Private Lawyers, Court Bypassed DPP When Commencing Msonda’s ‘Kill Gays’ Criminal Case

Kachale: Her office was never consulted

The Director of Public Prosecution (DPP) has told Legal Affairs Committee of Parliament that the commencement of the Kenneth ‘Ken’ Msonda’s ‘Kill gays’ criminal case was done without consulting her office.

DPP, Mary Kachale, was appearing before the Committee on Thursday afternoon to justify her decision to discontinue the criminal case No 16 of 2016, Republic Versus Kenneth Msonda on Inciting another to contravene the law contrary to section 124 (1)(b) of the penal code.

Politician, Msonda is allegedly to have openly suggested the killing of homosexuals as the only solution to end the rising cases of homosexuality in the country which the charge sheet cited him conduct to have contravened section 209 of the penal code.

It is reportedly that in that Facebook post, the Peoples Party (PP) Publicity and Administrative Secretary, Msonda, had further described homosexual people “worse than ‘dogs” and are “sons and daughters of the devil”

Chakhwantha: his committee acknowledged the
DPP concern 

“She has told the committee that she had to discontinue the case on technical grounds especially where she noted that private lawyers who instituted the criminal proceedings had bypassed her office.” Disclosed Peter Chakhwantha, Chairperson for the Committee after holding a camera interface with Kachale

“The lawyers did not seek consent from her office which is a requirement of the law and again they had also put themselves on record as if they were sent by the office of the DPP as the charge sheet indicates that the case was Republic versus Ken Msonda. 

Where you have a charge drawn in that manner that shows it is the state prosecuting, but in this case the irony is that it was a private lawyer who had gone to court to commence criminal proceedings as if the proceedings were commenced by the office of the DPP. So, where that conflict had risen the DPP had to intervene by withdraw that case” he said

Chakhwantha then said his committee noted and agreed with the DPP on the existence of laws that guide private citizens when commencing criminal proceedings against any person before any court and such procedures were in this case supposed to be followed. He said the committee also observed the failure by Magistrate court to guide the lawyers on how they could have properly commenced that case.

“The law allows the private citizens to commence criminal proceedings. However there are checks and balances, among them is requirement that you have to go by the office of Director of Public Prosecutions. You can allege that the criminal offense has been committed and go to the Magistrate, but even before the magistrate signs the charge sheet, the court has to follow few steps particularly investigate allegations and come up with results in writing to the DPP.” He explained

“In this manner of the case of Ken Msonda, the Magistrate did not even fulfill those requirements. This is where the office of the DPP also faulted the entire commencement of this criminal case.” Said Chakhwantha

Chakhwantha revealed that the DPP, Mary Kachale during the meeting could not say if her office had found Msonda with possible case because she was of the view that she needed to consult for legal opinion on the matter first since Msonda alleged remarks started on Facebook post and media interviews which at the moment her office does not have evidence.

The Legal Affairs Chairperson, further disclosed that during their meeting, the DPP, has told them that at the moment if private members are still of the view that there is need for the recommencement of the case they can do so but under a different case designation; meaning the recommenced case will come again under different case number but not similar case number which was discontinued.

“There is a requirement under the law that once the case has been discontinued within six months it can be recommenced but from her own word she is not ready and willing to recommence the case. This is where she had to say if members of the general public are of the view that the matter should go back to court then they can only do that under a different case number not the one she has discontinued.” Said Chakhwantha

On the way forward as Committee having listened to justification of the discontinuous of the case by DPP, Chakhwantha said “As the committee, we are supposed to discuss the presentation and come up with the resolution on Friday.”


Copy Of Charge Sheet

Criminal Case No. 16 of 2016

THE REPUBLIC VERSUS KENNETH MSONDASUMMONS/CHARGE SHEET(SECTIONS 83 AND 84 OF THE CRIMINAL PROCEDURE AND EVIDENCE CODE)

Accused Name: Kenneth MsondaTO: Kenneth Msonda above named.

Whereas your presence is necessary to answer the charge(s) hereunder set out you are hereby required to appear in person before this Court on the 22nd day of January 2016 at 9 o'clock in the fore noon.

And Herein fail not.

Dated this 8th day of January 2016.

Signed (Resident Magistrate) OFFENCE (SECTION AND LAW) Inciting another to contravene the law, contrary to Section 124 (1)(b) of the penal code.

Kenneth Msonda on or about the 2nd January 2016 in the City of Blantyre indicated or implied to members of the general public that it was desirable for them to contravene section 209 of the penal code by unlawfully killing people of the homosexual orientation.

Dated the 8th day of January 2016

Signed: KHUMBO BONZOE SOKO AND GIFT NANKHUNI Prosecutors (On behalf of the Complainants).

Mw Govt Downplays Global Fund Under-Utilization Fears

President Peter Mutharika signed Global Fund 
Partnership with Mark Dybul, 
Executive Director of the Global Fund 

The Malawi Government has refuted information sourced by the Parliamentary Committee on Nutrition, HIV and AIDS that the country has delayed in the use of the Global Fund money and there is risk of under-utilisation of the approved funds.

The entourage from the Ministry of Health lead by Secretary in the Ministry, McPhail Magwira and Chief of Health Services, Charles Mwansambo has enlighten the Parliamentary committee that there has been no delays in the use of the funds but Government has only faced a challenge of instituting the Project Implementation Unit (PIU).

On Wednesday, the team from Ministry of Health was meeting with the committee on issues on Nutrition, HIV and AIDS but the clarification on the issues followed worries expressed by the committee it got information that there has been no action on the ground in terms of use of approved funds by the principle recipients and the committee feared risk that the country will under-utilise the funds come 2017.

Responding to this question, Mr. McPhail Magwira, Secretary in the Ministry of Health said the Ministry has already started utilizing the money, however, he explained that the only area that delayed in the Global Fund programme was putting together of Project Implementation Unit (PIU) and not utilisation of the money.

"Despite the fact that the unit is not in place, we were allowed to proceed to utilize the funds.  So, the fact that the PIU is not in place and despite the fact that we needed to start in January, but in terms of resource utilization we have already started.” confirmed Magwira

He told the Committee that although it took long to put together PIU, Government has now resolved the problem as it has put together all the necessary staff there.

"This was the case as most of the members of staff from PIU are seconded from  Government except for the very few posts. We have already advertise the posts but in the interim we have also made arrangement for the Project Manager to come in to put the unit in place." said explained 

Chef of Health Services in the Ministry of Health, Dr. Charles Mwansambo shared Magwira sentiments by further assuring the committee that the money from Global Fund have been used.

“Indeed we were supposed to start from the 1st of January and am pleased to report that the Global Fund has provided moneys to Ministry of Health and to other principle recipients, ActionAid and World Vision.So the funds are in the country and were transferred in December for the activities that we said we are going to do that period. 

So, there is no reason to worry, the funds have already started to come in for specific activities that were targeted for the first months that were slightly delayed because of PIU." He said

Cementing on Magwira's justification of the delays in organising PIU office, Mwansambo explained to the committee that the delay to organise the PIU chiefly originated from the reason that non of the Government officers qualified from the interviews that were conducted for the post of managing PIU following advice from Global Fund that PIU management should be seconded from Government because from experience elsewhere, such officers stay even if  Global Fund moves out. 

“So, we went back to Global fund to ask them if we could recruit from outside, now, they have given us ok." He said adding "So, some of the people will be recruited from outside the market while the supporting team will be from Government. That is why it was slightly delayed."

Mwansambo also downplayed fears that National Aids Commission (NAC) is facing problems after it failed to become a principle recepient of Global Fund.

He said "The main role of NAC is to coordinate national response and they are ably doing that with support from various donors including World Bank, so, they are able to play that function."

“With the new funding model, the Global fund did advise countries to go for dual tracking where you get a principal recipient from Government and another from non-governmental organization. So, for Malawi since most of the biomedical part was being conducted by the Ministry of Health, when they advertised for the principle recipient, Ministry of Health applied and NAC applied also. Of course, since we were the ones implementing, we had a competitive advantage over NAC and that is why we got the funding but at present the other two principle recipients are ActionAid and World Vision and these are implementing the non-biomedical part of the project." He said 

"So, I don’t think NAC is at disadvantage at present or there are problems at present." Added Mwansambo

Malawi and the Global Fund strengthened their partnership by signing grants worth more than US$332 million in October last year, to expand treatment and prevention for HIV, TB and Malaria and build resilient and sustainable systems for health. 

The signing brought the total Global Fund commitment to Malawi to US$616 million from 2014 to 2017.

The HIV and TB grants total US$298 million and the malaria grants US$34 million. Malawi has also committed US$30 million of its domestic resources for procurement of health products and to strengthen health systems.

Investments through the grant will enable Malawi to provide HIV treatment for 745,000 patients by the end of 2017, which represents 70 percent of the people in need. The grants will be implemented jointly by the Ministry of Health and two non-governmental organizations, World Vision and ActionAid who will implement the grants directly, strengthening the community-based response to the diseases.

HIV Bill At Cabinet Level-Ministry Of Health

The HIV Prevention and Management Bill is now under Cabinet Committee on Legal Affairs for consideration says Ministry of Health.

This was disclosed on Wednesday evening by a delegation from the Ministry of Health during the encounter with Parliamentary Committee on Nutrition, HIV & Aids. 

Dr. Charles Mwansambo, Chief of Health Services in the Ministry of Health said on 2nd March this year the bill was presented to the Cabinet in its original form as proposed by the Special Law report.

“After Special Law Commission report was prepared it had to be presented to Cabinet Committee on Legal Affairs to look at it.” Confirmed Mwansambo

According to the presentation made by the Ministry to the Committee, indicates that the bill was presented to the Cabinet Committee for consideration just after consultations with Parliamentary Women Caucus.

The committee was further informed that Ministry of Justice will soon be reviewing the bill based on the recommendations from the Cabinet Committee on Legal Affairs possibly in May this year and that presentation of the bill to the full Cabinet by Minister of Health will possibly be later in June.

The ministry also indicated that the presentation of the Bill to Parliament will be done after the Cabinet approves the bill possibly in July this year.

Among other issues, Mwansambo informed the Parliamentary Committee that there are no contentious issues in the bill because those were addressed during the time the bill was presented to the wider grouping before it was presented to the Cabinet Legal Affairs Committee. 

The purpose of the bill is among others to provide a comprehensive legislative and institutional framework for combating preventing and managing HIV and AIDS using human rights approach as well as to promote and protect all people in Malawi to access HIV prevention, treatment, care and support services.

Malawi began to work on the bill since 2009 through the Law Commission and the process of developing it involved Parliamentary Committee on HIV and AIDS, People Living with HIV (PLHIV), risks and vulnerable groups as well as service providers among other stakeholders.


Additional Information About the Bill


Guiding Principles of the Bill are; provide a multi-dimensional approach to the management and prevention of HIV &AIDS, and promote human rights of key and other vulnerable population including access to remedies where human rights of people living with HIV & AIDS are violated.

The Bill intends to achieve the following:

• Create a vibrant institutional framework for effective enforcement of the HIV legislation

• Promote gender equality on impact of HIV and AIDS on women and cultural practices

• Prevent spread of HIV and promote human rights in terms of discrimination and equality, privacy and confidentiality, marriage and family life, property and access to judicial remedies.

• Enhance public health delivery systems in terms of testing for HIV infection and modes of testing

• Provide accurate and reliable information on HIV and AIDS in terms of regulation of information of information and misleading information.

• Provide equal employment opportunities and prohibit discrimination, adoption of HIV and AIDS workplace policies, and HIV and AIDS as an occupational hazard for service providers

• Provide for the role of non-formal and indigenous education 

• Apply criminal law for transmission and exposure offences, and accountability for HIV and AIDS related funds.

DPP To Justify Msonda's 'Kill Gays' Case Discontinuance To Legal Affairs Committee

Kachale: her office discontinued Msonda case

Director of Public Prosecution (DPP) has been summoned to appear before Legal Affairs Committee of Parliament on Thursday to explain about her office decision to discontinue with a case against politician, Kenneth (Ken) Msonda.

Early this year, Peoples Party (PP) Publicity and Administrative Secretary, Msonda, is allegedly to have openly suggested the killing of homosexuals as the only solution to end rising cases of homosexuality in the country. It is reportedly that through his Facebook post he further described homosexual people worse than dogs and “sons and daughters of the devil.”

Although the case was opened against him, DPP office applied to court for the discontinuance of the case.

Deputy Chairperson for Legal Affairs Committee, Maxwell Thyolera explains in an interview that DPP, Mary Kachale appearance before his Committee on Thursday afternoon is to hear more from her about the report she submitted to the committee on the discontinuance of the case.

“We want to know the reasons why she discontinued the case. That is why we have called her to brief the committee because we have the certificate that she has given to the committee, so we want to get more information when she appears tomorrow.” said Thyolera

Honorable Thyolera said Kachale summon came under Section 99 subsection 3 of the constitution which require DPP to give a reasons to Legal Affairs Committee for any criminal proceedings discontinued at any stage before judgment is delivered.

“It is mandatory by law that when the case has been discontinued the reasons as to why has the case has been discontinued has to be given to Legal Affairs of Parliament and it is for the checks and balances that those things should be looked into holistically by both arms of Government; both executive as well as legislatures.” He added

Thyolera indicated that his committee has specifically requested for the case of Republic Vs Msonda because it is the only matter that has recently been discontinued by DPP.

ATI Absence, Little Stakeholder Input In Budget Processes Affecting Social Accountability In Malawi- ActionAid Survey Reveals

A baseline survey by ActionAid Malawi has identified absence of legislations particularly Access to Information and lack of enough engagement in the budget process as some of the limiting factors for social accountability, monitoring and oversight capacity in the management of public resources in the country.

The study captured information on current levels of social accountability capacity within central government, legislatures, civil society and the media. Six gaps were identified and it came up with 21 recommendations.

Access to Information legislation absence was highlighted as one of the limiting factor to access to public information vital for tracking budget expenditures. The legislation is expected to be tabled in the next meeting of the National Assembly probably in May or June and once enacted, the legislation is expected to help Malawians to access to public information which is difficult at the moment.

It also found that resource allocation processes are influenced more by the Ministry of Finance since consultations are mainly top-down with minimum negotiations. The study therefore noted that supply side players do not engage with the process from beginning hence they are not able to contribute fully to the budget debates and it added that donors play critical role in the resource allocation.

Other highlighted gaps are: persistent corruption practices and theft; challenges in performance management of the budget; political influences and gender insensitive budgets; lack of clear guidelines on the process of needs assessments and strategic planning process and legislative provisions on the role of CSO's and oversight players in the confirming the identified needs and strategic plan documents.

Among recommendations includes; strengthen the decentralization parameters to allow more participation and prioritization of needs, addressing public resource management laws, strengthen capacity to produce publicly accessible monthly and quarterly programme based financial statements and spending reports as well as strengthen stakeholder capacity to do expenditure tracking.

The study was done prior to implementation of the first phase of a five year project 'Strengthening Social Accountability and Oversight Capacity for Rights-based Public Resources Management in Health and Agriculture in Malawi.' 

The project aims at developing capacities of stakeholders in social accountability on public finance and the findings are expected to inform activities for the implementation of the project expected to rollout in May this year. 

Reactions to the Report

On Thursday, ActionAid shared the report to CSOs, Legislatures from selected Parliamentary Committees and Media and the findings have received encouraging response.

Richard Chimwendo

Member of Parliament for Dowa East and Chairperson for Parliamentary Committee on Social and Community Affairs, Richard Chimwendo Banda agree with almost all the issues articulated in the findings.

In an interview, Chimwendo said the issue of lack of full budget negotiations and engagements during formulation is one of relevant issues that truly represent current state of Parliamentarians on their oversight role and participation in the budget process.

"Yes, I would like to agree with the findings. There are gaps on how we provide our input to the Budget. The main challenge is that we are given the budget documents a week or so before the passing of the budget and it is therefore always a challenge to scrutinize the budgets." He said 

He added; "We feel Access to Information is very important for us because we will be able to demand to access to budget documents earlier as well to access to information that can enable us monitor the progress of the budget."

He then said he is impressed with the project aims and hoped that empowerment of legislatures on budget tracking will help them carry out budget oversight role properly.

Chidanti Malunga

Equally, Deputy Chairperson for Parliamentary Committee on Agriculture, Honorable Jospeh Chidanti Malunga shared similar sentiments of Chimwendo by adding that "Sometimes we do not know what is contained in Agricultural sector budget."

"Although we are put in cluster Committees to look at the budget documents, still we are not given ample time to look at budget documents. It is important that some times when budget is formulated we have to have time, way in advance so that we scrutinize it and also involve stakeholders in the know to help us critically look at issues in the budget"  he said

Malunga also said ActionAid initiative is a step in the right direction and he is ready together with his committee to work with ActionAid in the project.

Chikondi Chavuta

Chikondi Chavuta, Regional Thematic Manager for Food Security, Climate Resilience and Emergencies at ActionAid Malawi said the new project is aimed at strengthening social accountability and oversight capacity for rights based public resources management in health and agriculture.

She said the project which is part of regional programme that includes Mozambique, Zambia and Tanzania will help to improve the effectiveness of government system and structures to achieve accountability and transparency on budgeting utilization and implementation.

"We found out that structures that we operate at Government level are quite week and needs to be improved to ensure that they have proper service delivery." She said

Chavuta said the project intends to develop and enhance the capacity of stakeholders especially parliamentarians to oversee the two sectors. And also to develop capacity of issue based CSOs, media and Smallholder farmers to engage in social accountability monitoring and advocacy.

She further disclosed that the project also intends to develop capacity of relevant Government departments on public resources management, social accountability and oversight as well as reduce existing working relation gap between Government institutions and the stakeholders.

"This project will try to address that gap by building the capacities of all these areas to ensure that we reach the ultimate goal of ensuring social accountability and transparency and make sure that we have social accountability mechanisms in place that are benefiting especially people in poverty."

Chavuta also mentioned that CSOs, smallholders farmers, Media and Parliamentary Committees especially on Budget and Finance, Health and on Agriculture are expected to play a very critical role in the project on engagements and provide effective oversight that promotes social accountability in the health and agriculture sectors with a particular focus on HIV/AIDS, SRHR and food security.

ActionAid has been appointed to undertake a phase one of a 10-year project on behalf of the Swiss Agency for Development and Cooperation to: 'Strengthen Social Accountability and Oversight Capacity for Rights-based Public Resources Management in Health and Agriculture in Southern Africa'.

Mphwiyo Shooting Case: Defense Ready To Finalise Testimony Next Month

The defense in the case of the attempted murder of former budget director Paul Mphwiyo has commited to finish giving defense testimony next month. 

Second accused, Pika Manondo is in his defense and the case has been adhourned to 18th and 19th April 2016 where court expect to hear from four witneses.

Director of Public Prosecution DPP Mary Kachale said State also believes that Defense is ready considering progress made so far.

“We have made significant progress because the defense has committed that the next sitting will be the last sitting on their part.” she said

Defense is expected to call four witnesses and hope to conclude in those two days.

Mphwiyo Shooting: Kasambara Found With Contempt For Threaten To Slap DPP

The High Court in Lilongwe has found with contempt of Court and subsequently censure the third accused Raphael Kasambara for threatening the Director of Public Prosecution (DPP) Mary Kachale that, he would have slapped her if sentiments she made inside the Court were made outside courtroom.

Kasambara: I would slap you

Kasambara answering attempted murder of Paul Mphwiyo was heard in court shouting "I would slap you for that" when the DPP raised an objection as he was cross-examining second accused Pika Manondo about the issue of distance and time it takes one to drive to Mr. Paul Mpwiyo's House.

In her objection, Kachale asked Kasambara to question Pika about distance and time takes one driving from Ufulu gardens to Paul Mpwhiyo residence and not from Kanengo because according to Kachale, Pika had used the route before, when going to Mphwiyo’s house.

This did not sound well with Kasambara who reacted by stating that the DPP was "insinuating" that Pika was present at the shooting and that with her assertions, she has brought no evidence to prove that Pika was present at the scene. He then angrily shouted that he could have slapped her for such remarks because were provocative.

"I find the third accused in contempt of court and I censure, not to repeat this kind of behavior from now onwards" ruled Justice Michael Mtambo immediately both sides had finished making impromptu oral submissions

Before the final ruling was made, Judge observed that this was second time Kasambara has made such remarks of this nature to DPP.

“The other time in Chambers I had asked Mr. Chibwana to sit between you and DPP. And this conduct in the face of court is disrespectful of the presence and the authority of the court. I therefore cite you of Contempt of Court.”

Kachale: I am speechless 

Immediately Kasambara uttered his aggressive words Kachale looked very shocked and she reacted by saying "I am speechless"

She told court that she felt the threat was “beyond bar” and was “stretching beyond the limit of decency." She then asked Judge to call for a break but got reply from Justice Mtambo that he could not allow a break if it is Contempt of court.

But Kasambara told court that he was simply saying if it happened outside the court that she made such remarks he would slap her but he cannot do that in court, then added “I meant you are lucky that you are in court”

Kachale reacted further to say “This is a form of violence and intimidation.” She said Kasambara was trying to intimidate her in the presence of the court and described his conduct as “blatant contempt.”

"This is a gender issue. I feel he would not have done that to male officer of court because they could have met and deal with each other outside” said Kachali who further mentioned that such remarks were also meant to demean her office because it is being headed by a female person.

Chibwana

State Counsel, Mr. Enoch Chibwana, when asked by court to speak on the matter, he said this incident was not first time for Kasambara as he had done it before in the chamber but the repetition of the same seem the accused has failed to learn lesson.

“The third accused is not an ordinary man in court. He is a senior counsel who must show exemplary behavour not only in this court… And allowing this type of behavior to be done at the court of this magnitude it leaves a lot of questions unanswered” he said adding that this was a right platform to provide a appropriate action

However, Kasambara apologized for his conduct and promised never again to allow such a thing to happen even if he is provoked.

“Am sincerely sorry, My Lord, these words did not mean to undermine the authority of the court… it was a vulgar statement made in the heat of the moment… I will try as much as possible even if provoked again”