a, &f it reverses the burden of proof, does section 32 (2) (b) and (c) impose imitations on the right to be presumed innocent? b. Ifit does, is the limitational constitutional? It is now necessary that this Court should look at the arguments that have been raised by the parties in response to th. se questions. We shall start with the Appellants’ argi:nents then move on to deliberate those put forward by the Respondents. THE PARTIES ARGUMENTS The Appellant’: The Appellant starts by submitting that the constitutional questions for the Court’s determination are as follows: 1. Whether or not section 32 (2) (b) and (c) of the Corrupt Practices Act reverses the onus of proof in respect of an essential element of the offence created thereby; 19 10 15 20 25 30 ae fit does, whether or not the said section places a legal ~ evidential burden of proof 1 an accused person, 3. ifthe section does impose legal burden of proof on an accused person, whether or not the same does not infringe the presumption of innocenc« and the right to silence ander section 42 (2) (f) Gii) of the Constitution; 4. If the reverse onus clause created by section 32 (2) (b) and (c) of the Corrupt Practices Act infringes the constitutional presumption of innocnce and the right to silence, whether or not the infringement passes the limitation ci teria under section 44 (2) and (3) of the Constitution; and 5. Whether or not the reverse onus clause in section 32 ( ) (c) of the Corrupt Practices Act should be read down by the Court so as impose an e. dential and not a legal burden of proof on an accused person. Counsel fo. Appellant then submitted that the court below erred in |: w in disregarding foreign case law altoget' «er. He argues that the main point they wish to emphasi: = as Appellant, is the decision of the Sup eme Court of Appeal in The Aftorney General v Hon. Friday Anderson Jumbe and another, (s..ora) which deals with the issue of reverse onus which ‘he Court below mainly relied upon. It wes Counsel’s argument that the Court below did not dist'nguish the facts of the case in the case of The Attorney General v Hon. Friday Anderson Jumie and another and the present case. He contends that it is correct that the test that the Court should have regard to when interpreting the Constitution is comparability. Under section 1! (1) of the Constitution it is provided that approptiate principles of interpretation of the Constitution shali be developed and employed by the Court to reflect the unique character and supreine status of the Constitution. Counsel however argues that an approach by the Court below to dismiss outright foreign case law that is based on similar provisions to our Constitution without distinguishing whether the cases in question are not comparable to local case law is a narrow end pedantic approach to the interpretation of the Constitution that shall rob us the opportunity to benefit from the wealth of jurisprudence emerging in other jurisdictions, 20 10 15 20 25 Furt' r, Counsel argued that several judgments of both thi High Court and Supreme Court of App d have expounded the principles to be followed when ‘nterpreting the Constitution so that one : an safely say that there has developed some consensu: on the proper approach to be used whe) interpreting the Constitution. Counsel cites and relies cn the case of The State and Malawi Elec‘oral Commission Ex parte Ringtone Mzima.! Counsel is of the firm belief that the case of Ring ‘one Mzima represents a summation of the dominant vi: w emerging in other jurisdictions. Apprliant’s Counsel further notes that in the case of The Attorney General vy Hon. Friday Anderson Jumbe and another the Supreme Court of Appex! observed that the court below had prefe red jurisprudence from some Commonwealth jurisdictions and rejected some jurisdictions that ’.ave constitutions that are not similar to ours. However, ‘ounsel submitted that it is clear this case was not urging Counsel against citing foreign case law ut rather urging the court below not ‘to prefer foreign case law based on the similarity of provis ons but that rather the court should cons -ier the comparability of issues. It is submitted by Coi sel that similar issues with similar cons ‘tutional and statutory provisions would raise comparab lity of the foreign case in question to our « ase law. He added that for instance, in the Court belov . the Appellant relied on cases from the I epublic of South Africa, among other jurisdictions. The right to be presumed innocent and to rer ‘1 silent during trial in section 35 (3) of the Constituti. 1 of the Republic of South Africa is simi’ar to the rights contained in our Constitution in section +4 (2) (f) (iii). He added that Section 42 ¢ } (H (v) of our Constitution further accords the accus: 1 the right to adduce and challenge evidence and not to be a compellable witness against himself or herself. Counsel therefore cont. nds that-a close look at the Constitution of the Repub!ic of Malawi and Republic of South Afzic a show the constitutional principles are similar. Thus, the application of the constitutional principles to comparable issues arising out of a reverse onus would also be the same. Ccungel further argued that the Courts have also considered the issues of reverse onus on the basis of thc common law. He called in aid the case of State v Chugugudza * where the Court relied on the common law to determine the legal burden of proof. |fe submitted that the common law position on the right to be presumed innocent which necesssrily places the burden of proof on the Stai« is insightful to the interpretation of the Constitution. The Appellants note that the decision is 'MS “A Civil Appeal No MSCA Civil Appeal No 17 of 2004 2 (19:36) (1) ZLR 28 21 10 15 20 25 30 not binding but argued that it is informing and perst sive and our Constitution encourages the Court to have regard to it. Counsel then submitted t «, in the circumstances, the Court below should not have discouraged him from citing foreign c ises that are meant to help the Court arrive at a just decision. He added that the Court below sittin: as a constitutional panel should therefore have had regard to foreign case law as encouraged by tI « Constitution and should not have outright disregarded the foreign case law. Counsel for Appell:xit therefore submits that the Court below erred in disregarding the foreign case law altogether. Further, Counsel for Appellant submitted on legal burden of proof in section 32 (2) (b) and (c) of the Corrupt Practices Act. Counsel’s main argument is ‘hat section 32 (2) (b) and (c) of the Corrupt Practices Act shifts the legal burden of proof to the acc ised. He drew this Court’s attention to the Criminal Procedure and Evidence Code under section 187 provides for the legal position on the burden of proof. Counsel also referred us to Sectio 188 (2) of the Criminal Procedure and Evidence Code which defines the legal burden when ‘t refers to acts, omissions (actus reus) or intentions (mens rea). He submitted that the provisio: clearly requires that the burden to prove acts or omissions constituting the offence must alway: rest on the prosecution in terms of section 187 of the Criminal Procedure and Evidence Code. ( vunsel further submitted that the marginal note for section 32 (2) (b) and (c) of the Corrupt Prac: ices Act is misleading in that whereas the marginal note states that the offence is one of being fov'nd with unexplained property, a reading of section 32 (2) (c) of the said Corrupt Practices Act evic cantly shows that the presumption raises the offence of receiving pecuniary resources or property ¢ crruptly. Section 32 (2) (b) of the Corrupt Practices Act therefore attempts to prejudice or dimi:’sh the obligation to establish by evidence the actus reus of receiving pecuniary resources or pioperty and the mens rea of receiving the aforementioned property or services corruptly. It is also the contention of the Appellant that section 32 (b) and (c) of the Corrupt Practices Act attempts to coerce the courts to make a finding of guilt based on the circumstantial evidence of possession of property and a failure (or choice as is «) this matter) to give explanation as to how the person came by the property or services in questia;1. Counsel added that the position in section 32 (2) (a) and (b) of the Corrupt Practices Act can be distinguished from section 32 (2) (c) of the same Act. He submitted that whereas under section 32 (2) (a) and (b) of the Corrupt Practices Act the inference of corruption is drawn from maintaini.g a standard of living above that which is 22 10 i5 20 25 commensurate with the public servant’s emoli ents or having had control or possession of pecuniary resources, property disproportionate > their present or past emoluments (and being wealthy is not an offence); section 32 (2) (c) of the Corrupt Practices Act requires the State to prove receipt, directly or indirectly of the benefit «.f services which he may reasonably be suspected of having received corruptly or in circumstances which amount to an offence under the Act. The Appellant’s Counsel therefore contends that in erms of section 32 (2) (a) and (b) the Corrupt Practices Act, if the accused person opts to exerci:.e his right to remain silent, the Court is supposed to find the accused guilty without the State proving any actus reus or mens rea so long as the accused remains silent or fails to a give a reasonahle explanation. Therefore, in the further view of the Appellant, the court may convict an accused | erson despite there being reasonable doubt as to his guilt. However, in terms of section 32 (2) (c) of the Corrupt Practices Act, the actual receipt of services has to be proven. Furthermore, it is saic by the Appellant that the State has to show that the services in question were given in circumst: ices that raise suspicion of corruption or in the circumstances that are an offence under the Act. 1 the Appellant’s opinion this means that for the reverse onus to operate under section 32 (2) (c) .:f the Corrupt Practices Act, the specific acts in issue and intention that are called in question h: ve to be proved. It is only then that the burden shifts to the accused to give a reasonable explar tion. In this case, the court will only convict if there is reasonable doubt as to the accused person’s guilt. Counsel further submitted that the legal burden of proof must be understood in the light of the presumption of innocence, He said that the presumption of innocence is one of the rights provided for in section 42 (2) (£) (iii) of the Constitution a4 that the presumption of innocence has enjoyed long standing recognition at Common law’. . Counsel also cited several cases in several jurisdictions on the importance of presumption of innocence in the criminal trial process*. It is well to observe that the above arguments notwithstanding, Counsel for the Appellant conceded that the presumption of innocence is a limitable 1i ght as section 44 (1) of the Constitution does not include the presumption of innocence as one of {):¢ rights that cannot be limited. However, Counsel for Appellant argued that for there to be a vali limitation to the presumption of innocence the limitation must comply with sections 44 (2) and 44 (3) of the Constitution. He went on to observe 3 Woolmington v Director of Public Prosecution [1935] AC 462 * See the Canadian case of Regina v Oakes [1968] 1 SCR 15 and South African case of State v Mbatha [1996] ZACC 1. oy 4 “ 10 15 20 25 that nevertheless, in almost every jurisd: ‘ion, there are statutory devices that provide an exceptic to the State’s burden to prove an accusec ,uilty beyond reasonable doubt. It is argued that the Sta’ does this either by imposing a presum iion against the accused, which will hold until he give s proof to the contrary or by requiring hin to lead evidence enough to raise or create some doul ¢ about an issue if he is to escape a convict on. Statute may also require an accused to raise a defencr , excuse or justification or exception if | e is to escape conviction. Furthermore, the Statute me _ impose on an accused the duty to prove or disprove an element of the offence. Statute may do th's by presuming a fact to exist against an accused or by stating that a fact will be presumed to exist unless the accused gives evidence to the contrary. Reference was then made to the case of Regin v Oakes (supra) where the court put it tl us: “Presumptions may also be either rebuttable or irrebuttable. If a presumption is rebuttabl«, there are three potential ways th presumed fact can be rebutted. Firstly, the accused me’ be required merely to raise a re: sonable doubt as to its existence. Secondly, the accus¢c i may have an evidential burden tc adduce sufficient evidence to bring into question the tru: > of the presumed fact. Thirdly, th accused may have a legal persuasive burden to prove «1 a balance of probabilities the no::-existence of the presumed fact”. Counsel further cited foreign cases on th: difference between legal burden and evidential burden .. It is noted that although, in the Court be’ ow Counsel prayed that the Court should declare that t) : Lie reverse onus created should be declared as one imposing an evidential burden®, in this appeal t!.. ty Appellant has changed tune and relyin; on these foreign case laws now submits that section =? (2) (c) of the Corrupt Practices Act is aseverse onus provision that imposes a legal burden of proc f against an accused person and is therefure in violation of the right to be presumed innocent vni:] proven guilty under section 32 (2) (c) of the Corrupt Practices Act unless the same is read down under section 11 (3) of the Constituticn as creating an evidential burden of proof. The wording of the section in issue appears similar to that which exercised the minds of the Privy Counci! in Attorney General of Hong Kong v Lev Awong Kut (supra). The case dealt with a statute whic! provides that where a person was found in possession of anything reasonably suspected of havi: > See Scaggel y Attorney General [1997] 4 L. K. C 98, at 10; State v Choguguza (supra); R v Oakes (supra); Rv Whyte [1988] 2 SCR; and State Bhulwana CCT 12/95 at pages 200-201; Attorney General of Hong Kong v Lee Kwong Kut [1993] AC 951 6 See the declaration sought against the Respon-ient in paragraphs (e) and (f) 24 10 15 20 25 30 been stolen, and he failed to give a sati “actory explanation of how he came to possess such thi 2, he shall be presumed to have stolen i ms. The Privy Council held that the provision create a legal burden of proof and was in viol: tion of the accused’s right to be presumed innocent wi iil proven guilty. It is the further view of the Appellant that the case of Attorney General of Hog Kong v Hui Kin Hong dealt with sectic n 10 of the Prevention of Bribery Act of Hong Kong wh'ch is in pari materia with section 32 (2) (L ) and (c) of the Corrupt Practices Act. The court in the Bui Kin Hong case was of the view that th: section violated the presumption of innocence and tha: it reversed the onus of proof by creating « legal burden of proof but proceeded to analyse it and hold that the section was nonetheless ‘Bill of Rights’ compliant because it was reasonable. Further, Counsel argued that his anal: sis of the decision in the Hui Kin Hong s case seems to show that their Lordships read or wat: red down the legal burden of proof into an evidential cne when they stated that all the prosecutic . needs to prove is a prima facie case that the accused v as living a standard of living not to c mmensurate with his official emoluments by show 1g something more than trifling incomm nsurate or disproportion to which then the accused hav a duty to offer a satisfactory explanatio: . Their Lordship’s use of the word prima facie case to be established by the prosecution shows ‘hat they intended to read down the accused’s burden cf proof to an evidential one. Counsel fo. Appellant therefore argues that it is clear from the atx ve authorities that section 32 (2) (b) and ( ) of the Corrupt Practices Act places legal burden of proof on the accused and therefore violates t) Accused’s right to be presumed innocent and the rigi to remain silent under section 42 (2) (f) (11) of the Constitution. Counsel then turned to argue that the Court below erred in law by failing to distinguish between the decision in The Attorney Generai » Hon. Friday Anderson Jumbe and another (supra) and the. present matter. In the impugned judgment of the Court below the panel stated: “The issues that this court has been called upon to determine are similar to the issues that the Malawi Supreme Court adc: essed and settled in The Attorney General v Hon. Frid¢cy Anderson Jumbe and another [2014] MLR 332. In the abovementioned (sic) case reference was made to the reversal of burden of proof in section 25 (B) (3) of the Corrupt Practices Act. Under the doctrine of precedeiit this judgment of the Supreme of Appeal is binding cn the High Court and the applic. its have not advanced any convincing reasons as to Wi-y 25 10 15 20 25 30 this court should depart { »m the principles expounded in The Atforney Genera! « Hon. Friday Anderson Jumbe .ind another.” Counsel argued that section 25 (E) (3) of the Corrupt Practices Act is fundamentally diffe: ent from section 32 (2) (b) and (c) of the Corrupt Practices Act. He submitted that in the latter section, the prosecution bears the burden of roving all the essential elements of the offence. Coun: «1 added that that is why the Supreme Covrt in The Attorney General v Hon. Friday Anderson Jumnbe and another correctly observed that it is possible to prove a case under the said subsection: without raising or relying on the presumption contained in the reverse onus. The presumption would only arise in the defined circumstances. On the other hand, he continued to submit, under section 32 (2) (b) and (c) of the Corrupt Practi. cs Act, the State only investigates and has to prove tha. one has wealth that is beyond their known past and present emoluments. Once that is proved without anything more, a presumption : rises that such wealth was acquired corruptly or frav tulently. Further, the test as to whether c ¢ had had a lifestyle above their earnings or has had i . control pecuniary resources above their : arnings is a very subjective test which would make unc: rtain the alleged offence. Counsel further. rgued that it is absurd that such an inference would be n de even without proof of individual acts :f corruption being identified as is the case in section 3: (2){c) of the Corrupt Practices Act. It is ...gued that the State would not have to show that yo. were in possession of property or that th: pecuniary resources in question were received in circu istances that raise suspicion of corruptior: or that amount to corruption under the Act. Further, it is said that the State need not even show that you were in a decision making position in relation to any transaction, past, present or futv. It is further contended that the State would not have to prove that you abused your office; the: = would no need to prove loss on the part of governme::t or any private individual would have to be made; and there would be no need to prove that an arbitrary act had been committed. In sum, the Appellant submitted that nothing suggesting corruption at all would have to be proved unde: section 32(2)(b) of the Corrupt Practices Act apart irom the possession of wealth which exceeds one’s present and past emoluments which itself does not exclusively raise an inference of corruption. Counsel for the Appellant contends that as a matter of fact, his study of the record of the court thus far in Criminal Case number 1 «-f 2009 shows that the State only considered the emoluients that the Appellant received as Pres'dent. No consideration was given to his other busin. sses and 26 10 15 20 25 30 sources of income. It is fc “her argued that the figures in question included loans ' om banks and other sources that the State admitted they knew were the Appellant's personal busir sses and those of his wife. It is therefore s ibmitted that it is clear that under section 32(2)(b) and (c; of the Corrupt Practices Act, a court wou Id be in a position to convict a person even where theie is reasonable doubt as a legal burden is ;-laced on the accused. The Appellant then drew our atter‘ion to the case of Attorney General vs F. iday Anderson Jumbe and another (supra), and argue: that the Court did not directly discuss the difference between the legal and evidential burden cf proof but the Court’s finding that the State could prove the offence without relying on the reve: se onus goes a long way to show that section 25(B)(3) of the Corrupt Practices Act raises an evidential burden on the accused. Counsel is therefore of the view that since the Court did not find fav't with Section 25 (B)(3) of the Corrupt Fractices Act then there is no fault with section 32(2)(b} and (c) of the same Act. It is therefore « ounsel’s submission that if the court below had distin;-uished section 25(B)(3) from section 32(. \(b) and (c) of the Corrupt Practices Act, the court wo Jd have found that the provisions are coi ched in a different manner and the court below would ‘ave noted that whereas section 25 (B)(3) ..f the Corrupt Practices Act places an evidential burden .n the accused, section 32(2)(c) of the Act siaces a legal burden on the accused and is unconstitutio: al as it violates the right to be presumed i) nocent and the right to remain silent and if an accused vere to exercise their right to remain silent, a court would convict the accused even though there existed reasonable doubt as to his guilt. Counsel for Appellant the). turned to argue against the finding of the Court below tht the limitation in Section 32(2)(c) of ti-e Corrupt Practices Act is reasonable in an open end democratic dispensation prevailing in che Country especially in view of the fact that the accused will have to make an informed decision of whether or not to exercise his right to remain sileat. Section 44 (2) and (3) of the Constitutior. provides for circumstances in which limitation of the presumption of innocence would be lawful. Counsel however argued that section 44 (2) and (3) of the Constitution contains words or phrascs on which there has been little, if any, interpretation in Malawian jurisprudence. He submitted that the Court therefore ought to also be alive to the d:iferences in the constitutional provisions of the various countries whose court decisions are cited as persuasive authority on the constitut onality of reverse onus provisions or limitations to the presumption of innocence in those countrics. Counsel submitted that the situation in Malawi is very similar to that of South Africa and Canz ia. He added that on the other side of the fence of the ji risprudence are 27 10 15 20 25 the constitutional a’ mgements obtaining in Zimbabwe, Namibia, United 8’ tes, Hong Kong, and in the United King om and under the European Convention on Human ‘ights generally (the Strasbourg jurispru:‘ence). Counsel cited the South African case of State » Mbatha (supra) on limitations of rights where on page 261 Langa J., stated that: “The rights entrenched in this Chapter may be limited by law o general application, provided thet such limitation ~ (a) shall be permissible only to the extent that it is (i) reasonable; (ii) justifiable in an open and democratic society based in an open and democratic :ociety based on freedom and equality; and (b) shall noi the essential content of the right i question, and shall... also be necessary.” Counsel then proce: ded to quote several dicta obtained from different foreign case laws including _a Canadian case of Regina v Oakes supra where Dickson J., cites the Uni: ed States of America case of Leary vs U; ted States’, where Justice Harlan articulated a more str igent test for validity in the following ma wer: “a criminal :.atutory presumption must be regarded as "irrational" 01 "arbitrary" and hence "unconstitut onal" unless it can at least be said with substantial assur ice that the presumed fact is more ‘ixely than not to flow from the proven fact on which it 's made to depend”. He submitted that j:om these foreign cases, it will be seen that the limitaiion to the right to be presumed innocent « created by section 32(2)(b) and (c) of the Corrupt Practic: s Act is not necessary as the provision coud be framed in such a way that the legal burden of proc? must not shift to the accused. He added ‘1at there is no rational connection between the elements of the offence that the State has to prove ai.d the intended conclusion. As such the risk of convicting a person where there exists reasonable doubt is high. Thus, he continued to submit, such a reverse onus as the one under this matter is not rezsonable in an open and democratic society. This Court’s attention was drawn to the most recent England and Wales Court of Appeal case of Webster vs R? whe the appellant was charged of corruptly giving a gift under Section 1 (2) of the Public Bodies Corrupt Practices Act 1889 by way of reward in connection with past business transactions or to induce future business transactions. Section 2 of the Prevention of Corrupt Act 7395 U. S. 6 (1969) ® Thid. 36 ? [2010] EWCA Crim: 819 28 10 15 20 25 1916 requir: * the appellant to prove that the gift admittedly made‘ »s not given corruptly as an inducement: * reward, He appealed on the basis that the latter provis. :n infringed his presumption of innocence under article 6 of the European Convention on Human ghts. The Court held that the reverse onus infringed article 6 of the European Convention on Huma. rights but that the European Convention :n Human rights does not place an absolute prohibition on reverse onus clauses and what is requ red is a fair trial!®. It found that the imposition of the presumption was reasonably necessary ard proportionate to counter the then growing problem of corruption'!. The Court then said in paragraph 25: "We have already observed that there is a considerable difference in effect between the imp ition upon the Defendant of a burden to raise an explai.ation in the evidence which, if given, the prosecution must disprove to the criminal stancard and a legal burden upon the I’ efendant to disprove a legal presumption of corrupt mtive. The latter presumption alwa s raises the possibility that the jury may convict the D fendant of making a corrupt gift c »ntrary to the presumption of innocence, while consider'g that the defendant may be inno: ent of a corrupt motive". Counsel for Appellant argued that aware of this danger and of its duty to ‘read down’ statutes to ensure com,-atibility with the European Convention on Human Rigiits, the Court read down the reverse onu: clause by holding that it placed a burden upon the defe::ant to raise in the evidence an issue wh: ther a gift was corruptly made and that the ultimate lezal burden of proving to the criminal sta:-dard that the gift was corruptly made would rest upon thie prosecution. Counsel then submitted oy: actus reus under section 32 (2) (b) and (c) of the Corrupt Practices Act. Appellant’s counsel comended that the offences under section 32(2)(b) and (c) of the Corrupt Practices Act do not create an offence of being found of unexplained property as the marginal note suggests. He suggested ti.at the reverse onus shows that the offence is having or having had under his control or in his possession pecuniary resources or property reasonably suspected of having been corruptly acquired. t+ added that according to the section, that is supposed te be the charge and that under this provisic.n, the State does not have to prove any corruption or suspicion of corruption. He went on to submit that if the Court below had considered the actus reus of the offence, it could have see paragra; h 15 and 16 of the judgment " See paragra,h 22 of judgment 29 10 15 20 25 not 1 that corruption is not the only logical conclusion t! -t one can draw from possession of we: th. Counsel further put it to us that the case of The Atto: ey General v Hon. Friday Anderson Jui-be and another, mainly turned on the issue of >roportionality. Thus, applying the pro) ortionality test from this case to the present matter, the conclusion will be that section 32 (2) (b) -nd (c) of the Corrupt Practices Act cannot pass the pro} ortionality test. Las ly, Counsel for Appellant submitted that the offence of t cing found in possession of pecuniary resc urces or property reasonably suspected of having been corruptly acquired lowers the standard of proof to one on a balance of probabilities. He argued that the fact that corruption occurred is not cert in and a conviction may be secured on this lowered star dard of proof and that such a standard of } of is not reasonable in an open and democratic societ, . It opens up to the law being abused and an accused may be convicted even in the light of ressonable doubt. Appellant’s Counsel the: fore submitted that in view of the lowered standard of proof, section 32(2)(b) and (c) of the Co: upt Practices Act violates the right to be presumed innc -:ent and the right to remain silent. Ins «m, Counsel for Appellant urged this Court to find and -onclude that section 32(2)(b) and (c) of t .e Corrupt Practices Corrupt Practices Act violates the right to be presumed innocent and to rem nin silent and that the decision of the Court below be reversed. Ti Respondent’s The Respondent, the Attorney General in this appeal, began ':y submitting that except for the rights which are expressly identified as non-derogable, non-restrictable or non-limitable under section 44()) of the Constitution, the rest of the rights in Chapter I of the Constitution can be derogated from, limited or restricted: He submitted that the right to fair trial is one of those rights that is derogarable and can essentially be limited. Further, the Respondent argued that the Constitution in sections 44(2) and (3) of the Constitution sets out guidelines for the said restrictions or limitations to he effective. Section 44(2) of the said Constitution provides as follows: “Without prejudice to subsection (1), no restrictions or limitations may be placed on the exercise of any rights and freedoms provided for in this constitution other than those prescribed by law, which are reasonable, recognized by international human rights standards, and necessary in an open and .:emocratic society.” 30 10 15 20 Then, section 44(3) of the Constitution states that “! :ws prescribing restrictions or limitations shall not negate the essential content of the right or f; edom in question, and shall be of general application.” The Respondent argued that for the right to fair tria! to be limited, the limitation must (i) be prescribed by law; (ii) be reasonable; (iii) be recogniz: d by international human rights standards; (iv) be necessary in an open and democratic society; (v) not negate the essential content of the right or freedom in question; and (vi) be of general application. The Respondent further argues that in order to understand the purport of section 42(2) (f) (iii) of the Constitution, a generous and purposeful examination of the issues before this Court and those that were before the judges in foreign jurisdictions should inform the Court how b« »t to resolve a case. The Respondent cites Attorney General v Friday Anderson Jumbe and another (supra) and contends that reverse onus provisions in corruption legislation should always be <onstrued in line with the tenets of section 11(1) and 2 and 13(0) of the Constitution. He added ‘hat the unique character, public trust and good governance values mirrored in the constitutiona’ framework, should inform legislation that touches on transparency and confidence in public fun: ‘ionaries as was case with the applicant. The Respondent further argued that the right to be presumed innocent has no contrary right in section 42 of the Constitution or paragraph (f) thereof. Thus, in the words of Langa J “...the presumption of innocence is clearly of vital importan: ¢ in the establishment and maintenance of an open and democratic society based on freedom anc: equity.” He went on to say that the right to be presumed innocent is the foundation of an acceptz isle criminal justice system; a justice system that would earn and command the trust and confidence of the society. As such, by providing for the right to a fair trial and right to be presumed innocenit in section 42(2)(f)(iii) our Constitution is not conferring on the citizens a new right. It is only recognizing a right that has existed under common law, statute and indeed international instrarnents. He added that what the Constitution has done is to give this right the force and supremacy characterized by all constitutional provisions. Further, the Respondent submitted that the presumption of innocence is intrinsically connected to the burden of proof in criminal cases and the duty to prove an accused person guilty rests on the prosecution. However, this is subject to the defenes and exceptions. Thus, the right to be presumed innocent can therefore be limited, and has been limited. In order to buttress this point, 2 State v. Mbatita (1996) 2 LRC 208 31 10 15 20 25 the Respondent brought to the attention of this ‘ .urt sections 187(1) and 188(1) and (2){a) of the Criminal Procedure and Evidence Code . The Respondent further submitted that the presumption of innocence can be limited as long as the justification for such limitation is clearly estat lished. The criminal standard of proof does not require absolute certainty. Counsel cites Miller .. Minister of Pensions'*, where Denning L. J. put it thus: “., the evidence must reach the same de gree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degre« of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibi ities to deflect the cause of justice. If the evidence is so strong against a man as to leave on » a remote possibility in his favour, which can be dismissed with the sentence 'of course it : possible but not in the least probable, the case is proved beyond reasonable doubt, but no ‘ing short of that will suffice.”"4 It was also the Respondent’s argument that in its ordinary operation reverse burdens serve the same goals as the presumption of innocence. Both a m to achieve a fair balance between the general interest of the community and the personal sights of the individual'>. Put another way, he continued, a balance is sought between the defi idant's right not to be wrongly convicted and the community's broader interest in law enforcemem. The presumption of innocence ordinarily places great weight on the defendant's rights. The reverse burden favours the prosecution, so the shift must be justified. In re-striking the balance, resonable proportionality must be maintained. For this argued the Respondent called in aid the case of Janosevic v. Sweden '°, This Court is concerned with the compatibility of a statutory reverse burden with the common law standard of proof and with the Malawi constitution. The potential incompatibility is clear: the reverse burden might require a defendant, presumed to be irnocent, to prove it. However, while a reverse persuasive burden requires the defendant to prove his innocence on the balance of probabilities, a reverse evidential burden only requires him to raise a doubt. The prosecution will then assume the 8 [1947] 2 ANE. R. 372 4 Thid. 373-374 5 See Brown vy. Stott 120031 1 A. C. 681, 704, per Lord Jingham, per Lord Hope p. 722 16 (2004) 38 EILRR. 473 32 10 15 20 25 persuasive burden of negating that matter, ‘1eyond reasonable doubt. This situation is very familia: in cases where self-defence arises as an is ve. This Court’s attention was further drawn to the protection of persons (not applicable to those under investigation) as enshrined in internationa’ instruments as well as the Constitution of the Republic of Malawi. Likewise, we were referred io the provision that criminalizes a public officer who acquires unexplained property during hi: tenure of public office and is unable or unwilling to explain how he acquired it, in spite of be'ng required by law to be transparent about his income, interests and liabilities. The Respondent argues that is a long-standing argument that different and higher standards are required and expecte:! of those who work in the public sector, In England, the Bribery Act 1916 had been prompted by s. andals involving contracts with the War Office. During a speech in the House of Lords, the Lord Chancellor said: “I feel satisfied that you will: «ree with me in thinking that, short of high treason, it is almost impossible to imagine . 1 offence more grave than to corrupt one of these public servants and cause the neglec’ of his duty.” The said Bribery Act 1916, among other .1ings, introduced the presumption of corruption, which shifted the burden of proof, so that it was ‘or the defence to prove (on the balance of probabilities) that a payment was not corrupt. The reasons given in Parliament for the introduction of the presumption were that it was necessary t' remedy an obvious defect in the law and that it wouid not cause any injustice to an accused, as i1 would be easy for him to discharge the burden of proof if he was innocent. The Respondent cited R v Carr-Briant'’ in support of the argument that the introduction of the presumption of corrup:ion was meant to remedy an obvious defect in the law. It is observed that later, the Redcliffe-Maud Committee explained at paragraph 76 that "public life requires a standard of its own and those entering public office for the first time must be made aware of this from the outset"!®, The task of the Committee was to examine local government law and practice following widespread disquivt about the standards of conduct in local government. f concluded that, although standards of coduct were ‘generally high’, it was right to be concernes that corruption exists, bearing in mind that, ‘unless corruption is stopped, it spreads’. 17 11943]1 KB 607 8 bttos://www.cambridge.org/core/journals/cam} : idge-law-journal/article/abs/redcliffemaud- report/18F53B3A9D47AE767C7AA2FE4B56F6 (B. Accessed 19 November 2021 33 10 45 20 25 Furthermore, the Respondent subn ‘ted that the effect of the reverse burden is that, when th basic facts have been proved by the pro: cution, to the criminal standard, it becomes necessaty cor the defendant to demonstrate, by argu ient or with evidence, that there are reasons why any a iverse presumption should be disregarded or that there remains a doubt to be settled in his favour, «0 that the court should not infer of his gu It. The Respondent then went on to contend that the inf--rence can be rebutted not only by admi: ible evidence of an innocent explanation, established on the balance of probabilities, but also by an evidence-based submission of the defendant tl-at the prosecution case does not exclude a plausible explanation. The Respondent cited several foreign cases including X v United Kingdom; Salabiaku v France *° and Attorney General of Hong Kong v Lee Kwong-Kut 7!, where ‘he Privy Council was asked to consider the compatibili‘y of a reverse onus clause with article 11(4) of the Hong Kong Bill of Rights, which guarantees the right to be presumed innocent until prov: : guilty, giving judgment, considered Salabiaku v France and then said: “There are situations wher: it is clearly sensible and reasonable that deviations shc iid be allowed from the strict ap) ‘ications of the principle that the prosecution must prc ve the defendant 's guilt beyond rm sonable doubt .... Some exceptions will be justifiable, others will not. Whether they a: justifiable will in the end depend upon whether it 1 mains primarily the responsibilit. of the prosecution to prove the guilt of an accused to the required standard and whe: ier the exception is reasonably imposed, notwithstand: 12 the importance of maintaining ihe principle which article 11(1) enshrines ... If the exception requires certain matters to |-¢ presumed until the contrary is shown, then it will be d: ficult to justify that presumption i mless, as was pointed out by the United States Suprerae Court in Leary v United States (1969) 23 L Ed 2d 57, 82, ‘it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend’ .””* The Respondent also argued that 2 person suspected or accused of a criminal offence has also traditionally been accorded a rigin of silence, which means that there is no obligation to answer 19 App 5124/71, (1972) 42 Collection of )2ecisions 135 20 (1988) 13 EHRR 379 2111993] A. C. 951 2 Salabiaku v France (1988) 13 EHi. R 379 at 388 34 10 15 20 25 30 questions, either before or c ring the trial. He added that at common law, this ri, ‘tt has been supplemented by a further : :Je that the fact-finders may not be invited to draw ny adverse inference from the failure of : defendant to assist the police or to give evidence at tris’. However, he continued to argue, in Malawi either section 188 and section 256 or section 314 of -he Criminal Procedure and Evidence Cod: apply. Thus, if the defendant elects to give evidence the: « is a further consideration where the law equires an explanation from him if he is to avoid con, iction based on an adverse inference or pr: sumption. Further, the Respondent submitted that regar'ing whether a case to answer can be established in the absence of the presumption normally depends on whether the basic facts amount to a pr ima facie case. He added that proof of the basic facts is not, without more, proof that an offence has been committed, namely, that the questionable ci: cumstances automatically indicate that the defendant corruptly acquired his property. However, |< contended that it seems highly likely th.t a prima facie case would be held to exist. The Respcndent added that under the 2010 amend ent of the Corrupt Practices Act and section 32 in p: “ticular, the property attributed to the pv'ilic officer is, in effect, deemed to represent corrupt 1 .ducements, advantage or rewards unless he contrary is demonstrated by him, on the balance of . robabilities or the court is made to dou®t that this is the correct thing to presume. Thus, in the fu ther view of the Respondent, it follows t] at there should be a case to answer once the basic fact= are proved because, in the event of the defence proffering no evidence or otherwise challenging the presumption, it would not ha -¢ been rebutted. The Respondent thus submits that if tI » basic facts are proved beyond reasonabi doubt in a presumption case and the defendant however elects not to give evidence on oath or a: firmation or to challenge the prosecution case by any ot 1er means, a conviction would be inevitalle. As it were, the presumption will not have been rebutted on the balance of probabilities or ai all. Furthermore, the Responden’ contends that section 32(2) (c) of the Corrupt Practices Act imposes on the accused an evidentiz! }:urden upon case to answer stage and not a legal burden. Namely, the accused is required to adducv evidence sufficient to raise an issue as to whether he is zuilty of the offence of being found in p2ssession of unexplained property or income (the presumed fact on investigations). He added that the accused is not required to demonstrate on a balance of probabilities that he is not gvilty of possession of unexplained property or income in order to be acquitted of that offence, which would be the case if the accused were saddled with a legal burden. The Respondent claims a -imilar argument was made in the South African care of State v 35 10 15 20 25 30 Bhulwana & others (- pra). The accused were convicted of dealing in dagg by reason of the operation of the presu stion in section 21(1)(a)(i) of the Drugs and Drug Tra ‘icking Act 1992, which provided that wi-ere it was proved that an accused had been found in p: ssession of dagga exceeding 115g "it sha’! be presumed, until the contrary is proved, that the acc used dealt in such dagga." The accused «ontended that this reverse onus provision violated their presumption of innocence and was w constitutional. The State asked the court to read dovn the section by interpreting it as merel.: imposing an evidential burden rather than a legal burcen of proof on the accused, in the event ihat the section is held to be unconstitutional. Megan J. delivering the judgment of the Consti‘utional Court of South Africa at paragraphs 199 and 209 said: "Tt cannot be ac. epted that the subsections impose an evidential, not ale; al burden, Section 21(1)(a)(i) provides that, where an accused is found in possession of a quantity of dagga in excess of 115¢ it shall be presumed, ‘until the contrary is proved’, th: t the accused was guilty of dealin, in dagga. The clear language of the text suggests that th presumption will stand unless pr of to the contrary is produced. Presumptions phrased i» such a way have consistently be: » held to give rise to a legal burden since the judgeme: ¢ of the Appellate Division in Ex, > Minister of Justice: Re R v Jacobson and Levy, 1931 «.d 466. On several occasions the / »pellate Division has held that provisions in the legisk ‘ton antecedent to this Act which ave rise to the presumption of facts ‘unless the contrary is proved’ impose a legal burden yon accused persons: see State v Guess (4) SA 715(4) at 719, State v Radloff 1978 (4: £4 66(A) at 71. There is no significant difference betwen the formulation of the earlier p; csumption considered in these cases and section 21(1) (::) (i), although the formulation in ‘he earlier legislation was ‘unless’ rather than ‘until’ the « ontrary is proved. In the court a quo in Bhulwana's case Marais J was of the view that s.21 (1) (a) Gj) plainly gave rise to aIczal burden (see 1995(1) SA 509(C) at 510, 1995 (5) BCLR 566(C) at 567. I agree that there can be no doubt that s.21(1) (a) (i) is a reverse onus provision which imposes a burd:n of proof on the accused. The effect of the provision is ihat, once the State has proved tha: the accused was found in possession of an amount cf dagga in excess of 115g, the accused will, on a balance of probabilities, have to show that such possession did not constitute cealing as defined in the Act. Even if the accused raised s reasonable doubt as to whether he or she was dealing in the drug, but fails to show it on a balance of probabilities, |: or she must nevertheless be convicted. The effect of :mposing the legal 36 10 15 20 25 burden ont’ 2 accused may therefore result in a conviction for dealii _ despite the existence of a reason: ‘re doubt as to his or her guilt." Counsel for the Respondent argues that, similarly, in R v Oakes (supra) a case also relied upon by the Appellant, the Supreme Court of Canada considered section 8 of the Narcotic Control Act which provided th: { if the crown was able to prove beyond a reasonable ‘oubt that the accused had been in possession of a narcotic then the accused was to be given an opportunity of establishing that the was not in possession of the narcotic for the purpose of trafficking. The section in effect required the accused to establish on a balance of probabilities that he did not have possession of the narcotics for pi rpose of trafficking. Dickson C. J. C. in R v Oakes at pages 132-133 said: "In general one must, I think conclude that a provision which requires an accused to disprove o:: a balance of probabilities the existence of a presu sed fact, which is an important « ement of the offence in question, violates the presun »tion of innocence in section 11 (.1) if an accused bears the burden of disproving on a bal: nce of probabilities an essential e] ment of an offence, it would be possible for a conviction to occur despite the existence <* a reasonable doubt. This would arise if the accussd adduced sufficient evidence tc raise a reasonable doubt as to his or her innocence but did not convince the jury on a belance of probabilities that the presumed fact was true." Relying on the ab: ve cited authorities, the Respondents submitted that 1 .¢ right to a fair trial, which includes the right to be presumed innocent, is an established principle of our law which saddles the burden of proof squarely on the shoulders of the pros«cution. As such, the entrenchment of this right in section 42(2) (1) of the Constitution must be interpreted in this context. He added that it requires that the prosecution bear the burden of proving all the elements of an offence the accused is charged with. It was the further contention of the Respondent that Section 32(2) (c} of the Corrupt Practices Act brings into play the legal burden of proof for the prosecution throug hout the trial and an evidential burden of proof on the prosecution and the same shifts to the accus: d person upon being found with a case to answer. The Respondent then argued that pursuant to the Republican Constitution any limitation of rights must be justifiabie imder section 44(2) and (3) of the Constitution. Again, thc. Respondent is relying on the following s:atement in the case of R v Oakes (supra), on interpretsiion of a section in the 37 10 15 20 25 Canadian Cc stitution which is similar to our said sections 44(2) and *) of the Constitution, where the court in ¢ anada put it thus: “A second contextual element of interpretation of section 1 is provided by the words “free and cemocratic society”. Inclusion of these words as final standard of justification for limit: on rights and freedoms refers the court to the very purp:-se for which the charter was origi:ally entrenched in the Constitution. Canadian Society is to be free and democratic. The court must be guided by the values and principles essential to a free and democratic society...” Further, Counsel argued and submitted that with the rampant corruption level in this country as was affirmec in The Attorney General v Hon. Friday Anderson Ju:nbe and another, this Court should look »: the objective of in particular section 32 (2) (c) of th: said Corrupt Practices Act which is to ¢ ard against unjust enrichment of public fiduciaries hol mg positions such as the one on which ti: applicant was. It is further contended that the pro-ision does not stop public functionarie: from accumulating property or income. It only criminalizes possession of unexplained secuniary resources or property that is after an investige:ion has been carried out and it is demonstrated that such accumulation is disproportionate to the present or past official emoluments or other known sources of income of such public fiduciaries. Lastly, the ] espondent submitted on whether limitations of sectior 32 (2) (c) are proportional. Counsel argied that the limitations are proportional. He added that ihe word Public office under the Corrupt ! ractices Act means any person who is a member of, or holds office in, or is employed in the service's of, a public body, whether such membership, office or employment is permanent or temporary, whole or part-time, paid or unpaid, and includes the President, a Vice President, a Minister, anc a member of Parliament. The Respondent continued to argue that under the Corrupt Practices Act, public officers exercise wide independent and discretionary powers in their own right, and a times only subject to law. Thus, when public officer: fully entrusted with such a fiduciary duty, unjustly enriches themselves or are found in possess:on of pecuniary resources or property disproportionate to their income or known sources of income they must give satisfactory explanation for the same. It was submitted that this is the case as the public office is held on trust for the public interest. Thus, any unexplained resources or property ic to the detriment of the public 38 10 15 20 25 interes' Accordingly, there is an expectation from the put‘ officer concerned to give an explan: ‘on thus the limitations provided therein cannot be said ‘o be disproportionate. In conc‘usion, the Respondent submitted that the plain meaning of section 32(2)(b) of the Corrupt Practice s Act is that it is in line with the constitutional framework, a necessary tool for the fight against -orruption. The Respondent prays that this appeal be di: missed in its entirety with costs. THE LAW AND DISCUSSION (Analysis of the law and determination) Wheth: r the procedure of referring a matter to a constitution«! panel was followed; We mvt begin by pointing out the significance of the introduc:ion of section 9 (2) and (3) of the Courts ‘ct and the rules made thereunder known as the Couri’ (High Court) (Procedure on the Interpr: :ation or Application of the Constitution) Rules, and c? course with the now applicable rules ir Order 19 of the Courts, (High Court) (Civil Procedure) “ules. It is well to note that one of the rea: ons why section 9 (2) and (3) of the Courts Act and the ules were introduced was only for the cen ‘tutional panel to hear and deal with matters that relate t-: the interpretation and application of the Constitution. Thus, a constitutional panel’s jurisdiction ought not to be invoked in matters which «an properly be dealt with in the ordinary course of litig: tion. It is against this background that a p-ocedure was laid down on how a matter relating to the interpretation or application of the _ Constit ation ought to be certified. Otherwise, our current Cons:tution pervades all aspects of life so muc!: so that any action taken by a party may easily be transformed into a constitutional issue by simply citing some provision of the Constitution however remote. We raise the above issue because, having looked at the record, there arises a question of what was the procedure of referring a constitutional matter to the constitutional panel before the co:ning into force of Order 19 of the Courts. (High Court) (Civil Procedure) Rules, 2017, As the factual background above will show, the Appellant was answering several corruption charges before the High Court when he raised some issues for the trial court to determine in respect of sect’on 32 (2) (b) and (c) of the Corrupt Practices Act in view of his constitutional rights. The trial co wt in its ruling agreed with the Appellant that the issue: he raised were of a constitutional 39 10 15 20 25 : ture and directed that he presents them before the ( ‘ief Justice for certification pending a « -termination by a panel of not less than three judges. T: : Appellant duly complied and as it was | -ovided by rule 4 of the Courts (High Court) (Procedw - on the Interpretation or Application of tie Constitution) Rules, brought an originating motion s cking the determination by the Court on t'.e above highlighted constitutional questions. The Appe! ant sought from the Constitutional panel < -veral declarations as mentioned above. Unfortunately, the record has no certification from the Chief Justice. It seems the referral was not made by the ‘Court as provided by the then applicable rules. Similar to Part I of Order 19 of the Courts, (High Court) (Civil Procedure) Rules, 2017 there ere three ways in which matters of this nature are referrec to the Chief Justice. These are: first, the ; eneral commencement of the proceedings which was th: 1 by an originating motion (now through summons); secondly, the referral by the President; and thirdly the referral by other courts. The | roblem that arises in this case is that when the Appellant decided to raise the issues that he thought 1 ated to the application or interpretation of the Consti ion, the trial had already commenced. 7s such, the only viable way of referring the matter to the Chief Justice ought to have been through 1 .¢ referral by the court. In other words, the Court was si sposed to invoke rule 8(1) of the Courts (-tigh Court) (Procedure on the Interpretation or Appli: ation of the Constitution) Rules, which } vovided as follows: oe (1) Where a referral to the Court in relation to any n-atter on the interpretation or application of the Constitution is necessary as determined by :-1 original court, the Judge or Magistrate or Chairperson of the original court shall, wihin seven days from the date of the determination, submit the referral in Form 3 of the Schedule to the Chief Justice for certification under section 9(3) of the Act. (2) Where the original court had made a referral under sub rule (1) the proceedings in the original court shall be stayed pending a decision cf the Court. “ Rule 4 of the Courts (High Court) (Procedure on the Interpretation or Application of the “onstitution) Rules, provided as follows: 40 10 15 20 25 “Any proceeding under these Rules sha!’ »e commenced by an originating motion in Form 2 of the schedule, within fourteen (14) Jays after the certification by the Chief Justice pursuant to section 9 (3) of the Act; but :.» however that — (a) in the case of referral by the President under section 89 (1) (h) of the Constitution, the proceedings shall be comment cd by a notice of referral; and (b) in the case of referral by any of\er court under rule 8, the proceedings shall be commenced by notice of referral in Form 3 of the Schedule.” Evidently, where a matter is referred by a court, the proceeding in that original court is stayed. On the other hand, constitutional matters comm«-nced under rule 4 of the Courts (High Court) (Procedure on the Interpretation or Applicatio., of the Constitution) Rules, there were all to be disposed by the Constitutional panel and no proceeding was to be stayed. The matter was meant to be dealt fully by the constitutional panel becuse the statement of case would essentially be on interpretation or application of the Constitution owever, we now have this matter whose original proceedings were stayed pending the determinz: ‘on of the Constitutional panel, when there was no referral by the trial judge. The matter was brc ight to the Chief Justice for certification using a wrong procedure and the Chief Justice proceed d to certify it. It is this Court’s view that there was an error on how this constitutional matter came to be, the proper procedure was not followed. However the Chief Justice having certified the matter as having been complied with section 9 (2) of th: Courts Act, and the Constitutional panel having substantially heard and determined the origina‘ :ng motion, this Court cannot undo both of these parallel processes. Hence, we should reluctant]: proceed and determine this appeal on its merits. Principles governing Constitutional and Sta:.utory Interpretation Before we proceed further, it is well to observe that that determining the above issues that have arisen in this matter inevitably involves interpreting the relevant constitutional and statutory provisions. Accordingly, this Court finds it necessary to briefly outline the governing principles of constitutional and statutory interpretation. Sections 10 and 11, 12, 13 and 14 of the Consiitution enjoins courts to promote principles of the Constitution, advance the rule of law, human ti. hts and fundamental freedoms in the Bill of Rights 41 10 45 20 25 (Chapter IV of the Constitution) and cont “ute to good governance. This approach ought to be the mandatory constitutional canon of statut: -y and constitutional interpretation. Further, this Couri has a duty to adopt an interpretation ‘hat conforms to the above-named provisions of the Constitution. Section 10 of the Constitution provides a: follows as regards the application of our Constitution: “(1) In the interpretation of all law: and in the resolution of political disputes the provisions of this Constitution shall be regarded as the supreme arbiter and ultimate source of authority. (2) In the application and formule ion of any Act of Parliament and in the application and development of the common law and customary law, the relevant organs of State shall have due regard to the principles and p: ovisions of this Constitution.” Respecting the interpretation of the Cons tution, Section 11 of the said Constitution advises that “(1) Appropriate principles of in ::pretation of this Constitution shall be developed anc employed by the courts to refi ct the unique character and supreme status of this Constitution. (2) In interpreting the provisions « f this Constitution a court of law shall— (a) promote the values which :inderlie an open and democratic society; (b)take full account of the provisicns of Chapter III and Chapter IV; and (c) where applicable, have r-gard to current norms of public international law and comparable foreign case law. (3) Where a court of law declares an act of executive or a law to be invalid, that court may apply such interpretation of that act or law as is consistent with this Constitution. (4) Any law that ousts or purposis to oust the jurisdiction of the courts to entertain matter: pertaining to this Constitution shall be invalid.” 42 Section 12 of the Constitution pro “des for the fundamental principles of the Constitution. These are put in the following terms: “ (1) This Constitution is founded upon the following underlying principles— (a) _all legal and politice! authority of the State derives from the people of Malai and shall be exercised in accor lance with this Constitution solely to serve and protec’ their interests; (b) all persons responsible for the exercise of powers of State do so on trust and shall only exercise such power to the extent of their lawful authority and in accordance with their responsibilities to the »cople of Malawi; (c) the authority to exe cise power of State is conditional upon the sustained t-ust of the people of Malawi and t! at trust can only be maintained through open, accounta! 'e and transparent Government an.; informed democratic choice; (d) the inherent dignity and worth of each human being requires that the State ad all persons shall recognize anc: protect (e) as all persons have «qual status before the law, the only justifiable limitat ons to lawful rights are those necessary to ensure peaceful human interaction in an op: n and democratic society; and (f) all institutions and ; ersons shall observe and uphold this Constitution and (!.¢ rule of law and no institution or person shall stand above the law. (2) Every individual shail have duties towards other individuals, his or her fami'y and society, the State and other legally recognized communities and the international community and these duties shall include the duty to respect his or her fellow beings without discrimination anc! to maintain relations aimed at promoting, safeguarding and reinforcing mutual respeci and tolerance; and in recognition of these duties, incividual rights and freedoms shall be exercised with due regard for the rights of others, collective security, morality and the common interest.” Section 13 of the Constitution provides for national policy. In particular, section 13 (0) of the Constitution specifically states th: : the State shall actively promote the welfare and deve!.:pment 43 10 15 20 25 of the people of Malawi b: progressively adopting and implementing policies ar * legislation aimed at achieving public tr st and good governance by, inter alia, introducing me: sures which guarantee accountability, tr asparency, personal integrity and financial probity a d which by virtue of their effectiveness <nd visibility will strengthen confidence in public institu‘ions. More importantly, section 14 of the Constitution encourages the courts to have 1-gard to the principles of national policy when interpreting or applying any provisions of the Ccnstitution or any other law. The said section 14 of the Constitution provides as follows regarcing the said application of the principles of national policy: “The principles of na ional policy contained in this Chapter shall be directory in nature but courts shall be entitl-d to have regard to them in interpreting and applyiny any of the provisions of this Co stitution or of any law or in determining the validity oj decisions of the executive and in: :e interpretation of the provisions of this Constitution.” As this Court understands i. constitutional provisions must be construed purposi\ ely and in a contextual manner and cour 5 are simultaneously constrained by the language used Courts may not impose a meaning that -he text is not reasonably capable of bearing. In othe: words, the interpretation should not be i sduly strained but should avoid excessive peering at th Janguage to be interpreted without sufficient attention to the historical contextual scene, which includes the political and constitutional |.-story leading up to the enactment of a particular provi ion??. In the case of Nseula v Attorney-General and another**, this Court instructively observed ‘hat: “A Constitution is a special document which requires special rules for its intc “pretation. It calls for principles cf interpretation suitable to its nature and character. Tie rules and presumptions which are applicable to the interpretation of other pieces of legislation are not necessarily applicable to the interpretation of a Constitution, In the leading case of the Privy Council on interpretation of constitutions in the Commonwealth, Mivister of Home Affairs and another \: Fisher and another [1980] AC 319, Lord Wilberforce in delivering the judgment of the « ourt said this: 33 See Okiya Omtatah Okoiti & 2 thers vy Attorney General & 4 others [2018] eKLR 2411999] MLR 313 (MSC) 44 10 15 20 25 ‘This is no wa’ ‘o say that there are no rules of law which should apply. the interpretation of a Constituti. 1. A Constitution is a legal document giving rise, amc ig other things, to individual righ s capable of enforcement in a court of law. Respect rust be paid to the language whicl. has been used and to the traditions and usages which have given meaning to that langua; e. It is quite consistent with this and with the recog) ition that rules of interpretation 1 iay apply to take as a point of departure for the proces: of interpretation a recognition of he character and origin of the institution and to be guided by the principle of giving full « ffect to those fundamental rights and freedoms with a statement of which the Constitution commences.’” There is no doubt in th s Court’s mind that section 32 (b) and (c) of the Corrupi Practices Act must have been enacted p:'rsuant to the fundamental principles of the Constitution and must be understood purposive'y because it is undeniably linked to the Constitutior The courts must therefore always seek .) promote the purpose principles and objects of the Co: -titution. As courts we must prefer a geneous construction over a merely textual or legalistic on’ in order to afford the fullest possible co: stitutional meanings and guarantees”>. Further, in search ag for the purpose, it is legitimate for this Court to seek to identify the mischief sought to be rer::died. Thus, that is why it is helpful, wic. = appropriate, to pay due attention to the social and Li: .orical background of the legislation. As ji were, we must understand the provision within the co-itext of the grid, if any, of related provisions of the Constitution as a whole, including its under: ying values. Thus, although the text is ofi-n the starting point of any statutory construction, the mr aning it bears must pay due regard to coniext®®. This is so even when the ordinary meaning of ‘he provision to be construed is clear anc! unambiguous. This Court further observes that the s«cial and historical background of a legis!tion is important in seeking to identify the mischief sought to be remedied was appreciated in the Kenyan case of Commissioner of Income Tax v Menon”, where it was held that one of the csnons of statutory construction that a court may look isto is the historical setting of an Act. This is done so as to ascertain the problem with which the Act in question has been designed to deal. ibid. 26 See Blantyre Water Bo +d and others v Malawi Housing Corporation, [2007] MLR 48 (¢ CA). 27 T1985} KLR 104; [1976 1985] EA 67 45 10 15 20 25 Therefore, in cc struing the constitutionality of the impugned provision of section 32 (2) (b) and (c) of the Corr, t Practices Act, we are obliged not only to avoid an i terpretation that clashes with the constiti ‘ional values, purposes and principles but also to seek a1 reaning of the provisions that promotes c¢ nstitutional purposes, values, principles, and which advances rule of law, human rights and fund: mental freedoms and also an interpretation that permit: development of the law and contributes o good governance. It is thus clear that it is the duty of a court when construing statutes to seek an interpretation that promotes the objects of the prii-ciples and values of the Constitution anc to avoid an interpretation that clashes with it, for any law that is inconsistent with the provisions o* the Constitution is, to the extent of such inconsistency invalid. More importantly, no one provisio. of the Constitution is to be segregated from the others a'id to be considered alone but that all the provisions bearing upon a particular subject are to be | rought into view and be interpreted as to effectuate the greater purpose of the instrument”*. Whether sectia. 32 (2) (b) and (c) of the Corrupt Practices Act reve: ses the onus of proof in respect of an e: -ential element of the offence created thereby and pl: ces a legal or evidential burden of proof on an accused person? The starting point in determining this issue is section 42 (2) (f (iii) of (he Constitution. The said section 42 (2) (1. Giii) of the Constitution is in the following terms: “Rvery ; erson arrested for, or accused of, the alleged commissin of an offence shall, in addition io the rights which he or she has as a detained person, hive the right— (f) as an accused person, to a fair trial, which shall include the rig ht— (iii) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial...” This section is vnderstood to mean that the legal burden of proof of comission of an offence rests on the state throughout trial or criminal proceedings. The accused is presumed to be innocent at all times and that he is not obliged to say anything on being charged with the commission of an offence. 28 See Nseula v Ai orney-General and another (supra) 46 10 15 20 25 Next is se: ‘ion 32 of the Corrupt Practices Act respecting what pos *ssion of unexplained property entails. T} - said section provides as follows: “(J ) The Director, the Deputy Director or any officer of the Bureau authorized in writing by the Director may investigate any public officer where there are re sonable grounds to believe that such public officer— (a) maintains a standard of living above that which is cor:mensurate with his present or past official emoluments or other known sources of income; (b) is in control or possession of pecuniary resources or property disproportionate to his pr sent or past official emoluments or other known source: of income; or (c) is in receipt directly or indirectly of the benefit of any services which he may re: -onably be suspected of having received corruptly or in circumstances which amount to. offence under this Act. (2 Any public officer who, after due investigation carri. d out under the provisions of su: section (1), is found to— (a: maintain a standard of living above that which is comm: nsurate with his present or past of{:cial emoluments or other known sources of income; (b) be in control or possession of pecuniary resources or ; roperty disproportionate to his pr: sent or past official emoluments or other known source: of income; or (c) be in receipt directly or indirectly of the benefit of any services which he may reasonably be suspected of having received corruptly or in circumstances which amount to an offence under this Act, shall, unless he gives a reasonable explanation, be charged with having or having had under his control or in his possession pecuniary resources or property reasonably suspected of having been corruptly acquired and, unless he gives a sa.isfactory explanation to the court as to how else he was able to maintain such a standard of living, or such pecuniary resources or property came under his control or his possession, or he came to enjoy the benefits of such services, he shall be guilty of an offence. (3) In this section— 47 10 15 20 25 (a) “official emoluments” includes a pension, gratuit, or other terminal benefits; (b) “public officer” includes any person who has held office as a public officer on or after 6th July, 1964.” The Court below held that the above section 32 (b) and (c) does not place a legal burden of proof on th- Appellant whereas the Appellant insists it does and he ¢rgues that in accordance with section 188 (2) of the Criminal Procedure and Evidence Code the ley al burden of proof always rests with the prosecution. As it were, the appeal before us turns on whether section 32 (b) and (c) of the Corrupt Practices Act creates a legal or evidential burden on a defendant. Thus, a crucial distinction has 19 be made between what is called the ‘legal’ burden sometimes called the ‘persuasive’ burd: n, of proof and the ‘evidential’ burden. We acknowledg: both parties’ correct submission on the ¢ tinction between legal burden and evidential burden. 4s it were, a defendant who bears a lega! ‘surden will lose if he fails to persuade the fact-finder of ‘:e matter in question on the balance of ps \babilities. Further, as this Court understands it, an evi -cntial burden in relation to a matter is a] «arden of adducing sufficient evidence to raise an issue : -garding the existence of the matter. The ‘ urden of disproof will then fall on the prosecution in 2 -cordance with the normal rule. The significance of the distinction in this context is that evidentia! burdens are regarded as compatible with ihe presumption of innocence. Unlike a legal burdens, #1 evidential burden does not require the « cused to assume the risk of being convicted because h fails to prove some matter relating to hi: tnnocence. In tl. United Kingdom, the courts have built on this distin: tion discussed above and have held that if they find a legal burden imposed by a reverse onus provision to be incompatible with article 6(2) of the European Convention on Human Rights, they ca use the interpretative power under section 3 of the Human Rights Act to read down the legal burden to an evidential burden. The use of section 3 is the preferred solution to any issue of incompatibility of legislation with the Convention. A declaration of incompatibility under section 4 of the Human Rights Act has been said io be the last resort and to be avoided if it is at all possit2 to interpret the legislation in a way that is Convention-compliant””. One other point that needs to be made at this stage is that the prot lem encompasses both presumptions and affirmative defences. It makes no difference whether 29 Se. Ghaidan v Godin-Mendoza [2004] 3 W. L. R. 113 48 10 45 20 25 - e@ statute provides that x is to be presumed against the ‘efendant unless he proves the contrary, .. whether the statute states that it is a defence to pro: x. Both types of provision require the efendant to prove a matter going to his innocence of thc offence charged. 1¢ is the opinion of this Court that when a challenge is 11ade as to the compatibility of a reverse «aus provision, the present law requires a three-stage p ocess of decision-making by the Court. “hese are! First, is the interpretation of the statute: at this stage the Court is examining whether the provision in question, interpreted in accordance with the ordinary principles of construction, place a burden on the criminal defendant? If the answer is in the affirma' ive, the Court has to find out whether the | urden is a legal or an evidential burden? If it be found t)-at it is an evidential no further inquiry or :nalysis need be made about compatibility with sect. 42 (2) (f) (iii) of the Constitution. ‘owever, if it is a legal burden, the court must mo = to stage 2 to assess the question of ‘| ompatibility. -econd is the justification of the reverse onus stage: at t is stage the Court examines whether the _ rovision, the subject matter of the inquiry, or the sectic .. in question serves a legitimate aim and “zhether it is proportionate to that aim? If the answer + in the affirmative, the provision is an «ceptable qualification to the presumption of innocence The defendant will then bear the burden .£ proof on the matter in question, although to a lowe standard of proof than the prosecution (namely the balance of probabilities). If the answer is in ‘he negative, the court must then move to iage 3. Vinal and third stage is reading down the provision: at it's stage if the reverse legal burden cannot be justified can the Court “read down” the burden to an evidential one, using section 11 (3) of the Constitution? If the Court can, it should do so. If it canno: then the Court should make a declaration of incompatibility of the provision under section 5 of the Constitution. Interpretation of the statute (Section 32 (2) (b) and («} of the Corrupt Practices Act) As this Court understands it, the interpretation of a statute is the process of attributing meaning to the words used in a document, be it legislation, statutor instrument, or contract having regard to ihe context provided by reading the particular provision or provisions in light of the document as 49 10 15 20 25 a whole and the circu “ances attendant upon its coming into existence*’. It is 2 ‘his interpretation of the statute stage that ‘1is case was dismissed in the Court below. The Court b: ‘ow, at paragraphs 8.8 through to 8.9, hel¢ as follows: “The unanimous judgment of this Court is that Section 32 (2) (c) of the Corrupt Practices Act injures no; ovision of our sacred law. The provision in question do-:s not place a legal burden on the Applicant in this matter. All it is asking the Applicant to do is to give a satisfactory exp/anation as to how he acquired the properties listed in the charge sheet. The standard is on a balance of probabilities. In our reasonec judgment, the Applicant in this matter, once a prima facie case has been established, must give a reply otherwise he risks the possibility of beinz convicted by the trial court ifhe emains silent. This in our view creates an evidential bu: jen and not a legal burden on the / splicant. The standard once again is on a scale of prob: »lities.” This Court agrees wit]. che finding of the court below that the section does 1 ot place any legal burden on the Appella ¢. In this Court’s judgment, the section does not take a\ ay the duty of the State or the burden o: the prosecution to prove its case against an accused :.cyond reasonable doubt. In any event, u :cer both section 32 (2) (b) and (c) the State has to resectively establish prima facie that the «ccused is ‘in control or possession of pecuniary resources or property disproportionate to his >cesent or past official emoluments or other known scu ces of income,’ or ‘in receipt directly or indirectly of the benefit of any services which he may reasonably be suspected of having re: eived corruptly or in circumstances which amount to a: offence under the Corrupt Practices Act’. Put differently, upon examining both parties’ submissions on reverse onus provisions, while gencrally correct, it is nonetheless apparent that there is some measure of misunderstanding of what reverse onus provisions really are and in what circumstances they can be identified especiai!: in respect of legal burden of proof. As this Court understands the law, not every provision that ¢> ;ects an accused to do something to rebut a fact can be said to be a reverse onus provision and th«reby creating a legal burden. In some instances, the siatutory provision merely provides a defence for an accused to avoid a conviction. In such cases, the law still imposes on the prosecution the burden to prove their case beyond reasonable doubt but simultaneously © See Okiva Omtatah Okc si & 2 others v Attorney General & 4 others [2018] eKLR. 50 10 15 20 25 presents the acc: ed the means by which to raise a doubt on the esta’ ‘ished facts to avoid a conviction. As it vere. what always seems important is a close examin: ion of the provision in question and ask:.ig whether in its purview it clearly creates a presump ion of the existence of certain facts withi.i prevailing states of affairs, or merely provides a possib'e defence to an accused to avoid a convic:ion, As will be demonstrated, this Court believes that s ction 32 (2) (b) and (c) of the Corrupt Pr: ctices Act does not create a reverse onus provision in re spect of legal burden of proof but merely affords an accused a possible defence against conviction after the prosecution establishes the existence of certain facts and circumstances which without a defence being mounted, would still be required to scale the burden of proof beyonc reasonable doubt if a conviction is to t= secured. Put differently, there is need to isolate the a tual offence created by section 32 (2) (b) and (c) of the Corrupt Practices Act and determine whai ts required of the State in order to estabi'sh a prima facie case against an accused before he is called upon to mount a defence; and wi: ther the accused is in the circumstances required t disprove an essential presumed elemen of the offence created. Thereafter, there is the further ned to determine whether the provision pr -umes the accused to be guilty outright if he elects t: remain silent without requiring the evi-‘ence to be provided by the State, in order to ascertai:: whether the evidence crosses the threst 11d of guilt beyond reasonable doubt, before a convicticn is entered. In the case of R v Hunf! , Lord Griffiths stressed the importance of {ree factors in deciding whether Parliame it had intended to place an onus on the accused. The fi: st was the object of the legislation: what was the mischief at which the Act was aimed? Th: second was practical - considerations af!ecting the burden of proof, such as the relative ease or <ifficulty of proof: how difficult would it be for the prosecution to prove the matter in question ard how easy would it be for the accused tc do so? A court may be more likely to classify a provision as a statutory defence if it would not b« difficult for the defendant to discharge the burden of proving it. The third was the seriousness of the offence. This offered a check on any expansive tendencies of the first two factors towards r-versing the onus. According to Lord Griffiths, it helps io resolve any ambiguity in favour of the ¢«-fendant where the issue of interpretation is one of rea! cifficulty. 3111987] A. C. 352 31 10 a5 20 25 30 DETERM ' “{ATION Now, looki::g at section 32 (2) (b) and (c) of the Corrupt Practices Act, the first point to note is that the offt-nce created by these provisions stems from the investigation envisaged in section 32 (1) (a) threugh (c), by which the Anti-Corruption Bureau is authorized and empowered to investigate any public officer suspected, on reasonable grounds, io exhibit the circumstances outlined thereunder. Where the investigation by the Anti-Corruptio: Bureau leads to a conclusion that a public. officer under investigation does disclose the circumstances envisaged in section 32 (1) (a) through (c) of the Corrupt Practices Act, such public officer may then be charged with the offence of “having or having had under his control or in his poss:ssion pecuniary resources or property re. sonably suspected of having been corruptly acquired” i:uder section 32 (2) (c) of the said Corrur:! Practices Act. As this Co: + sees it, the first part of section 32 (2) (b) and (c) of : ie said Corrupt Practices Act creates anc /fence that is complete in itself without any need for a: accused person to prove his innocence. 4nd, in line with the Woolmington principles, the bi den of proving that offence remains thr ughout on the prosecution. Similarly, the standard of p cof required from the State is proof beyor d reasonable doubt. In this Court’s view, what this means is that where the prosecution provides sui ficient evidence to establish a prima facie case that an accused has or has had under his contro! ic in his possession pecuniary resources or property r¢:sonably suspected of having been corry; ‘ly acquired, a court will cail upon an accused to enter a ‘iefense. In the circumstances, he may ele. t to exercise his right to remain silent under section 42 of the Constitution or give evidence ir: his defense. Should an accused elect to remain silent, ihe Court still has to evaluate the availab!e evidence and weigh whether the totality of the evidence available satisfies and exceeds the threshold of reasonable doubt to justify a conviction. The second part of section 32 (2) (c) of the said Corrupt Practices Act then merely allows an accused person to provide evidence that circumstances exist by which he was able to “maintain such a stan-tard of living, or how such pecuniary resources or property came under his control or his possession, or how he came to enjoy the benefits of such services,” and nothing more. The reason this Court thinks the mischief at which the section was aimed at was on the ease of proof and peculi:r knowledge that the criminal defendant has. By wa’ of an example, similarly, a defendant - ‘ho has a licence to drive or to sell intoxicating liquor c: 1 easily produce it if required. 52. 10 15 20 25 It ise sier for him to do this than for the prosecution to prove “xe negative proposition that he did not hi ea licence. In such a case the prosecution would have » adduce evidence such as registers of lice nce-holders, or perhaps evidence that the defendant fail «d to produce a licence on demand. The firmer may entail trouble and expense, the latter may result in conflicts of testimony or disputs whether non-possession is a reasonable inference fron. non-production. It should be noted thoug : that the defendant does not have peculiar knowledge of his possession of a licence; that know’ edge is available to the prosecution from evidence such as registers, but it is just more burde:isome and costly to locate it. On the other hand, the defe:idant does have peculiar knowledge of his state of mind at the time of a criminal act; he has privileged access to his intention, know edge or belief. The question that arises though is: does it follow from his peculiar knowledge that ii is easier for him to prove absence of a criminal intenticn than for the prosecution to prove its pr. sence. A dictum of Clarke L. J. in the Divisional Court :n Sheldrake v DPP*’ is instructive in an: vering this question. He put it thus: «there are very many aspects of the criminal lav in which the state of mind of the accused is of crucial importance but where the burden « ’ proving it is on the prosecution™”. The significance of the defendant’s peculiar knowledge of certain facts is not therefore that it supports the imposition of a legal burden on the defendant to pi ove those facts. Peculiar knowledge can a best support the imposition of an evidential burden 1» raise the issue of those facts, in circu istances where the prosecution would not otherwise kn: w7 in what form a defence based on those ‘acts might arise. It is for this reason that the defence be:-rs the burden of raising the issue of comn:on law defences such as self-defence or duress. It would not be reasonable to expect the prosecution to negative such justifications and excuses without being made aware of the facts relied on to support them, and in most of these cases it is only the defendant who knows those facts. This Court finds that the same proposition can be made about section 32 (2) (b) and (c) of the Ccxrupt Practices Act. The presence of the words ‘unless ]:2 gives a satisfactory explanation to the court_as to how else he was able to maintain such a stvnidard of living, or such pecuniary resources or property came under his control or his possessic::, or he came to enjoy the benefits of such services, he shall be guilty of an offence’ does not entail the defendant bears the legal burden 32 (202 3] 2 Cr. App. R. 206 33 Tbic. 222 33 10 15 20 25 of proof to those facts. What the second part of sectior: “2 (2) (c) of the Corrupt Practices Act does is to provide a possible defence to the accused. On bei: x made aware of such possible defence the prosecution can then negative such a defence. Either w vy, the accused person is not called upon to disprove an essential element of the offence created. That burden remains on the prosecution throughout. Looked at from this perspective, it can le concluded that section 32 (2) (c) of the Corrupt Practices Act does not reverse the legal bur en of proof or shift such burden onto the accused. As pointed out earlier, if at this point of interpreting a section it is found that the impugned provision does not place any legal burden on accused }erson and concludes that the section rather places an evidential burden there is no need for furth + inquiry or analysis about the provision’s compatibility with section 42 (2) (f) (ii) of the Const'tution. As stated above, evidential burdens are regarded as compatible with the presumption of inr »cence**. Of course, the Court may proceed io discuss justification and proportionality of the evid. tial burden in order to justify the same in tespect of section 44 of the Constitution. In addition, |» the context of this case citing and relying on The Attorney General vy Hon. Friday Anderson s imbe and another, this Court agrees with the Court below that: “It is not out of proportion to require them to «xplain where they flout set safeguards and standards and thereby cause to the public and/: ~ confer benefits of themselves or others to the detriment of public interest’. The Supreme Court of Appeal in The Attorney Gen ral vy Hon. Friday Anderson Jumbe_and another, further stated that: “Tt is an open secret that, in this Country, since the advent of multiparty political system, corruption has reached epidemic proportions. Sadly, the public sector has not been spared. It is a fair comment to say that the public secior is deeply involved in corrupt practices. The Corrupt Practice Act was passed with a \jew to curb the malpractice. The preamble expressly states that it is an Act “to make consprehensive provision for the prevention of corruption”. Clearly the provision of the Penal Code became insufficient to address corruption. It is incumbent on the courts theref ire, to assess the sufficiency of the objective 34 See R. v DPP Ex p. Kebetine [2000] 1 Cr. App. R. 275 at 324 (Lord Hope); R v Lambert [2002] 2 A. C, 545 54 25 30 of the restriction or limitation of a righ to justify overriding the Constitution. When sufficiency _is established then the co. t must examine the proportionality of the limitation.” (Emphasis supplied by this Cc urt) On the other hand, as to the Appellant’s argumert that the Court below erred in law by hoiding that it was bound by the decision of the Supreme ( ourt of Appeal in The Attorney General v Hon. Friday Anderson Jumbe and another, is miscorceived. The Appellant failed to distinguish the matter in question in The Attorney General vy Hen. Friday Anderson Jumbe and another from the case under consideration in the present one before us. This Court finds that the matters in the case of The Attorney General v Hon. Friday And-rson Jumbe and another are different from the matters in the present case. The Court below did ot suggest that it found section 32 (2) (b) and (c) of the Corrupt Practices Act constitutional be-ause it was bound by The Aftorney General v Hon. Friday Anderson Jumbe and another. Rat) er, it found that section 32 (2) (b) and (c) of the Corrupt Practices Act was justifiable limitation c ‘the Appellant’s right to be presumed innocent and that the limitation fell within the ambit of re:‘rictions anticipated in The Attorney General v Hon. Friday Anderson Jumbe and another. Thi: Court also finds that section 32 (2) (b) and (c) of the Corrupt Practices Act was justifiable lim:iation of the Appellant’s right to be presumed innocent and that the limitation fell within the a. :bit of restrictions anticipated in The Attorney General v Hon. Friday Anderson Jumbe and anv ther and accordingly uphold the decision of the court below. As regards the first ground of appeal, where i Appellant challenges the High Court’s dicta following and applying The Attorney General v lion. Friday Anderson Jumbe and another, this Court would like to advise Counsel that he must «sist from overly relying on case law and statutes from other. Commonwealth jurisdictions on the basis that the wording of those constitutions is similar to Malawi’s. It is this Court’s conside:cd view that this ground of appeal is merely academic as the Appellant’s case does not turn on its determination since it lends no weight whatsoever to the Appellant’s case. The pronounc cement on it by the court below was no more than obiter dicta emphasizing the importance of relyir:, on locally generated jurisprudence rather than relying on foreign precedents especially in cases covered by local statutes and local authorities. In sum, we therefore uphold the decision of the court below and dismiss this appeal in its entirety. 10 20 ORDER Appeal disallowed with each party to bear own costs. Judgment of the court below to stand. Judgment delivered by Justice A. D. Kamanga SC, JA, I have had the opportunity to read in advance tle judgment of my Lord Justice of Appeal F. E. Kapanda SC to be delivered in this matter with which I agree. I respectfully adopt all his reasoning as mine and J also disallow the appeal in the manner put in the judgment of this Court as set out above. Pronounced and delivered in Open Court at the { upreme Court of Appeal, sitting in Blantyre this 17" day of May 2022 HONOURABLE THE CHIEF Ji ds FICE A. K. C. NYIRENDA, SC 37