IN THE HIGH COURT OF MALAWI
CRIMINAL CASE NO. 53 OF 2000
1. A/SUPT COSMAS PHILLIP ENEYA
2. PAUL CHINGALA
3. HAROLD CHIKAFUKA BANDA
4. RAPHAEL BANDA
5. FRANK BOMA
6. THOMAS MANDA
7. JAMES MWANDIRA
CORAM: HON. JUSTICE A.C. CHIPETA
Kamwambe, Chief State Advocate, for the State
Manyungwa, Assistant Chief State Advocate, for the State
Kayira, Chief Legal Aid Advocate, for the Accused
Lameck, Senior Legal Aid Advocate, for the Accused
Kamanga, Official Interpreter/Recording Officer
The five accused persons herein, namely, Cosmas Phillip Eneya, Paul
Chingala, Harold Chikafuka Banda, Raphael Banda and James Mwandira were
yesterday, after being duly found guilty by a jury, convicted of the Offence
of Manslaughter contrary to Section 208 of the Penal Code. The offence
they committed took place on 6th July, 2000 at Zomba Central Prison.
At the material time they were all Prison Officers of deffering ranks in
the Malawi Prison Service and were discharging their duties at the Zomba
Central Prison. The victim of their crime, to wit, the person whose
death they unlawfully caused, was a prisoner under their care by the
name of Kwacha Ghambi.
Following their conviction I listed to their pleas in mitigation, eloquently
put forward by the learned Chief Legal Aid Advocate, Mr Kayira, who has
throughout ably represented them in this case. This was after the
learned Assistant Chief State Advocate Mr Manyugwa, had advised the court
to the effect that none of the accused persons had a previous record.
Indeed in mitigation, Mr Kayira also took up the point that the accused
persons are just offenders and pleaded that as such they deserve the leniency
of the court for hitherto being persons of good character. The ages
of the accused persons were disclosed as respectively being 47 years, 34
years, 36 years, 26 years, and 40 years from the first to the last.
I must here observe that it is true that where a convicted person has
been shown to have led a clean and blameless life prior to his conviction
such factor goes to his credit and ought to be given meaningful consideration
as the court addresses its mind to the question of sentence in his case,
I will therefore in this matter duly take that point into account as well
as the fact that for the ages disclosed the accused persons have throughout
been law abiding citizens.
I have further been told that the accused persons are remorseful for
what they did and have been asked to consider that the offence they committed
occurred in the course of their line of duty. Following this Mr Kayira
recited in respect of each a litany of mainly family responsibilities covering
their spouses, children their parents and other dependants who are said
to look up to them for provision of maintenance education, are general
support. It was also pointed out that the accused persons have this
far been incarcerated as remandees at prison for a period of almost 9 months
since arrest. He asked that apart from considering the other mitigating
factors the court should take the period so far already spent in prison
It was well acknowledged in the same mitigation statement that the offence
of Manslaughter, such as the accused persons have bee convicted of herein,
is a crime of severe gravity and that the fact that the legislature has
attached to it life imprisonment as the appropriate penalty speaks for
itself in this regard. It was however argued that as per sentencing
principles occasion will be for a court of law to impose the maximum penalty.
Indeed as argued the maximum sentence for every crime under sentencing
principles is reserved for the worst offender and for the worst instance
of the crime in question. I will accordingly duly bear this in mind
as I impose sentence in this case. By way of winding up, in the light
of the mitigating circumstances highlighted and after considerable reference
to the principles of sentencing as practiced in England as covered in Blackstone’s
Criminal Practice 1994 edition, Mr Kayira asked this court to be considerate
when passing sentence on the accused persons herein.
I have to say in situations where an accused person is truly sad absent
the crime he has committed and when he has shown that he sincerely regrets
his crime courts are mandated to extend leniency to him for that remorseful
spirit. On that point in this case the only indicator of remorse
that has come to my attention is the word of Mr Kayira on it. It
makes if difficult to ascertain both the existence and extent of the remorse,
if any, when it comes to the attention of the court in this fashion.
The normal manner in which an accused person demonstrates remorse is by
way of sincerely admitting his wrong-doing in a prompt and unequivocal
manner and thus saying the court’s time through shortening of the trial
procedure. Where however the fights took and nail against the allegation
levelled against him and only says he is remorseful for his crime after
being convicted, courts will take that statement with a pinch of salt.
At this stage it becomes rather blurred whether the accused expenses remorse
because he is now pitying himself or whether indeed he repents for the
wrong-doing he is told he committed. I am not convinced that the
point of alleged remorsefulness in this case should play any significant
role in the sentence that has to be passed in this case.
Regarding the point raised that thus court should consider that the
offence the accused in the course of their line of duty, I am rather at
a loss now that is supposed to operate as a mitigating feature in this
case. It is not quite clear to me whether the court is being asked
to be considerate because then line of duty allows for such offences to
occur or because of duty they could not have avoided committing this offence.
To my mind the fact that the accused persons herein committed this offence
in their line of duty rather aggravates them mitigates the offence.
This factor in fact raises the serious question of the safety of our
prisoners. True a prison is a place where an offender is sent to
serve his penalty for the crime he is convicted of, but it is also supposed
to be a place of rehabilitation and reflection. Behind every sentence
of imprisonment is a hope that the criminal thus dispatched will eventually
come out with a mended life and return to society as a useful citizen.
A person is not sent to jail at the risk that he might or might not come
back alive. This is why there is a specific law in place, the Prisons
Act, setting up an establishment and the rules for operating such a delicate
institution. This Act is supposed to be, so to speak, the bible for
raising prisons and the likes of the accused persons by victim of their
job are supposed to be faithful to its comments. To demonstrate that
the life of a prisoner enjoys the same sanctity as that of a free man the
Prison Act even provides for appointment of a medical officer for each
person, for frequent health checks, and for adequate medical care and attention
for prisons in event of illness. The message is clear that no efforts
should be spared to preserve life even if a person is a prisoner.
Further the Act places great emphasis at the protection of a prisoner’s
life even in situation of emergency. Since who looks after prisoners
undergo special training and are supposed to observe standing regulations
in the course of their job and in their general treatment of the inmates
left under the care. It amounts to a matter of grave concern therefore
when people who are entrusted with this heavy responsibility, who know
or are supposed to know the rules, to whom discipline is supposed to be
second nature, turn around as they did in this case and going up in multitude
with even weapons the Act does not recognize against a single prisoner
just because he has annoyed and severely angered one of them and kill him
like a pack of hunters would like a rabbit. If our country at the
dawn of the 21st century has amongst its staff manning prisons persons
of such base, course and savage character then we require not just a reform
but a complete revolution of the prison system. Let us look at prisons
as institutions that are open to us all. For some reason or another
any of us could land these for to err is human. Should people go
there fearing that if displease an office while these may will end up dead?
This cannot be and must not be. I am inclined to think that the fact
that this office was committed by responsible officers of the prison service
in their line of duty in full defiance of the rules and regulations they
know and ought to apply adds rather than subtracts to the gravity of the
offence. I will accordingly view that point, in that light and not
otherwise as pleaded.
Next I have had to consider whether the family circumstances and responsibilities
of the accused persons as passionately dealt on in mitigation should have
any impact on the sentence dire in the case. Under the applicable
principles of sentencing in criminal procedure courts are normally guided
by the principle that before one embarks on a path of crime, it is incumbent
on him to take these circumstances on board. A man who opts for and
goes ahead to commit a crime should factor in the possibility that if the
long arm of the law catches up with him and accords him a custodial penalty
his family will suffer and that courts are not encouraged to be moved by
What should be borne in mind is that the considerations which bother
accused persons as covered in this pleas are in instances like this equally
applicable to the families and dependants of the victims of their crime.
The deceased too probably had a family and relatives and other dependants
looking up to him for maintenance, education and, other general support.
Since he is dead he will not ever be able to extend them this support.
If he had returned alive from his prison term he could have resumed these
responsibilities, but in this case since he is dead, and it had to be remembered
that he died at the hand of these men he will not come back to resume that
responsibility. Really will it be fair for the court to give the
accused person less than an appropriate sentence just because their families
will suffer when the man they killed will never come back and alleviate
his family’s suffering? I think not. The law is settled that
family responsibilities should not influence courts when they pass sentence.
The reasons behind that make sense and some of them are the ones I have
demonstrated above. I am under obligation to follow these rules of
sentencing and will accordingly do so by rejecting this plea.
The point Mr Kayira made about the remand persons the accused persons
have already been subjected to is quite valid. Although in truth
the accused persons have been tried much faster than most homicide remandees,
it is a point I will duly take into account as I pass sentence. As
prison officers I am sure the accused persons are well aware that most
homicide remandees spend five, seven, or even more years in custody before
they are tried and that they are comparatively considerably lucky to be
tried in less than one year. This is not however to pay that what
happens is right. The criminal justice system needs to be revamped
to shorten the painful waiting period. Thus although the period these
accused persons have spent in custody is much shorter than usual, it still
deserves consideration in the passing of this sentence.
I have tried to evaluate the crime the accused persons committed.
It emerges from this evaluation that the aggravating features if the offence
herein outweigh its mitigating features. This offence of manslaughter
herein as committed by the accused persons was as close to murder as manslaughter
can get. It was committed in a most cruel and gruesome style and
manner, paradoxically by the very people in whose hands the law entrusted
the life and safety of the deceased prisoner. It is my view that
the offenders richly deserve a substantial sentence that will reflect the
reprehensible nature of their crime. The High Court of Malawi has
over the years, time and again, held in its pursuit of appropriate principles
of sentencing that the punishments the courts pass in any case must fit
both the criminal and the crime and that they be fair to society, while
at the same time blended with a measure of mercy. The locus classisus
case here is the case decided by the late lamented Justice Dr. Jere of
Republic -vs- Shauti (1975-77)8 MLR 69; by then an Acting Judge.
As I have said however that while viewing this case with due gravity
I have to give due attention to matters standing in the accused persons
favour in determining the appropriate sentence. In this regard I
have already pointed out that while the limit is life imprisonment, in
the light of the guiding principles I must consider a lower sentence.
Coupled with this I must give the accused persons a good discount on sentence
in the light of the fact that this only comes as their first offence in
the State records. The period they have so far spent in custody I
will resolve through ordering some backdating of their sentence.
I have also taken time to reflect on the circumstances that immediately
proceeded the commission of the offence on that fateful day. It certainly
cannot be glossed over that on his part it appears that the deceased was
needlessly insulting and offensive in the manner he related with the 1st
accused on that day and that this severely tested the self-restraint of
the provoked prison officer. On due balance of both the aggravating
and mitigating circumstances of the case and to fully endorse the sanctity
of human life, free or in bondage, I sentence all five accused persons
to imprisonment for 18 years with hard labour. I further direct that
this sentence takes effect from 1st August, 2000.
The accused persons are at liberty to appeal to the Supreme Court of
Appeal against both conviction and sentence should they so desire.
In this regard I believe as they are represented by Chief Legal Aid Advocate
will fully enlighten them on how to go about this exercise. I order
Pronounced in open Court this 20th day of March, 2001 at Blantyre.