The People v Lt General Wilford Joseph Funjika (HPR/02/08) [2008] ZMHC 4 (9 March 2008)

- J1 - I N THE H IGH COURT FOR ZA_MBIA H OLDEN AT LU SAKA (Criminal Rev i sionary Jurisdictio.n) HPR/02/08 BEFORE HON. MR. JUSTICE PHILLIP ·MUSONOA I ~ - __ ._..,._,,- f ) f I 1·H l I • • ..)" r J ..,,. THE PEOPLE - VS LT GENERAL WILFORD JOSEPH FUNJIKA For the Convict: Mr. M. Mainza of Mainza & Co. For People: Mr. M. Nchito of MNB Legal Practitioners Cases Referred to: 1. 2. The People vs Peter Kalyombwe 1978 ZR 265. Aaron Munangwa vs The People 1978 ZR 293. Legislation Referred to: 1. 2. 3. Criminal Procedure Code Chapter 88 of the Laws of Zambia The United Kingdom Criminal Justice Act of 1991 The Anti-Corruption Commission Act No.42 of 1996. JUDGMENT This matter came before me for review of the sentence pursuant to section 337 of the criminal procedure code, as the convictions for two counts of cormpt practices by public offices, contrary to section 29(1) and section 41 and - J2 - abuse of authority to section 37 (2)(a) as read with section 41 of the Anti Corr_~ption Commission Act No.42 of 1996 _have not been contested by way of appeal against the learned Principal Resident Magistrate's conviction, whose Judgment I have read in detail and the convictions were competent. The empowering section is couched in these terms: "The High Court may call for and examine the record of any criminal proceedings before any subordinate court, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court." • Under section 338, this court has powers to vary or reverse the decision of the subordinate court. The court if it thinks a different sentence should have been passed, quash the sentence passed by the subordinate court and pass such other sentence warranted in law under section 339, no party has a right to be heard, either personally or by advocate before me. However, I exercised my discretion to hear the convict's and the state's advocates. In my view that was more conformable to the 'Open Justice Principle . Mr. Nchito submitted that he was pleased that the High Court had taken interest in the matter as it was of public importance since it involves a conviction of a senior officer who was a fiduary on behalf of the Zambian people who was convicted of corruption which amounts to an unfair tax on the people of Zambia. In the 30 years existence of the Anti-Corruption Commission there has been no developed jurisprudence on various facets of the offences. There has been a distortion which may be perceived as unfair and unjust. Further, the Act, had not in the past visited high ranking members of society, though it is notorious that corruption is rampant. It is only those convicted of petty corruption who have received stiff penalties. For the first time we have grand corruption. Mr. Nchito concluded his submission by agreeing that sentencing is a complex issue. . n . Mr. Mwanza for the convict, Mr. Malnza submitted that having heard from his colleague. He did not submit on the legality, proprleteness, and correctness of the court below. He went on that as the record will show his client was sentenced to two years suspended and an order of forfeiture was made in the sum of £15,000 which has been complied with. The court below acted within the • law when suspending the sentence and that was a proper exercise of its discretion to impose a custodial sentence or to suspend. In aid to his submission Mr. Mainza cited The People vs Peter Kalyombwe1 in which Silungwe 0 Said: • • "If on the other hand it is intended t impose a prison sentence, the imposition of that sentence is in the discretion of the court, which may select a prison of up to five years and may suspend whole or part of it" The Supreme Court in Aaron Munanqwa vs The Peopl& said 'The power to suspend the whole or part of the sentence is the power given to the courts to keep a person out of prison by providing him with an incentive or an additional incentive not to repeat the offence." He submitted that there was nothing irregular or improper in the imposition of the sentence under review. The two offences have not been dassifled as felonies in the Anti Corruption Act. - 14 - I will first breakdown the types of corruption in their order of seriou sness . . - Type (i) being less serious, while type (v) being the most serious. {i) An old woman or man traveling and offers a bus conductor some money in ordf!r to secure a seat on the bus. Obviously it may be that she has been told she can only get a seat on the bus by offering a bribe; technically this is corruption, • but Jess injurious to society;. • {ii} Solicitation of money from a person whose title is being typed by a typist at lands or a constable asking for lunch money at the road-block. I characterize this as corruption propelled by hunger. This may not attract a custodial sentence, {iii} Where a public official abuses his power by not following regulations and there is no financial gain and such act was not intended to benefit him financially; it may be because of ignorance, or carelessness this as well may not attract a custodial sentence, {iv} Where a public officer asks for let us say an amount like K200,000 or more in order to do or omit to do something and such omission or commission is conditioned upon such payment. Such corruption makes the doing of business expensive in Zambia. It deprives Zambians of I ... - JS - • • resources as they pay For services which are supposed to be Free such a public oHicer wants to get rich quickly, This should ordinarily invite a custodial sentences. {v J Abuse of office and solicitation For bribes, which ; lead to the inflation of prices at which Goods and services are purchased. Payment For goods not delivered, For projects not properly executed and government looses billions oF kwacha. This is done by public officials we/I-paid and is propelled · by greed. This is grand corruption and society does not get value for its money. This should invite a custodial sentence. I have had the opportunity of reading the two Judgments cited by Mr. Mainza. While I agree that magistrates and Judges have discretion in sentencing the convicted persons where there are no minimum sentences set by the Legislature, the overriding objective is that the sentence must be fit the crime . In Munangwa's case, where he was convicted of manslaughter on his own plea, after finding his wife in his house with another man and the High Judge senctenced him to three years suspended one year, the Supreme Court was of the view that such was not a crime that could be repeated as he had no mens rea therefore it was not necessary to suspend the sentence because that is not an offence he could be expected to repeat. In Kalyombwe's case, he was convicted of being in possession of one obscene magazine and four obsence pictorial documents, the magistrate imposed K200 while the minimum five was Kl,000. Silungwe 0, upon review .• .. - 16 - sentenced the whole sentence for two years as the convict had no means to pay the fine. In Managwa's case, though the maximum penalty was life, the absence of mens rea and the circumstances were mitigating but he still received a custodial sentence. In Kalyombwe's case the Legislature provided for a fine. The authorities deal with crimes that were not carefully planned and neatly executed. I should not be misunderstood to say the learned Principia Resident Magistrate was not well-meaning, but sentencing is a complex subject, there is therefore need for this court to fashion sentencing principles for the lower courts. It has now been accepted in Zambia . and globally that, corruption is not only morally repulsive, but has devastating effects on the development of societies and economies. It diverts resources from productive sectors to areas of wasteful consumption. Corruption renders hard work an exercise in futility. The 'Grand Corruption - mongers' do not share the agony and the anguish of those who live on the margins of our society. The point that is being made is 'grand corruptiod incapacitates government from providing society's basic social needs like health care, which may result in the poor dying. Such is the broadened view of corruption in Zambia and some developing countries, which view has to be taken into account when sentencing I have borrowed the wording of The United Kingdom Criminal Justice Act 1991 section 2(1) which states a court shall not pass a custodial sentence on an offender unless it is of the opinion • (a) that the offence, or the combination of the offence and one or more offences associated with it, was so serious that only such a sentence can be justified for the offence. Could it therefore be said, that in this particular case which falls in the category of 'grand corruption,' where goods imported for the men in uniform I j i I . .. ,. ·' - J7 - had the price inflated and the convict was paid £15 ooo wh·ch h h e as returned to government, tho~gh it was a fraction of the variance between the market price , of goods and the inflated price, which money the people of zambi~ has lost for good. The Auditor-General 's report has indicated that abuse of public funds and corruption are on the increase. Would it not be compelling to impose deterrent sentences. The report indicates a culture of impunity, meaning some controlling officers feel they are beyond the pale of justice. In the circumstances appropriate sentences may psychologically boost the corruption fight, as • corruption now is in public glare. Corruption yesterday, today or tomorrow is evil and pernicious, whether in the Judiciary, Legislature or Government, it hurts the poor most and must be pursued with unrelentless vigour. Though the medical condition was alluded to in the court below and in this court no medical report was tendered in evidence. Health of an individual may be mitigatory, to what extent is a troubling question. For example it is a notorious fact that the majority of those who commit heinous sexual offences are afflicted with HIV/AIDS and sleep with young girls in the belief that they are cleansing themselves of the disease as ill-advised by the witchdoctors. The Legislature has imposed a 15 year hard labour sentence, will the courts impose less than 15 years, because a convict pleads to be infected with a terminal disease, when society is so indignant about these offences. The point that is being made is that sickness as a mitigating factor has been diminished by Legislative incursion in sexual offences. Why and when should it diminish the seriousness of otherwise a serious offence?, my view is that little weight should be attached. I agree this particular convict has shown extreme remorse and though this was not canvassed, has loyally, diligently and honestly at one time served his motherland, but, 'Grand corruption is so serious an offence. I set aside the suspended sentence, and impose what criminologists call a 'short sharp - 18 - sentence,' which is reformative and a deterrent to other controlling officers and those public officers especially ~hose wh<? procure goods and services for government, that courts will not condone such conduct. It is not pleasant that the other co-adventurer escapes punishment. I would urge government to ban such companies to supply goods and services to Zambia and seek their blacklisting in their home countries. It is these 'international crooks who manipulate senior public officials and make them end this way. The sentence I am about to impose has taken into account the convicts attitude towards the offence, the amount involved. The sentence therefore is by all standards the minimum I can impose. Otherwise 'Grand Corruption requires heavier penalties as section 41 indicates ordinary magistrates should impose a far more higher sentence in 'Grand Corruption'. Section 41 is couched in these terms: Any person who is guilty of an offence under this part shall be liable:- (a} upon conviction to imprisonment for a term not exceeding twelve years; (b} upon a second or subsequent conviction, to imprisonment for a term of not less than five years but not exceeding twelve years, and (c} in addition to any other penalty under this Act, to forfeiture to the state of any pecuniary resource, property, advantage, profit or gratification received in the commission of an offence under this Act. • • The point is, depriving the convict the benefits of his corruption is a matter of course and this cannot be a mitigatory factor as it is part of the - .1 9 - mandatory order the court should make after conviction as the legislature has used the word 'shall'. The convict shall serve 9 months IHL WEF 10/03/08. It Is ordered, a medical examination by UTH medical experts be conducted before he can formerly start serving the sentence. Lastly but not least I would like to thank Mr. Nchito and Mr. Mainia for the professional manner they conducted themselves, it reminded me of the House of Lords saying when discussing legal ethics that, "Judges and Lawyers are ministers in the Temple of Justice'. They should therefore conduct themselves in a calm manner despite the emotions, the matter may raise . This case is a turning point in our Criminal Justice history especially in the corruption fight, leave to appeal to Supreme Court against sentence is granted. DELIVERED IN OPEN C~ :c - DAY OF MARCH 2008 PHILLIP MUSONDA HIGH COURT JUDGE • •