VZCZCXRO6682
RR RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHLG #0792/01 2960721
ZNR UUUUU ZZH
R 230721Z OCT 07
FM AMEMBASSY LILONGWE
TO RUEHC/SECSTATE WASHDC 4726
INFO RUEAWJB/DOJ WASHDC
RUEHLMC/MCC WASHDC
RUCNSAD/SOUTHERN AFRICAN DEVELOPMENT COMMUNITY

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