Civil asset recovery: a way to curb looting of resources?

In the past few weeks, the media has been awash with news of how the former president, Bingu wa Mutharika allegedly amassed in excess of K60 billion (about $152m) within 8 years of his presidency. There have been suggestions that the late president might have abused his public office and influence in amassing such a huge fortune and it is almost a consensus by the nation that authorities should investigate the source of this wealth. All in all, the story of the late President is not new as the other former presidents of Malawi have been implicated in the abuse of presidential privilege for private gains.

What is new in Malawi is how the country can recover its resources once it has proved that a particular public officer looted public coffers. It is unfortunate that the country’s legal regime emphasises on criminal prosecutions of people suspected to have unjustly enriched themselves. However, it is a fact that there is a point where criminal law becomes useless especially when the suspect cannot stand trial due to death or other medical or social reasons. Sometimes, even where a public officer has successfully been convicted of theft or acts of corruption, that in itself does not provide a guarantee that the country will eventually recover what rightly belongs to its citizens.

This is where civil asset forfeiture becomes a necessity in ensuring that looters of public coffers are nipped in the bud and forced to return the loot back to the poor Malawian person who toils every day, trying to build the country.

Civil asset forfeiture or recovery is a process where the State or individual citizens, using civil courts, rather than criminal courts, bring evidence to establish title to or ownership of money or property unjustly acquired. The advantages of civil law suits over criminal proceedings is that civil courts are less onerous and their burden of proof is less demanding than criminal courts, making it easier to prove a case and recover the assets. Further, Civil suits are not conviction-based; thus, a country can still recover unjustly accumulated assets even though the suspect is dead or has been acquitted in a criminal trial. Lastly, in civil suits individual citizens can litigate on their own initiatives, potentially relieving public prosecutors of a complicated burden.

In view of the foregoing, it is unfortunate that despite asset recovery being a fundamental principle of the United Nations Convention Against Corruption (UNCAC), Malawi has up to now not adopted measures to make asset recovery part of the anti-corruption and anti-money laundering laws. Yet, it is an undisputed fact that the restraint, recovery and repatriation of the corruptly acquired assets of public officials are key elements of the fight against corruption.

Our counter-parts who are serious about fighting corruption have moved ages ahead in providing a legal framework for civil asset forfeiture. That is why Nigeria was able to recover from all over the world, a substantial part of the 16 million fortune corruptly accumulated by Chief Alamieyeseigha, governor of Bayelsa state in 6 .5 years. Likewise, using civil suits, Indonesia has also been able to recover and repatriate corruptly acquired wealth against former president Suharto and his son Tommy.

Corruption, abuse of political powers and theft of public resources are increasingly becoming an acceptable trend in Malawi because we lack serious mechanisms and systems to combat them. Yet as a country, we have reached a point where we must accept that this habit of looting public resources must be halted for good. One of the ways to ensure this is to adopt civil asset recovery mechanisms in our laws.

The world has come to realise that it is no longer enough for governments to prosecute and punish financial wrong-doing only. As such, civil law has developed to a level where it has started taking into account the need to fight financial crime and in particular to provide effective remedies for countries whose rights and interests are affected by massive corruption, theft and abuse of political resources. Simon N.M. Young says “it is an irresponsible government that fails to take steps to recover stolen and unjustly acquired public property.” I agree with him.

—The author is a lawyer and an anti-corruption and anti-money laundering specialist.