Starting with the live coverage of the Dr Conrad Murray [Michael Jackson murder] trial to the Oscar Pistorius trial, we have witnessed a ‘mediasation’ of the law. By the end of the ‘OP’ trial, almost anyone who cared could venture in a legal opinion of how the state and the defence had performed and how Judge Thokozile Masipa had or had not got the verdict right.
It was therefore expected that the sentence imposed by the High Court in Republic v Senzani would result in a furore and a backlash against the Anti-Corruption Bureau (ACB). Its Deputy Director, Reyneck Matemba had to give some justification to a largely dissatisfied media. This article makes an attempt to show that maybe the criticism against the ACB and Matemba may be unwarranted. It argues that there is blame, yes, but maybe it lies elsewhere.
Treza Senzani was charged with theft of public funds under the Cashgate affair. She pleaded guilty to stealing K63 million ($150,000) as well as money laundering. She was sentenced to9 months imprisonment on the charge of theft and 3 years for money laundering. These sentences are to run concurrently. The maximum she can serve is 3 years.
The public outcry came after people thought that Senzani’s sentence was too lenient and blamed the State for charging her with common theft.It is said even the presiding Judge wondered the more serious offence of ‘theft by public servant’ was not proffered. Matemba’s argument that this was ‘because she still could have dipped her fingers in the public kitty even if she was not a public servant’ was described as ‘balderdash’.
It is clear that the public wanted Senzani to be charged with theft by public servant, which ensures a long jail sentence upon conviction. Now herein lies the problem. Theft, also called, simple theftand theft by public servant are two different species of theft. When a public servant steals from the public; that does not automatically translate to theft by public servant.
ANALYSIS OF THE LAW
The maximum general punishment for theft is 5 years. But even the 5 years is usually reserved for the worst offenders. In law the usual saying is that the worst offender is not yet born. The reasoning is simple, suppose you sentence a person who has stolen X amount to the maximum 5 years; what happens when the next person steal X +1 or even 2X, 10X, 100X or indeed more?
By comparison, a person found guilty of robbery can spend up to 14 years.If one steals a bicycle (njinga ya kabaza) then the sentence is 10 years! These are the maximum. This comparison is deliberate so that public can begin to identify where the problem lies.
Theft by public servant
Simply put, the law is that if public employee has by virtue of that employment received or has had in her custody or under her control any money and such person has been unable to produce to her employer such money or to make due account therefor, then unlessshe satisfied the court to the contrary, she shall be presumed to have stolen the money.The punishments for this are on a graduated scale, but anything exceeding K80,000.00 leads to a maximum of 14 years imprisonment. If we look at the elements of this offence, it means that the State must prove several things. The tricky part though is proving that the accused was in custody of the money stolen, or it came into her possession by virtue of employment. If we look at the Cashgate cases, we see that it is not only public servants that are being accused and tried. This means that the people alleged to have stolen the money did not do so by virtue of being public servants. It is on this basis that the charge of simple theft would be a preferred one.
The decision to prosecute is never an easy one. The State must consider not only the charges but the likelihood of getting a conviction on a standard of proof beyond reasonable doubt. In this case, theft was proffered because, in my opinion, it was deemed a safe charge which was more likely to result in a conviction.
Senzani was also charged with money laundering. The maximum sentence for money laundering is 10 years or a fine of K2 million. For whatever reason, there seems to be less outcry regarding this charge. Yet compared to theft, money laundering is a more serious offence.The fact that the Court imposed a custodial sentence reflects the Court’s view about this particular case.
Is the Public justified in being angry? I would say it is. However I argue that the anger should not be directed to the ACB or Mr Matemba or even the Courts but it is the law that is to blame. If theft of a bicycle can be treated as a more serious offence than theft of millions then we clearly have a problem.So what needs to be done? In my view, the public, if it feels aggrieved by this, should move for a change of the law. This can be done via our Members of Parliament, Civil Society Organisations and other lawful means. A message needs to be sent that the lawmakers that the penal law in our country is out of step with societal expectations. Reforming the law is not something that can be done overnight. But without agitation or triggering effect, no reformation may take place.
For now, as the ACB states that we should expect more arrests, the public needs to brace itself that in relation to the Cashgate affair, most likely the people arrested may be charged with theft and/or money laundering.
For the full article, visit: http://sunduzwayo.blogspot.com/2014/10/in-defence-of-matemba-and-acb-case-of.html