R v Matemba (Criminal Cause 5 of 2023) [2023] MWHC 31 (11 July 2023)

(sy shy i LAK IN THE HIGH COURT F MALAWI LILONGWE DISTRICT REGISTRY FINANCIAL CRIMES DIVISION CRIMINAL CAUSE N O. 05 OF 2023 BETWEEN THE REPUBLIC -AND- REYNECK MATEMBA CORAM: HON. JUSTICE VIOLET PALIKENA-CHIPAO Ms. Lapozo/Mr. Sambani, Counsel for the State Accused Person Present but unrepresented Ms. Mkochi, Court Clerk Chipao, J RULING office contrary to section 25B (1) of the CPA as read together with section 34 of the CPA and failure to declare interest by a public officer contrary to section 25D(1)(a) of the CPA as read together with section 34 of the CPA. 1 (1) No prosecution Jor an offence under Part IV shall be instituted except by or with the written consent of the Director of Public Prosecutions. (2) Where under subsection (1) the Director of Public Prosecutions withholds consent to any prosecution under this Act, he shal]— a. provide to the Director reasons in writing, devoid of any consideration other than those of fact and the law, Jor the withholding of consent: and b. in addition to Providing reasons to the Director, inform the Legal Affairs Committee of Parliament of his decision within thirty days of the decision. be called upon to plead (6) No proceedings for an offence under Part IV shall be commenced after the expiry of twelve months Jrom the date the written consent of the Director of Public Prosecutions is given. “i 10. 11, 2022. The Corrupt Practices (Amendment) Act, 2022 was passed in Parliament on 28 July 2022 and came into effect on the 13" of September 2022. The Accused Person further argues that according to section 14 of the General Interpretation Act, the repeal of section 42 notwithstanding, the Position of the law is that unless the contrary intention appeared, the ACB was stil] legally bound to obtain written provides as follows; No law made by Parliament shall come into force until it has been published in the Gazette, but Parliament may prescribe that a law shall not come into force until some later date after its publication in the Gazette Section 9 of the General Interpretation Act is also instructive on the issue. The section provides as follows; (1) Subject to subsections (2) and (3), an Act assented to by the President Shall come into operation immediately on the expiration of the day next Preceding the day on which it ig published in the Gazette. (2) Where it is enacted in the Act, or in any other written law, that such Act or any specified day, the Act or, as the case may be, such provision shal] come or be deemed to have come into operation immediately on the expiration of the day next preceding such day, (3) Where it is enacted in an Act, that such Act shall come into operation on such date as may be appointed by any person, such person may, by notice or order, bring the Act into operation on a day specified in the notice or order, or may by the same or by different notices or orders bring different Provisions of the Act into operation on different dates. My reading of the two sections is that a law comes into force either on the expiration of the According to the Accused Person, there is no provision in the Corrupt Practices (Amendment Act) providing for a date as to when the Act shall come into Operation and that as such, the Act came into operation on 13" September 2023 upon being published in the Gazette. It is therefore the argument of the Accused Person that there is no retrospective 3 12. 13. 14, I. be the case. The State has further argued on the authority of section 83 of the CP & EC, section 42(1) of the CPA and cases R y, Goldan Lambert [2009] EWCA Crim 700; DPP y. Bull (1994) 4 All ER 411 and R y, Welsh (Snr) and 17 Others [2015] EWCA 1516 that proceedings CPA which provides as follows; (1) No prosecution Jor an offence under Part I V shall be instituted except by or with the written consent of the Director of Public Prosecutions. (4) Notwithstanding the Provisions of subsection (1 ), a person may be arrested and 1s obtained, the charge shall be explained to the person accused but he shall not be called upon to plead. 17, 18. lo, 20. 21 In line with section 42(2) of the Constitution, the law demands that not later than 48 hours, an arrested person must be brought before a court of law to be told of the reasons of his arrest. We have brought the Defendant so that he is informed of the reasons for his arrest but not to take plea. Section 42 of the Corrupt Practices Act, is subsection (2)(b) which provides as follows; Every person arrested Jor, or accused of an alleged omission of an offence shall, in addition to the rights which he or she has a detained person, have the right ... as Soon as it is reasonably Possible, but not later than 48 hours expires outside ordinary court hours or on a day which is not a court day, the first court day after such expiry, to be brought before an independent and impartial court of law and to be charged or to be informed of the reason Sor his or her further detention, Jailing which he or she must be released. As rightly argued by the Accused Person, the reasons for bringing an accused person to court under section 42(2)(b) of the Constitution is to either charge him or to inform him of Reasons for arrest need to be furnished at the time of arrest. The duty of to inform an accused person of reasons for his arrest is immediate upon arrest. The State does not need to wait until the time the accused will be taken to court to inform him of the reasons of his arrest. This is clear from section 42(1)(a) of the Constitution which provides as follows; Every person who is detained, including every sentenced prisoner, shall have the right to be informed of the reason Jor his or her detention Promptly, and in a language which he or she understands. . The fact that the Accused Person was taken before the court in this case did not mean that called upon to plead. So, the question to ask is whether when the Accused Person was brought before the court on 5‘ August 2022, the State had instituted the proceedings prosecution of his case. 22. from the Attorney General. A plea before venue hearing took place on 28" June 2007. Permission of the Attorney General was granted on 3™ August 2007 and Accused was (1) This section applies to any enactment which prohibits the institution or carrying on of Proceedings for any offence except (a) with the consent (however expressed) — of a Law Officer of the Crown or the Director; (b) .... and so applies whether or not there are other exceptions to the prohibition (and in particular whether or not the consent is an alternative to the consent of any other authority or person). (2) An enactment to which this section applies — warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence; and (b) shall be subject to any enactment concerning the apprehension or detention of children or young persons. proceedings relates to the time at which the person comes to court to answer the charge. In the Goldan Lambert Case, the court referred to earlier decisions which tackled the question of when are proceedings considered instituted in cases requiring consent in the light of section 25 of the Prosecution of Offences Act, 1985 including the case of R y Bull (1994) 99 Cr. App. R. 193. 24. Section 25(2) of the Prosecution of Offences Act is similar to our section 42 (3) of the CPA which provides as follows; Notwithstanding the provisions of subsection (1), a person may be arrested and charged with an offence under Part IV or a warrant for his arrest may 6 27. 28 29, 30. be issued and executed, and any such person may be remanded in custody or on bail, notwithstanding that the written consent of the Director of Public Prosecutions to the institution of a prosecution for the offence with which he is charged has not been obtained, but no such person shall continue to be remanded in custody or on bail for a period longer than fourteen days on such charge unless in the meantime the written consent of the Director of Public Prosecutions aforesaid has been obtained of the CPA, it is this court’s conclusion that for purposes of provisions requiring consent to prosecute, proceedings are deemed instituted when the Accused is called to answer the charge not simply when the charge sheet is presented before the court. The court is aware that under section 83(1) of the CP & EC, proceedings can be commenced by bringing before a Magistrate a person who has been arrested without a warrant or by a public prosecutor or police officer signing and presenting a formal charge to a magistrate. However, considering that under section 42 of CPA, the law allows such procedural steps like arrest, charging and bringing to court for remand or bail to take place prior to obtaining of consent without rendering the processes void, it is this court’s understanding that such steps do not amount to instituting prosecution. This is why under section 42(5) of the CPA, if no consent is obtained, an accused person cannot be called to plead. . In view of the foregoing, it is this court’s view that that the prosecution of the accused had On the issue of consent, there is no dispute that the requirement to obtain consent of the DPP before instituting criminal Proceedings is no longer required, the provision which provided for the requirement having been repealed. The issue is whether the effect of such an amendment in the law can be applied retrospectively. In relation to the Accused, the question is whether the fact that his case was brought to court in August 2022 which is before 13" September when the law came into force mean that consent should not be obtained. In as far as the prosecution of the accused is deemed not to have been instituted when the Accused Person appeared before the court on 5 August 2022, then the requirement for consent in as far as the CPA was concerned prior to 13% September 2022 did not arise as the Accused Person was not called to answer the charge(s) against him. As he has only been called to court to answer the charges post 13% September 2013, the requirement for consent only arose at this time when he was expected to take plea and not time earlier than that, With this reasoning, since the requirement no longer exists now, it is not necessary for the application of the law therefore does not arise in this regard. Bas 33. 34, 35. Republic v. Kettie Kamwangala conforms to section 14 of the General Interpretation Act that unless contrary intention appears in the law itself, all proceedings commenced under any repealed provision shall be continued under and in conformity with the provisions so repealed and that where a written law repeals any other written law, the repeal shall not affect the previous operation of any written law so repealed. The Accused referred to section 14(1)(a) of the General Interpretation Act which provides as follows; Where a written law repeals and re-enacts with or without modification, any However, in view of this court’s reasoning that the prosecution of the Accused person had not been instituted until the 2g of June 2023, the prosecution of the Accused person is not caught by the provisions of section 14(1)(a) of the General Interpretation Act, in as far as consent for prosecution provisions are concerned, I will proceed to deal with the issue whether the law can apply retrospectively, the accused having been arrested and brought to court prior to the amendment of the CPA which saw the repeal of the provision requiring consent. In the case of Mwalwanda v. Standbic [2007] MLR 198, the court stated the law on retrospective application of statutes as follows; I must say that the law is indeed settled that a statute shall not be construed to have retrospective operation unless such construction appears very clearly in the terms of the statute or it arises by necessary and distinct implication. The rule against retrospectivity of statutes or laws is Jundamental rule of law but one that is not rigid or inflexible. This means therefore that there will be situations where a law or qa statute may be construed to have retrospective operation. That a Statute or a law may have retrospective effect is not a rule but an exception to the general rule. Being an exception to the general rule therefore there must be clear terms on retrospectivity or it must arise by necessary or distinct implication. When the matter went to the Supreme Court on appeal in Stanbic Bank Limited y, Mwalwanda [2008] MLR 361, the Court affirmed the decision of the High Court. This is what Tambala JA stated at page 363; 38, 39. 40. of statutes which affect mere matters of procedure. Similar views were taken in the case of Blyth v. Blyth [1966] 1 ALL ER where Lord Denning stated as follows; 42. 43, 44, 45. So far as the administration of justice is concerned with the application of conditions of the application of the one to the other. The requirement prescribes the procedure that has to be taken before proceedings can be been given under subsection (1). My understanding is that although under subsection 1, no prosecution can be instituted Delivered in Open Court this 11 Day of July, 2023 at Lilongwe. rt here V. Palikena-Chipao JUDGE 10