n Malawi Law Journal - The constitutionality of the reverse onus in cases of theft by public servant
|Article Title||The constitutionality of the reverse onus in cases of theft by public servant|
|© Publisher:||University of Cape Town|
|Journal||Malawi Law Journal|
|Author||Michael Goba Chipeta|
|Publication Date||Jan 2007|
|Pages||33 - 47|
Section 283(1) of the Penal Code shifts the burden of proving the offence of theft by public servant from the prosecution to the accused. This article examines the constitutionality of this section with particular reference to the right to be presumed innocent. It concludes that this section is inconsistent with this right and cannot be saved by the limitation provisions in sections 44(2) and (3) of the Malawian Constitution. The effect of this conclusion is that the prosecution retains the burden of proving all elements of theft in addition to establishing that the accused was a public servant, received money or property in the course of his or her employment, and failed to produce or account for it.
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