High Court Judge Mzonde Mvula sitting at Lilongwe has slammed magistrates for overusing prison terms or custodial sentences without proper justification.
Mvula’s sentiments are contained in the order of confirmation of a judgement where a magistrate court in Mchinji imposed fines and default custodial sentences to Isaac Mbawu, who was convicted of illegal entry into a Protected Forest Reserve contrary to section 32 as read with section 108 of the National Parks and Wildlife Act.
Mbawu was ordered to pay K500 000 fine in default serve 18 months’ imprisonment with hard labour on first count, on a charge of illegal cutting of trees he was ordered K 1,500,000 fine in default serve 36 months’ imprisonment and the same sentence was meted out on count 3 of illegal charcoal production contrary to section 81 (1) of the Forest Act.
The convict failed to pay the fines and was consequently sent to prison to serve the default position.
However, Mvula noticed the Magistrate imposed huge fines and default custodial sentences without due regard to the law.
“The Magistrate consistently committed procedural law errors, common place across Subordinate Courts in the Region, and indeed in Malawi. The legal principle is that first offenders should not be sent to prison. They must get other forms of punishment, other than imprisonment. They must not be mixed with hardened prisoners. Extending that provision, a prison term for a first offender needs justification by the court imposing it.
“If the Magistrate wishes to proceed with imposition of a fine, a means test must always be conducted. Legal precedent is awash that before any trial court can impose a fine as way of case disposal, the court must ascertain the means the offender earns their living. This involves a candid examination, of earnings.
“If the offender earns a living though business, how much is made per day, week or month, or year as case may be, must be used to benchmark the fine. This probe gives efficacy to the process. The fines imposed by the Magistrate here and generally, suggest that fines are just being plucked from the air, as if catching flying ants (mafulufute). Failure to conduct the means test, is laxity. Magistrates need to be admonished over casual approach towards duty.
“A fine that is imposed without conduct of means test is arbitrary. It violates judicial functions. Such fine departs from settled law, and often times, does not balance with the default sentence. A fine should be balanced between the offence, extenuating circumstances and means through which the offender attains livelihood. It should neither be too much nor little to be easily afforded as if buying justice,” reads part of the order
Mvula then ordered that Mbawu be subjected to default sentences only.
“Accordingly, counts 2 and 3 sentences are reduced with 18 months. This is fair in the circumstances,” reads the ruling
He further called on Magistrates in the country to familiarize themselves with judgments on appeal and orders on review from the High Court, to be well grounded in their mandate, borrowing Sir Francis Bacon, former Lord Chancellor of Great Britain’s words that; “Reading makes a full man, speaking a ready man and writing like an exact man”.
“The High Court has made several orders in confirmation to guide the position. There is little change looking at the trend in the courts below. We shall therefore make court specific orders, so that we track progress, and learning curve in particular magistrates, under doctrine of stare decisis.
“This authority builds on the many other cases before it, how Magistrate courts should conduct themselves as a matter of procedure before imposing a fine as case disposal tool. I am yet to see a file where due process of law was followed before fine imposition. Hence, the present order to remind magistrates on what needs to be done in the circumstances,” reads the order
