A reminder of the past: a speculative outline of the criminal trial of Pamela Gondwe
By Dr Munyonzwe Hamalengwa
The case of Pamela Gondwe, an employee of the former Barclays Bank branch at Longacres in Lusaka, who disappeared on June 10th, 2019 with US $400,000; Euros 22,000 and K250,000 unravels the complexities of the criminal mind and criminal law.
I haven’t forgotten that case. It is still a teachable moment in criminal law where hypotheticals are useful tools to drive the points home. Let’s relive the Pamela Gondwe moment. To most people, what Pamela did was a pure criminal act of actus reus coincident with mens rea (guilty act and guilty mind). She is as guilty as sin. No explanation. No sympathy. She stole and she must be punished. End of story.
But is it that simple? There was a social media article which seemed to highlight the complexity of Pamela’s criminal act and lends credence to the assumption that her act whether you agree with it or not is not that simple. Are they justifying that what she did was justifiable? No. They are simply stating that before you judge her, understand the background and context in which that theft, occurred and make up your mind whether to be sympathetic to this criminal or to still condemn her.
Pamela’s act in fact is the stuff of which criminal law is made. You tell your story and let the chips fall where they may. Criminal law has defences, excuses and justifications. Guilty can be rewarded with mitigations. Charges can be reduced. A straight forward conviction for murder could result in manslaughter and a person who was supposed to hang for murder can walk out of court convicted of manslaughter with time served or imprisonment for two days. Straight forward theft can result in acquittal through the complex defence of colour of right properly deployed. Or convicted as charged but walk out because of mitigating circumstances.
Even a nolle prosequi would not be out of the ballpark in Zambia. An MP charged with assaulting his wife, with evidence of his wife on social media looking battered was Nolle prosequied on June 18th, 2019. GBM who was charged with going after the throat of the President, was acquitted of the offence shortly after rejoining the President’s party. We can only speculate what could have happened if he remained in the opposition and posed a major political threat. Should he have been charged in the first place? In Zambia and in many countries, criminal law and the party in power could be closely allied. That those in opposition continue to get acquitted is not evidence that criminal law is not politicised. This topic is for another day.
A famous American jurist named Oliver Wendell Holmes declared over a century ago that the life of the law has not been logic, but experience. It is logical that Pamela must be convicted, but human experience has not always delivered on logic, but has relied on experience. Individuals in Pamela’s situation have been acquitted or convicted but found that there were serious mitigating circumstances.
A political economist named Karl Marx once declared that property is theft, that if you examined the ownership of property in the budding capitalist economy of his day, and by extension to those who own property today, they acquired their now legitimate and legitimised property, through theft though they were never charged or convicted of the crime of theft. Primitive accumulation of capital including slavery and colonialism down to the modern patterns of land possession is evidenced by theft, supplemented by corruption in high places, state sanctioned usury through enabling laws whereby insurance companies and banks charge exorbitant interest rates for little or nothing or refuse to pay when a claim is made is a continuing pattern of theft.
What does all this have to do with Pamela Gondwe’s theft? Nothing or everything. Is this simply smoke and mirrors? Maybe. Did Pamela operate under the illusion that the money she was taking was not the property of the bank, that the bank stole the money from the public or that the bank did not deserve that money because of the way the money was acquired by the bank? Or did she steal the money as revenge or punishment because of the way the bank treated her over the years?
But let’s listen to that social media article that is circulating that tries to put in context the experiences of Pamela Gondwe that collaterally is a sympathetic defence of Pamela. They state that Pamela had worked for the bank for about 12 years but without any promotion over the years whatsoever despite her grand education, competence and knowledge of the banking industry. She applied for promotion numerous times only to be rejected but seeing some of her friends who opened their legs to the bosses get promoted. Pamela’s income was allegedly K8,000 which was reduced to about K5,000 if loans and taxes were taken into account. Pamela saw middle level and upper level management get housing allowances of K4,500 and bonuses of between K350,000 to K2,000,000 while if she was lucky, her bonus was merely K1,500.
Professor Harry Glasbeek of Osgoode Hall Law School taught me a criminal law course entitled, “Corporation as Criminal” and wrote a closely related book where he makes a compelling case that corporations engage in all types of criminal acts but without being charged and convicted. Criminal acts are compartmentalised in blue collar or white collar crimes. Corruption, a massive economic crime, which is committed by the rich is less zealously prosecuted. Construction companies engage in negligence leading to the death of hundreds of people per year but they are not charged or prosecuted. Glasbeek thinks banks and insurance companies and others engage in state sanctioned and tolerated criminal acts. Corporations are criminals. His take on the Pamela Gondwe case would be more nuanced than the majority of Zambians.
Famous late US prosecutor Vincent Bugliosi wrote a book entitled, “The Prosecution of George Bush for Murder” because of George Bush’s murder of innocent people in Iraq in an unprovoked war in 2002 and counting. Iraq remains in ruins. States and corporations do not get charged for the crimes they commit. Bugliosi would have a different nuanced approach and reaction to the Pamela Gondwe crime. Tu toque (why me alone and not them) may be his refrain when considering Pamela Gondwe.
The social media article in question goes on to state that Pamela wrote a resignation letter early in the year 2019 but management turned her down. The provenance of that social media article is obviously not known but it is there and this write-up is based on that social media article no matter what its bona fides are, which to me are believable, supplemented by my rumination about criminal law above. Did Pamela Gondwe plan her move when her letter of resignation was turned down? Was there collusion? We may never know. Only a criminal trial can unravel some of these questions and more. It has been stated that cross examination is the greatest engine that has ever been created for the ascertainment of the truth.
The social media article goes on to say that Pamela’s facile theft is not uncommon in the banking industry but management is weary of publicising these thefts for fear of alarming the public who would stampede to withdraw their funds. But each bank is also susceptible to the same vissititudes. The banks also don’t publicise for fear of copycat actions by other employees. Will Pamela Gondwe have copycats? The banking industry is terrified.
There is more pure speculation. Did Pamela have inside help? If true, why did management reject her resignation letter? Did someone from management facilitate her theft and fleeing? Will that money be shared with someone in management? Who facilitated her using the VIP entry and exit at Kenneth Kaunda International Airport? In criminal law, there can be a crime in which there is a principal and secondary aiders and abettors as well as joint enterprise offenders. Was Pamela a principal or merely a mule paid to ferret the loot out of the country? Or did Pamela commit a joint enterprise offence with some top management in the bank? If Pamela testified and laid it all out how she could not have pulled off this theft without some participation of top management, would you still look at her theft in the same light as you do now? Would everything still be the same? Would you still look at the banks in the same light of awe as you do now?
Right now, I am speculating a lot but if Pamela ever gets caught, we may be subjected to amazing facts that we cannot comprehend in advance. We may be yet to know that facts and truth are more intriguing
and alarming than fiction. And that is the beauty of criminal law.
The author teaches Criminal Law and Law of Evidence in Law School. Send feedback to: munyonzwe.hamalengwa@zaou.ac.zm, forthedefence@yahoo.ca