THE HIGH COURT OF MALALWI
APPEAL CASE NO. 16 OF 2008
Phillipo State Advocate for the State
present and unrepresented
Mangison, Official Interpreter
U D G M E N T
is an appeal from the judgment of the First Grade Magistrate. The
two convicts appeared before the First Grade Magistrate
Mwanza on a charge containing three counts: false declaration of
citizenship, false declaration for a passport and uttering
documents contrary to Section 33(1) of the Malawi Citizenship Act,
Section 327 and 360 of the Penal Code respectively. They
pleaded guilty. They were sentenced to pay fines of K20,000 and
K5,000 on the first and second counts respectively and to
imprisonment on the third count. They appealed against the sentence
on the third count.
appellants filed two grounds of appeal: that the lower court did not
give due weight to mitigating factors and that the sentence
facts of this case are not disputed at all.
second appellant Cosmas Kwaramba is a Zimbabwean national. He is a
holder of a Zimbabwean passport. However, during his sojourn
Republic of South Africa he over stayed his residence permit.
Consequently he was declared a prohibited immigrant. This
his passport invalid for legal entry into the Republic of South
first appellant: Winston Trevor Nkusa, is a Malawian national. He
traveled to Zimbabwe to condole some relatives. He met
appellant who told him of his plight. He decided to help the second
appellant obtaining a Malawi passport. They traveled
Malawi for the said purpose.
first appellant invented new particulars for the second appellant.
The name was changed to Cosmas Mkwamba. Further he procured
identity card for a faith based organization for the second
appellant, who was documented to be deaf and dump and to be under
care and control. The official forms for the Application
for a Republic of Malawi Passport were
duly completed by the two appellants, stamped by the District
Commissioners Office and a Malawi Passport was duly issued.
fraud was uncovered at the Mwanza border when the second appellant
wanted to exit Malawi. Hence this charge
have taken time to illustrate the circumstances of this case because
one ground of appeal is that the trial Magistrate did not
weight to mitigating factors in the case. I do not agree. The trial
magistrate took great case when sentencing the appellants.
record shows that his opinion on sentence is 32 pages long and very
elaborate. He took into account the aggravating factors
conspiracy in Zimbabwe, traveling to Malawi to execute it, the
obtaining of false identities using faith based organizations.
Concocting disability and the second appellant presenting himself as
a deaf and dumb person to the authorities. He also considered
dangerous and effect of foreigners obtaining Malawi passport. The
resultant erosion of international confidence in Malawi
The added cost for Malawians when traveling outside this region. In
the end the lower court considered that the appellants
guilty, are first offenders and that the first two counts were
misdemeanors. If counsel had taken time to read the court
would not have alleged that the court did not consider the mitigating
factors. The fact of the matter is that the court
found that the
aggravating factors were overwhelming in this case I agree with him.
have considered the sentence and I find that it was lenient enough.
I would have imposed a longer sentence taking into account
soliciting and cross - border element, I therefore reluctantly
appeal against sentence on the third court therefore fails.
in open Court this 3rd
day of June, 2008 at Blantyre.