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


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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

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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

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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