Challenging sentencing considerations in Malawi's cashgate scandal

Depending on the sources you consult, Malawi’s infamous Cashgate corruption scandal involved between MWK236 billion and MWK577 billion of public funds. This wholesale looting of government money was made possible by loopholes in state financial systems, exploited by a wide range of people over a number of years. While trials are continuing, the most recent accused to be sentenced was a former top official in the ministry of tourism, Leonard Karonga. Carmel Rickard takes a look at some of the difficult challenges faced by the court in deciding his punishment.

YOU don’t have to be an expert on Malawi politics or up to date with its legal quirks to see that in the sentencing case of R v Karonga something very unusual is going on.

The judgment is a key moment in Malawi’s Cashgate scandal, the moment when a man who has become a crucial witness for the state, former assistant director in the ministry of tourism, Leonard Karonga, faces the ugly truth that he will be spending time in jail for his role in the ongoing scandal that has almost bankrupted the state. Despite his considerable help to the state in giving evidence against fellow Cashgate collaborators, he can no longer avoid his own punishment.

As she starts her decision, Judge Fiona Mwale spends time building up the significance of what is happening in court. “There are a number of striking features about this case,” she begins. “First and most glaring, is the sheer magnitude” of the figures involved in the offences of which Karonga has been convicted: the three charges alone account for well over MWK 4,5 billion (more than USD 6m).  

There is an “additional striking aspect”: Karonga was convicted in August 2015, yet it had taken more than two and a half years for sentence to be finalized and passed on the accused.

“Equally remarkable,” she goes on, “is the fact that this is the first high profile case in which the cooperating defendant has appeared for sentence after executing a witness assistance agreement” and after giving evidence in court as required by the agreement. Karonga, she notes, not only pleaded guilty to the offences with which he was charged “but he has also rendered substantial cooperation to agencies of the state prior to his sentencing.”

She calls it a “significant novelty (that) manifests itself in this case”. As the state put it in argument, “His sentencing raises novel issues in Malawi sentencing jurisprudence”. By all accounts Karonga has sung sweetly, for the state freely concedes that he has provided information previously unknown to the state and in doing so has even further incriminated himself.

The judge says the state hopes she will use the opportunity of sentencing Karonga to give guidance on how the courts in Malawi view “plea bargaining”. This is urgent, according to the state, for a “future framework for the operation of negotiations with ‘cooperating defendants’.”

In its submissions the state has already stressed the importance of Karonga’s evidence and how it helped investigations “The state acknowledges his fortitude in delivering his side of the agreement, in the face of pressure from third parties in a very stressful situation.” The state hopes that Karonga’s example will “encourage others to break ranks and disclose criminality of themselves and others, in the … expectation that their contribution to confronting the forces of organized crime will be reflected in their own sentences.”

“Disruption and dismantling of organized crime groups depends upon participants seeking redemption and leniency in coming forward, at personal risk, to assist the law enforcement and prosecution agencies in their task. In this … unique case, the state hopes to have objectively assisted the court in its difficult role of meting out the right sentence”.

It is a tall order: so many elements to cover in one decision, including this request for guidance by the state on the impact of a “plea bargain”, along with concern about how the public will view any lesser sentence resulting from the state’s request for a more lenient sentence because of Karonga’s help. Cashgate, says the judge, has “heightened public interest in the conduct of the judiciary and the prosecutorial organs of the of the state in these serious fraud cases (and so) it is very important for the purposes of transparency that the reasons for seeking or imposing a sentence lower than usual are clearly set out.”

As a result of all these considerations it is a lengthy judgment, that carefully explains each element of her decision and lays out for the state how a court will approach the question of “arrangements” it might make with an accused.

In a “plea bargain” case, the court must be certain that the state has been fair and transparent and that the fair trial rights of the accused person have not been compromised. She thus urges the state, in future cases involving a plea-bargain, to make detailed submissions on the whole process to remove all doubt on these questions.

Karonga’s sentence is minutely balanced. Against his undoubted help to the state there’s his personal involvement in embezzling almost MWK5-billion, a sum that “exceeds imaginable realms of pilferage” and is more than the total 2015/6 annual budget for Malawi’s justice institutions.

The correct way to approach these crimes is to “acknowledge their seriousness and then begin the laborious task of mitigating them”. Considering sentence, the judge is also careful that Karonga should not “benefit twice” – he had already negotiated with the state to face reduced charges.

At this point there’s a slight detour worth noting – the judge rebukes counsel for remarks made about Karonga’s spouse being “a mere housewife”. She has to express her displeasure at the gender insensitive language that underplays the contribution Karonga’s wife made to the family, says the judge, and though she understands the point counsel is trying to make – that Karonga’s spouse did not contribute directly to the family’s financial resources – those ideas could be conveyed “without degrading (the wife’s) status and worth as a human being”.

For the three counts on which he was found guilty, Karonga was sentenced to one year for conspiracy to defraud, two years for facilitating money laundering and seven and a half years for money laundering, all to run concurrently, starting from the time of his conviction.

Watching the court work through so exact a sentencing decision is fascinating. And there’s a lot for judges faced with similar challenges to consider in Mwale’s careful judgment – how much “credit” could an accused expect for an early guilty plea, for example, and how much for the fact that his evidence put his own family in danger. But having said that, it did strike me as ironic that so much time was spent arriving so precisely at a sentence totaling a few years when, in other criminal matters and in almost every jurisdiction, it routinely takes just a perfunctory few pages for a judge to hand down a life sentence.

 

Read the full judgment in R v Karonga (Criminal Case No. 68 of 2014) [2018] MWHC 1 (16 March 2018) on MalawiLII

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