Corruption remains Malawi’s biggest enemy and it is no longer a secret that the vice is among the many reasons behind the country’s failure to attain meaningful development.
According to the Corruption Perception Index, most of the state agencies and departments rank high on the index raising questions about the country’s commitments in taming the practice.
It was therefore a sight of a new dawn when on September, 09th 2022, President Lazarus Chakwera assented to the Corrupt Practices Act of 2022.
With the country performing badly on the Corruption Index; the presidential assent seemed a viable tool for the fight against corruption.
Came December 2022, Malawi ranked 110 on the Corruption Perception Index; with 34 points on its efforts in fighting the vice.
No wonder, the presidential assent restored some hope as the new legislation provided the ACB powers to prosecute cases without having to seek consent from the office of the Director of Public Prosecution.
Now; months down the line, what has changed with the fight against corruption?
Whilst the feeling would be different elsewhere but local structures feel the assent is just progression on paper, with zero significance on the ground according to Matthias Chilumba chairperson of Malemia Area Development Committee in Nsanje district.
“No no no no! there is no headway. We are making zero progress in this fight. There are many corruption cases that are yet to be completed and that tells a sad story”, lamented Chilumba.
Given that 20 percent of the national budget goes down the corruption drain, some minds think it’s’ time Malawi revised Section 91 of the constitution which provides immunity to the prosecution of the sitting head of state.
George Phiri a political analyst thinks the corruption narrative would be different if this piece of law was repealed considering the historical trend of corruption allegations on all former heads of state.
The status quo; Phiri fears sanctifies corruption by heads of state as it persecutes those without political connections; and with petty offenses.
“What we are seeing in Malawi is that the leader himself is also found with the same problem of corruption. Since we adopted multiparty democracy in 1994 to date, all the leaders that have been there have been vindicated by section 91 of the constitution as if they are corrupt free, but you will find that all of them after leaving office, have been accused of corruption. Now if all these leaders have been fighting corruption, how possible that they themselves were corrupt?” wondered Phiri.
On the other hand, a transparency and accountability watchdog Catholic Commission of Justice and Peace has issues with the handling of corruption cases.
Hence Boniface Chibwana national coordinator for the commission questions why corruption cases often take long and why suspects are often released on bail the soonest they are arrested.
“You know a number of people that we have seen that they have been arrested, they have been given bail and moving freely in the country. Of course, at the end of the day, we would say the court didn’t find them guilty. But at the end of the day, we will need tangible conclusions from those cases otherwise it would be seen as just scaring away those people and then at the end of the day they are moving freely and they are enjoying the perceived wealth that they have gotten through corrupt practices” observed Chibwana
All these considered, an anti-corruption watchdog National Anti-Corruption Alliance delves into resources.
Moses Mkandawire chairperson of the alliance thinks resource constraints have been a major setback for the fight against corruption.
“Let us look at other systems and practices that we have particularly with regard to the capacity of ACB in areas of prosecution, resources that are allocated to ACB, in terms of how they get those resources from the accountant general because I see and hear that there are bottlenecks. And then we should also look at the role of the judiciary itself with regard to the numbers of Judges and Magistrates and so on and so forth” Mkandawire said.
Not surprisingly, given these bottlenecks, professor of law Edge Kanyongolo says it was too early to celebrate the assenting of this law.
“So I think that without amending the corresponding constitutional provision, the amendment of this Act may be a necessary step but certainly not sufficient. The speedy prosecution of cases depends on a whole lot of factors, and you know it’s not just the law, in fact, I would argue that the law is one the least important factors in determining the speedy prosecution. You know there are too many factors that go into cases, for example, does the government have enough lawyers at ACB, do the court have enough Judges, does the procedural rule provide for the speedy resolution of the case, but you can even go beyond that” said Kanyongolo.
For him; the fight against corruption needs more than a mere presidential assent of the Corrupt Practices Act.
He said “Removing the power of the director of the public prosecution to give consent still leaves another law in place and that is the constitution and under the constitution, the DPP has the power to take over any prosecution or discontinue any prosecution so even without the consent of the ACB goes ahead and says we are now free they will still meet the DPP using his constitutional power and he might say am taking over this particular case and discontinue it. So, discontinuation and consent are too different things”.
All these put on her plate … Martha Chizuma – the ACB boss agrees. As one way forward she suggests it’s time the nation began to explore other avenues including forfeiture of assets for corruption convicts considering the longer time it takes to prosecute corruption-related cases.
“It’s high time we focused on the assets recovery process and what we have done as a bureau is that we have set up a team comprising of lawyers and investigators in the bureau strictly focusing on assets. There has always been a law of forfeiting and seizing of tented assets under the Corrupt Practices Act and also under the new Financial Crimes Act” narrated Chizuma.
For Chibwana decisiveness in ensuring logical conclusion of corruption-related cases is a key in taming the vice.
“I think we need to have decisive measures in as far as investigation of these cases is concerned and indeed if such cases go to court at the end of the day, we will need to have the tangible and logical conclusion of those cases,” said Chibwana.
Echoing Chibwana is Mkandawire from the national anti-corruption alliance and he says the story should be different if the country invests resources in the fight against corruption.
“Let’s go beyond the law because the law in itself might not be the problem we need speedy delivery of these cases given the fact that in 2012 we had Cashgate cases but unfortunately there are some that have not been brought before the court up until today and that is quite challenging with regard to the fight against corruption,” observed Mkandawire.
Phiri on the other hand stressed much on scrapping Presidential Immunity, which he regards as a key element to ensuring those in authority desist from the vice
“If we are to fight corruption let everyone be equal before the law, when the president has been cleared by the law not because of immunity, that leader can fight corruption but not in the presence of the laws that protect others from being investigated while allowing others to be investigated. Corruption can be fought only by leaders who put everyone equal at law”, Phiri said.
Nonetheless, irrespective of the challenges at hand; there’s some feeling there’s still plenty of hope if the nation chooses to win the fight against corruption.
Matthias Chilumba chairperson of Malemia Area Development Committee in Nsanje district explains how.
“This is not one man’s job; it needs collective action. The citizenry and various agencies need to join hands if as a country we are to win the fight against corruption” said Chilumba.
Of course, there will be reservations with any fight and let alone this against corruption.
However, like Peter Eigen founder of Transparency International observes “People should be conscious that they can change a corrupt system.”
Nothing is impossible … if soldiers were to go onto the battlefield already defeated there would be no reason to fight.