MALAWI: U.S. TRAINING SCORES A SUCCESS FOR PROSECUTORS;

UNCLAS SECTION 01 OF 03 LILONGWE 000792 SIPDIS SIPDIS DEPT FOR AF/S - ELIZABETH PELLETREAU DEPT FOR AF/PD, INR/AA - RITA BYRNES USAID FOR AFR/SA, ODP/MCC MCC FOR MALIK CHAKA DOJ FOR OPDAT (ALEXANDRE/SILVERWOOD) E.O. 12958: N/A TAGS: PGOV EAID KMCA KJUS KCRM KPAO MI SUBJECT: MALAWI: U.S. TRAINING SCORES A SUCCESS FOR PROSECUTORS; POLICE OFFICER CONVICTED OF CIVIL RIGHTS VIOLATION LILONGWE 00000792 001.2 OF 003 ¶1. (U) Summary. A recent criminal case stands out as an example of the Malawi Prosecutor's Office's stated willingness to apply lessons learned from MCC/DOJ OPDAT assistance and utilize progressive western methods of prosecution. A DOJ OPDAT trained prosecutor scored a first ever in Malawian jurisprudence by convicting at trial a police officer of a civil rights violation. The police officer, a sixteen-year veteran of the force, shot and severely wounded an unarmed civilian without justification. Vigorously defended, the trial took over eight months to complete. Upon conviction, the officer broke his bond conditions and fled, and is currently at large. End Summary. Director of Public Prosecutions -------------- ¶2. (U) The office of the Director of Public Prosecutions of Malawi is, like many government offices, chronically understaffed and underfunded. Thousands of cases are backlogged, and many case files are lost during staff turnover. All prosecutors are fresh out of law school, and few stay more than two years before departing to the private sector for better pay and conditions. To help alleviate the missing case file problem, MCC/DOJ recently procured the requisite hard and software to run an electronic data base file management system. With this support, prisoners' cases will no longer get lost in the system and thereby, hopefully, prisoners in pre-trial detention will be tracked and expedited. ¶3. (U) Most DPP prosecutors, despite their complaints (low pay, no fuel for transportation to court, no money to top up air time on cell phones, and dilapidated offices),are inspired by and love their work. They all want training in criminal law and procedure, and look to the U.S. Department of Justice's Office of Overseas Prosecutions, Development, Assistance, and Training (DOJ OPDAT) to help in this sphere. Accordingly, over the past months, the DOJ OPDAT Resident Legal Advisor (RLA) has held comprehensive seminars in money laundering, complex economic crime, public corruption, human trafficking, plea bargaining, ethics and professional responsibility, and trial advocacy. In addition to attending these seminars, three DPP prosecutors went with the RLA to the DOJ national training center in Columbia, South Carolina for an intensive two-week course in trial advocacy. ¶4. (U) One of these three (Mtamandeni Liabunya) handled the subject case. Prosecutor Liabunya's excellent work in this case is a good example of what OPDAT training can accomplish. Having been trained and equipped by OPDAT, he consulted with the RLA on strategy and tactics in the case, and requested criticisms of his performance during the trial hearings. The Crime -------------- ¶5. (U) The victim, Gareth John Kilian (then age 20),was shot and severely wounded by Police Officer Charles Nowa on the night of April 17, 2004. Officer Nowa was a sixteen-year veteran of the Malawi police force. The victim was attending a friend's wedding in a residential area in Lilongwe. He and three teenage friends decided to drive to a nearby dam and graveyard for a smoke. Unbeknownst to them and the guests at the wedding party, the owner of a neighboring property had contacted the local police. Apparently Charles Satha, a well-known criminal in this region, had stolen various articles from the owner's property and, thereafter, was sighted at a local drinking establishment. ¶6. (U) By the time Police Officer Nowa and three residential security guards arrived at the drinking locale, Satha had already left. So, they went in search of him. Nowa claims to have been in police uniform, but admitted under oath during his testimony that he was wearing a plain jersey and a jacket, and the security guards were likewise plain clothed. The security guards testified that they knew Charles Satha did not have a vehicle and that they had never before seen him in any vehicle. Regardless, because Nowa had seen a vehicle driving in the vicinity of the dam and graveyard area, Nowa instructed the guards to wave it down. As the driver of the car and his friends only saw civilians flapping their arms, they believed it could be hijackers and drove past without stopping. Nowa confessed that he was unable to see inside the vehicle, as it was dark; but, based on the assumption that the car may have been assisting Satha to escape, he shot at it in an attempt to deflate the rear tire. ¶7. (U) The bullet fired by Nowa went through the rear door panel of the car and entered the right hand side of the victim's body. He immediately was taken to Kamuzu Central Hospital in Lilongwe, where LILONGWE 00000792 002.2 OF 003 a team of surgeons operated for four hours to stabilize him. Once stabilized, the victim was air evacuated to Johannesburg, South Africa. Due to the severity of the injury and life threatening situation, he spent the next three months in the Trauma Intensive Care Unit of Milpark Hospital. He was placed into an induced coma, as his abdomen had to remain open for surgical procedures. Over the past three years, the victim has undergone twenty-one operations, amounting to a cost of over $225,000. The Trial -------------- ¶8. (U) The Office of the Director of Public Prosecutions initially charged Officer Nowa with attempted homicide. Nowa was suspended from duty and released on bond pending jury trial. Receiving bond in a homicide case is highly unusual; pre-trail detention is the norm. Under Malawian law, homicide cases require a jury trial. But, due to the courts being overloaded with more than 1,000 outstanding homicide and attempted homicide cases (with practically all defendants in pre-trial detention),the likelihood of the case being heard before a judge and jury was minimal. Therefore, in consultation with the RLA, Prosecutor Liabunya picked up the case after two years of inaction, and reduced the charge from attempted homicide to two counts of negligence with a firearm and causing grievous bodily harm. The maximum sentence was thereby reduced from life to fifteen years in prison. ¶9. (U) The case, now no longer subject to jury trial, commenced in January of this year in the low court before a Magistrate. Although the case itself only took several days to present, the testimony and arguments were scattered over eight months of hearings, including many false starts due to no-shows by the Magistrate and the defense counsel. Prosecutor Liabunya presented seven witnesses: the victim, one of the co-passengers, the three security guards, the main surgeon who stabilized the victim, and the police CID Inspector who investigated the case. ¶10. (U) The defendant testified on his own behalf. As per his testimony, his action was based solely on assumptions. He assumed that the vehicle had gone towards the graveyard with the objective of picking up Charles Satha. He then assumed Charles Satha was in the vehicle, so he shot at the vehicle, despite his own testimony that it was too dark for him to make out whether or not Charles Satha was in the vehicle. He could not even make out how many people were in the vehicle, as it was too dark. He justified his actions as self-defense and necessity. He argued that his life was in danger, since the vehicle was driving towards him. Further, if he didn't fire, a felon would have escaped. Hence, his actions were justified by Section 30 of the Malawi Police Act, which governs the use of firearms by police officers. Inter alia, it specifically prohibits resort to firearms when attempting to arrest a felon, unless the officer has reasonable ground to believe that he is in danger of grievous bodily harm or that he otherwise cannot effectuate the arrest of the felon. But, under cross-examination, the defendant admitted that he was on the side of the road as the car passed him. It was not until after the car passed that he then aimed and fired at the alleged fleeing felon, Charles Satha. Verdict and Aftermath -------------- ¶11. (U) Although defense counsel argued vehemently that Nowa's actions fit within and were reasonably justified under Section 30, the Magistrate found that Officer Nowa exhibited a reckless disregard for the life and safety of others, amounting to a crime against the State and conduct deserving punishment. A verdict of guilty was entered on August 30, 2007. ¶12. (U) Unfortunately, the Magistrate failed to recall Nowa's bond, instructing him instead to return to court two weeks later for sentencing. In a personal conversation between the RLA and the Chief Judge of the Lilongwe High Court, the chief judge termed this act of release pending sentencing as "highly unusual." It surprised no one when Nowa did not appear at the appointed time. Although an arrest warrant was signed by the Magistrate, he is still, a month later, at large. When the police went to arrest Nowa, his wife told them that he packed his bible and a few belongings, and fled south to the area of Mulanje. ¶13. (U) Comment: No police officer in Malawi has ever before been convicted of criminal conduct arising out of his official duties. This achievement by the Director of Public Prosecutions was therefore highly significant. This case was won despite attitudes ranging from apathy to disguised hostility by some members of the LILONGWE 00000792 003.2 OF 003 police and judiciary. At best, the police search currently underway for Nowa can only be described as "foot-dragging." Nevertheless, the Malawi Police Force was hereby given a wake-up call that its behavior will be held to account in a civilized society. AEASTHAM