Is state toothless?

There are fears the country’s law enforcement agencies hamstrung with shoestring budgets may fail to swiftly prosecute the rising numbers of cases for suspected plunderers of public funds in the previous administration.

But the agencies—Anti-Corruption Bureau (ACB), Malawi Police Service (MPS), Financial Intelligence Authority (FIA) and the Office of the Director for Public Prosecutions (DPP), among others—say in addition to seeking more funding from Treasury, they are also banking their hopes on coordinating all their efforts to do a good job.

Within one-and-a-half months after the court-sanctioned June 23, 2020 presidential elections, ACB and MPS Fiscal and Fraud Section have arrested over 40 people for various crimes ranging from fraud, money laundering, giving false information, abuse of office, corruption to murder allegations.

Those arrested include former president Peter Mutharika’s aides Norman Chisale and Peter Mukhito, businessman Shaffee Ahmed Chunara and 12 police officers who are suspected of killing Buleya Lule a murder suspect. Others are four former Electricity Supply Corporation of Malawi (Escom) staff and former chairperson Jean Mathanga and a councillor from Blantyre Jomo Osman.

The State agencies also arrested three officers from the Malawi Energy Regulatory (Mera) including its Chief Executive Officer (CEO) Collins Magalasi and a business lady Dorothy Shonga for fraud and money laundering. Others are politician Ken Ndanga and Hassan Kassim who were charged with three counts of murder of three members of the Tambala family in Lilongwe.

The agencies have also interrogated a number of people including the immediate past president Peter Mutharika, former deputy commissioner general of the Malawi Revenue Authority (MRA) Roza Mbirizi and parliamentarian Ben Phiri, among others.

The recent arrests have added on the outstanding caseloads some dating back to the 2013 Cashgate scandal when civil servants and businesspeople siphoned K24 billion from the public purse capitalising on loopholes in the Integrated Financial Management Information System (Ifmis).

Underfunding major challenge

Most law enforcement State agencies we talked to—ACB, MPS, FIA and DPP—confirmed that they are underfunded and have inadequate prosecutors and investigators to speedily and adequately handle the increasing cases at the courts.

Our analysis of funding to key institutions in the graft fight since 2014 shows a slack in funding and support to the bodies. ACB, a key body on investigations and prosecutions, has been the worst hit on funding with our analysis showing a 12 percent cut in nominal terms since the 2014/15 fiscal year.

The bureau’s funding rose from K1.4 billion in 2014/15 to K1.8 billion the following year, climbed to K2.4 billion a year later, then slid to K1.8 billion in 2017/18, before fizzling again in 2018/19.

Last year, when ACB was allocated K3.7 billion, governance institutions were only given 50 percent of what they had asked for, according to Parliamentary Chair of the Legal Affairs Committee Kezzie Msukwa.

ACB director general Reyneck Matemba said the money was not enough for the bureau’s activities as it included salaries, rentals, water, electricity and purchase of capital equipment.

ACB’s establishment is 25 prosecutors and 58 investigators. But the firm only has seven prosecutors and 32 investigators.

Coordination crucial

To speed up the prosecution of cases, the law enforcing bodies say they will be relying on working as a team through coordinating their efforts and sharing information.

In an interview Matemba observed that in the face of inefficiencies brought about by inadequate staff and funding, the bureau will also continue to prioritise cases that need to be investigated and prosecuted.

But he stressed the need for the agencies to develop a strong and coordinated working relationship when dealing with allegations of “serious and organised fraud” involving billions of Malawi kwacha.

“This is a joint responsibility of all law enforcement agencies and not only the ACB and we continue to collaborate and coordinate in all our work,” said Matemba.

The ACB boss who in an earlier interview described the level of plunder of public resources in the immediate past administration as a ‘Tsunami’ said his office already approached government on the issue of inadequate funding and authorities have undertaken to look into the issues and address them.

But he could not give a specific number of prosecutors and investigators that will be recruited saying for ACB to recruit, it needs to get authority from the Department of Human Resource Management and Development as well as Treasury, for financial reasons.

FIA, on the other hand, with a staff establishment of 50, currently only has 26. FIA’s investigation section has a staff establishment of five but it only has two people who were recruited two years ago.

The firm which analyses financial information and shares it with other law enforcement agencies for their use in initial or enhancement of investigations and prosecutions, says it is also in the process of recruiting additional staff to deal with new cases.

Among others, FIA has the ability to trace proceeds of crime with a view to execute preservation and confiscation of the assets in accordance with provisions in Financial Crimes Act.

Spokesperson for FIA Masautso Ebere explained in an interview that with the new arrests, the institution which he said has developed best practices from investigations and prosecution of Cashgate cases and other financial crimes, hopes for more coordination from other State agents.

The Office of the DPP and police also admitted of staff challenges but were unable to furnish us with figures.

The offices are also struggling to carryout various activities including investigations due to inadequate funding and have since called on government to help with additional funding to beef up staff especially investigators and prosecutors.

In an e-mailed response spokesperson for Ministry of Justice and Constitutional Affairs Pirirani Masanjala observed that apart from the need for additional finances and human resources, there is also need for coordination with other State agencies in both prosecution and asset recovery aspects of the cases.

Said Masanjala: “There is need for information sharing at the earliest opportunity possible, and collaboration through joint investigations and prosecution—as may be agreed upon—in cases where both institutions are pursuing same suspects.”

Newly-appointed Minister of Justice and Constitutional Affairs Titus Mvalo said in a separate interview, for every successful investigation and prosecution that can yield a conviction, which is an ultimate goal for investigating and prosecuting agencies, it is imperative for law enforcement agencies to coordinate and work together.

When contacted for his comment on the request for additional funding to ACB and other law enforcing agencies, Treasury Secretary Chancy Simwaka was non-committal, saying funding requests go through several processes including the Cabinet and Parliament and therefore it was premature for him to share anything with the public on the matter.

Said Simwaka: “Just wait until we are through with the processes of engaging Cabinet and Parliament. It is only then that we will be able to give you more information on what we have agreed with ACB or indeed any other establishment.”

Capacity challenges

In an interview private practice lawyer John-Gift Mwakhwawa observed that the serious capacity challenges facing State agencies may inevitably lead to compromised processes such as inadequate investigations that may result in failed prosecutions.

Mwakhwawa who is also former president for Malawi Law Society (MLS) also feared that the whole accountability processes may be compromised as a result of the challenges and lead to selective justice.

Said Mwakhwawa: “One of the tenets of good governance is that justice must not be done but it must be seen to be done. An accused person must be tried with within a reasonable time.

“It is therefore important to enhance capacity in all these law enforcement agencies not just in terms of human resource but also funding. It’s common knowledge that DPP chambers don’t have the capacity to deal with all impunity that has gone on in the country since 1994, and it is because of that that a lot of people who otherwise could have been held accountable have not faced justice.”

He also described as an unhealthy situation at ACB where the graft-busting body’s director general is mostly the one moving from one court to the next because of capacity challenges.