The Malawi Supreme Court of Appeal Judge Justice Dorothy Nyakaunda Kamanga has found private practice lawyer Alexious Kamangila guilty of perjury for fabricating facts and lying under oath in a criminal case where the lawyer was defending a murder convict.
In her ruling, sitting as a High Court Judge, dated 16 September 2024, Justice Kamanga bashed Kamangila for being dishonest and lying under oath in his affidavit to release his client from custody.
Kamangila was defending Wyson Big Bannet who, together with Myson Viera Chizizira were convicted of murder way back in 2013 in a homicide case which was tried by the late High Court Judge Justice Joseph Manyungwa.
Justice Kamanga said is her ruling that at the time of the demise of Justice Manyungwa in 2013, the judgement against the second defendant (Bannet) remained pending, thereby necessitating the formulation of a case management protocol to assign another judicial officer to prepare and render the judgement.
“After delivering the judgement on 19 April 2018, both the prosecution and the defence were instructed to prepare and file submission as a plea to mitigate the sentence. For reasons presumably known solely to the involved parties and their legal practitioners, this directive has not been complied with, despite numerous reminders disseminated through the office of the Registrar,” said Justice Kamanga.
She also noted that Bannet committed the crime in 2007 but the trial was heard in 2013 and the judgement passed in 2018 and said ‘the main delay that this court deems justifiable pertains to the interval between the demise of the trial judge and the delivery of the judgment’.
She bashed the defence lawyers for the delays occurring between when the judgement was passed and sentencing describing their conduct ‘delay tactics and professional negligence’.
Justice Kamanga therefore sentenced Bannet to 36 years imprisonment starting from the day of his arrest.
But she had no kind words for lawyer Kamangila.
“In the current case, it was procedurally inappropriate for the defendant and his legal practitioner to exploit the passing on of the trial judge and the ensuing delays in reassigning the case to seek applications before courts for unconditional release and discharge,” said Justice Kamanga.
“It is quite perplexing that the defendant and his legal counsel, who has thus far neglected to furnish the necessary documentation relevant to sentencing, are disseminating erroneous information about the legal status of the defendant and the progress of the proceedings in this homicide case, seemingly aimed at undermining the judiciary as a foundational institution and its judicial officers.”
“The judgement that determined the second defendant’s guilt and resulted in his conviction was delivered in his presence, along with that of his legal practitioner at that time on 19 April 2018, thus the current efforts by his counsel to indirectly challenge the conviction by portraying and staging the convict in a motion and in the media as a long-term remand prisoner is to ‘act without diligence’ and is deemed unprofessional and unethical conduct on the part of the lawyer, which the court will not condone,” said Justice Kamanga.
“The defendant and his legal counsel demonstrated a reluctance to conform to the established practices and procedures relevant to the management of criminal cases. It appears that their primary motivation is a desperate endeavour to evade the sentencing process by filing motions before various judges and engaging in litigation within the media sphere, possibly in an attempt to harass and influence the sentencing court to discharge the offender without adhering to the requisite due process.”
“It is regrettable and lamentable that recently some members and leaders of the Malawi Law Society seem to have become enmeshed in a form of publicity contest, wherein they exploit the circumstances of litigants to draw attention to themselves and the noble legal profession, thereby diverting focus from the essential professional responsibilities of legal practitioners and the ultimate objective of improving access to justice for all,” said Justice Kamanga.
“How the defence has managed this case, indicates a significant level of incompetence on the part of the legal practitioners who claim to assist the second defendant. It is also observed that Counsel Alexious Kamangila engaged in perjury in paragraphs 9 to 13 of the sworn statement in support of the application for release, discharge and effective remedy that was filed on 12 July 2022, wherein he swore that the defendant is innocent and is awaiting judgment despite the defendant being fully aware that he appeared in court on 19 April 2018 for the delivery of the judgement.”
“There is always a risk of perjury when parties make statements under oath or counsel swear affidavits on behalf of their clients. Furthermore, it is imperative that when legal practitioners seek to represent a party in a specific matter, they must file and serve a notice of change or appointment of a legal practitioner before undertaking the handling f that matter in compliance with the law.”
“Had the aforementioned legal practitioner adhered to the proper procedure of engaging lawyers, he might have respected the actions of the other lawyers regarding the case and been more informed about the previous proceedings, thereby avoiding the pitfall of fabricating facts, lying and perjury,” said Justice Kamanga.
She said the Bannet retains the right to apply for an appeal against both the conviction and the sentence imposed.
According to Section 102 of the Penal Code, perjury in a written statement is punishable by 7 years imprisonment while Section 105 of the Penal Code, fabricating evidence is punishable by 7 years imprisonment. Section 106 of the Penal Code provides that false swearing before a commissioner for oaths is punishable by 2 years imprisonment.
