Republic v Chizinga and Others (CRIMINAL CASE NUMBER 871 OF 1998) ((CRIMINAL CASE NUMBER 871 OF 1998)) [2005] MWHC 30 (16 June 2005);

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It is clear from the foregoing and especially from the evidence of PW5 and PW11 that indeed the first accused gave gratification to the above named officers for the benefit of such officers. Such payment could not have been made for any other purpose apart from being an inducement for the Police Officers concerned to forbear from discharging their functions as stated by PW5. The checking of foreign currency and suspected foreign individuals and trucks was a concern of the Malawi Police as indicated by PW5.

The question that however arises is whether the gratification was given corruptly. In terms of Section 3 of the Corrupt Practices Act the accused will be deemed to have accepted corruptly if the gratification is accepted by way of a bribe or other personal temptation, enticement or inducement.

In the cases of R vs. Smith (1960) 2 QB 423 and R vs. Calland (1967) Criminal Law Reports 236 it was held that the word “corruptly” does not mean “dishonestly” but purposely doing an act which the law forbids (see also the case of Harvey (1999) Crim. L.R. 70.

The payment by the first accused was clearly calculated to operate as an inducement. The Corrupt Practices Act prohibits the giving of gratification to public officers. Such giving was therefore done corruptly.

The first accused is also charged with attempting to give the above named Police officers gratification as an inducement for the said Police Officers to forbear from carrying out their duty of checking foreign currency and suspected foreign individuals on GDC trucks. The attempt comes in because the money Rodrick Chizinga brought to PW5 did not reach the intended beneficiaries as it was obstructed by PW5 before reaching its desired targets. The first accused therefore attempted to corrupt those officers to whom the money did not reach.


It is evidence of the first accused that Benson Chithowa who at the material time was the Operations Manager for GDC sent to him an envelope. He said that he only realized that there was money in the envelope when he was called by the officer in charge, PW 5 to collect the envelope.

The first accused’s version does not seem to be credible. Firstly, one wonders how he could carry an envelope the contents of which he did not know. Secondly, it is the evidence of the PW5 and PW 11 that when he was called by the Officer in charge and confronted on the money, he apologized. We wonder why he did not say at that time that the envelope came from Chinthowa. We wonder why he did not say that he did not know the contents of the envelop at such confrontation.

Under Section 14 (b) of the Corrupt Practices Act, an offence of misleading officers of the Anti Corruption Bureau will be committed when the accused person has given any false information to the said officers of the Anti Corruption Bureau. The giving of such false information must be done knowingly. Section 14(b) provides as follows-

Any person who knowingly –

(a)      makes or causes to be made to the Bureau a false report of the commission of an offence under this Act; or

b)       misleads the Director, the Deputy, Director or other officer of the Bureau by giving any false information, or by making any false statements or accusations.

Shall be guilty of an offensive and liable to a fine of K100,000 and to imprisonment for ten years.”

For an offence under the above section to be established it must be established by the prosecution that the accused gave false information or made a false statement to the Anti- Corruption Bureau. It must also be established that the false information or the false statement were made by the accused knowingly. Further it must be established that the false information or the false statement misled the Director, the Deputy, Director or other officer of the Bureau.

In his Caution Statement, (Exb 48) Rodrick Chizinga stated on page two (2) that GDC had in fact paid all the Toll Fees and that he had received general receipt for those payments. He indicated that he could produce the general receipt, which he never did. In fact an examination of Exhibits P15a, P18a, and P19a together with Exhibit P45 shows that the trucks contained in the named exhibits had not had their Toll Fees deducted from Exhibit P45. The trucks had indeed entered Malawi as can be noted from the relevant NBS’s (Exh P46 b).

It is clear from the foregoing therefore that the first accused gave false information or made a false statement to the Anti-Corruption Bureau. The statement or information misled the Deputy Director and the Assistant Director of the Anti Corruption Bureau who at the material they were investigating the matter.

False statements are misleading in themselves. The issue therefore is whether it has to be shown in what actions the Deputy Director and the Assistant Director of the Anti Corruption Bureau took to show that they were misled.

Section 14(2) is clear in its intent and purport. No evidence is required to prove the actions of the Assistant Director and Deputy Director to demonstrate that they were misled. The mere giving of a false statement is a form of misleading. The accused in fact misleads by giving false information. In terms of the above section there are three forms of misleading.

One can mislead by:

(a)     
Giving false information.
(b)     
Making a false statement.
(c)     
Making a false accusation.

The fact that a false statement was made invariably shows that there was misleading.

To misleading was defined in the Oxford Advanced Learner’s Dictionary Fifth Edition Page 745 as follows-

To cause somebody to have a wrong idea or impression about somebody or something”

It will be noted from the above that misleading means to give a false impression. By merely giving false information to the Assistant Director and Deputy Director the first accused gave a false impression that toll fees were paid when in fact they were not. It is not necessary to prove the actions that the Assistant and Deputy Director took as a result of the false information.

It is therefore not necessary to prove the actions the Deputy Director and the Assistant Director took to show that they were misled. It is sufficient to prove that the false information or false statement was made to them by the accused and that the accused knew that the statement or information was false.

Rodrick Chizinga indicated on page three (3) of the Caution Statement “at the time I was writing the reports I knew that they were not correct but I kept on writing them because I was promised some money”. Investigations revealed that these trucks that were contained in the reports (Make Plan documents) had indeed entered Malawi as is evidenced by the respective NBS’s.

An examination of exhibits 45, 46a, 46b and 47 also discloses that the contents of the “Make Plans documents” were in fact true contrary to the assertion of the first accused in his Caution Statement.

The first accused therefore gave the above information to the Anti-Corruption Bureau officers fully knowing that it was false in material particular at the time he was giving it. He had therefore contravened the provisions of Section 14 (b) of the Corrupt Practices Act.

2.2     
LIGHTON ENOS MAGANIZO PHANGIRE (hereinafter called the second accused

He was charged with two counts of corrupt practices by public officers. In the first count he is alleged to have accepted the sum of K234, 160 between the period 1st April 1996 and 31st July, 1998 from GDC. He is also alleged to have accepted entertainment. The above was accepted as an inducement for forbearing to carry out detailed weighing of GDC foreign registered trucks. The checking and weighing of the trucks being a concern of the Road Traffic Commission.

In the second count, he is alleged to have accepted and to have solicited similar amounts from GDC Holdings Limited at Blantyre as an inducement for him to forbear the above weighing and checking of GDC trucks.

The evidence that has come in Court is that among the monthly payments by GDC to public officers, some payment was going to Balaka Weighbridge where Mr. Phangire was stationed. There is uncontroverted evidence that the second accused’s duties was to weigh the trucks and check Toll Fees on GDC foreign registered trucks.

By way of example, Exhibit 4b shows that the sum of K1, 600.00 was earmarked for Balaka Weighbridge every month.

The evidence of Mbendera (PW3) Lindeire (PW4) show that GDC was making monthly payments to public offices and that included Balaka personnel. Both PW3 and PW4 also confirmed that GDC personnel including the second accused used to frequent GDC premises.

It was the further evidence of PW3 that sometime in October, 1996 the second accused came to GDC Holdings premises to collect the sum of K1, 600.00 and a petty cash voucher Exhibit P31 (a) was prepared. Exhibit 31(a), 31(b) and 31(c) bears testimony to this fact. Exhibit P30b shows that in the month of September, a similar amount was also paid to Balaka Weighbridge.

For an offence of corrupt practices by public officers to be established against the second accused, the prosecution should prove that the second accused corruptly accepted gratification to forbear from carrying out the detailed weighing and the checking of Toll Fees on GDC trucks. It must also be shown that such weighing and checking was a concern of the Road Traffic Commission. It cannot be disputed that the weighing and checking are a concern of the Road Traffic Commission. The issues are whether the second accused accepted gratification and whether he forbore to do so weigh the trucks and check toll fees.

The evidence of both PW3 and PW4 confirm that the second accused accepted gratification. However, in terms of Section 33 (1) and 47 of the Corrupt Practices Act it would not be a defence on the part of the second accused to say that he did not forbear to check toll fees and weigh the said trucks as long as it is proved that he accepted or solicited gratification from GDC. Sections 33(1) and 47 provide as follows-

Section 33 (1)
If, in any proceedings for an offence under any section of this Part, it is proved that the accused accepted any gratification, believing or suspecting or having reasonable grounds to believe or suspect that the gratification was given as an inducement or reward for or otherwise on account of his doing or forbearing to do, or having forborne to do, any act referred to in that section, it shall be on defence that:-

(a)     
he did not actually have the power, right or opportunity so to do or forbear;
(b)     
he accepted the gratification without intending so to do or forbear; or