Muluzi freedom raises queries

Former president Bakili Muluzi may now have peaceful sleep following the discontinuance of his K1.7 billion corruption case, but some lawyers have said his discharge is a blow to the fight against corruption.

The High Court of Malawi sitting in Blantyre yesterday freed him from all charges in the $12 million abuse of public funds case that has dragged for about 14 years after Director of Public Prosecutions (DPP) Masauko Chamkakala issued the order dated May 26 2023.

In an interview later, the DPP said he would brief the Legal Affairs Committee of Parliament on the issue on June 4, as such, he would not want to pre-empt his report by divulging the justification in the media.

But reacting to the development yesterday in separate interviews, South Africa-based legal scholar Danwood Chirwa and lawyer Justin Dzonzi observed that the discontinuance of the case pointed to the country’s failure to prosecute high-profile corruption cases.

Chirwa, a professor of law at the University of Cape Town, said the discontinuance was expected after former Anti-Corruption Bureau (ACB) director general Rayneck Matemba prepared the path by stating that the matter needed a political solution because it was not prosecutable.

However, he said the discontinuance of the case exposes the mockery of the Malawian anti-corruption effort and “represents the lowest watermark for the ACB in terms of its record of prosecutions and convictions”.

Said Chirwa: “This institution [ACB] has truly become a toothless bulldog. The discontinuance shows, once again, that corruption by those at the top will be tolerated and left unpunished, at great expense to Malawians.

“This is why every government is engulfed in unending cycles of looting, corruption and embezzlement. As chances of accountability range from minimal to zero, there’s no disincentive to such bad behaviour.”

Dzonzi, on the other hand, said people’s expectations were to see Muluzi’s case concluded in court.

He said: “This may actually not be the problem of the court or DPP, but it might the problem of the ACB itself.

“I was privileged way back to the kind of evidence that the bureau had against the former head of State, based on the evidence as I saw, it was exceedingly difficult for the bureau to secure a conviction against him.

“The way the whole event was put together, my view then and even up to now is that although it pointed towards a certain level of abuse of office, it was not strong enough perhaps to warrant charging the former head of State with the corrupt offences.”

Malawi Law Society president Patrick Mpaka said Chamkakala should explain himself to the public through the Legal Affairs Committee of Parliament before June 5 2023 as required by Section 99(3) of the Constitution on why he has discontinued the Muluzi case.

But Chamkakala told The Nation: “As to the reasons [for the discontinuous], I wouldn’t wish at this stage to pre-empt my report to Parliament. Once I submit the report, I will happily discuss the reasons with you.”

Earlier yesterday morning, High Court Judge Violet Chipao revoked Muluzi’s bail and that all his property seized in relation to the case be freed.

“But the discontinuance of the matter does not bar the recommencement of the case within six months, when the need to recommence the matter arises,” she said.

Soon after the discontinuance, some of Muluzi’s sympathisers broke into jubilation, some of them dancing and others ulutating.

Muluzi, who physically attended the court proceedings, could also not hide his happiness as he exchanged hugs with his sympathisers and lawyers.

In an interview after the court’s decision, one of the lawyers representing Muluzi, Tamando Chokotho expressed excitement that his client was freed. He said the decision was not surprising.

He said there have been a series of events that showed that the matter may never be concluded.

Said Chokotho: “For those that have been following the case, when we had cross-examined [former ACB assistant director] Victor Banda, the main investigator in the matter, he mentioned the fact that had it been he had properly investigated all issues, he would not have arrested Dr. Muluzi.

“And you can also recall that two former ACB directors general, Mr. Matemba and Mr. Lucas Kondowe mentioned that this matter is not prosecutable.”

Matemba is on record as having said the case needed a political solution because it is not prosecutable.

Matemba, who once prosecuted Muluzi before he recused himself in the case when he was ACB deputy director general, held a strong personal view that no one would come at the bureau and successfully prosecute Muluzi in the case that dragged for about 14 years.

“I was the seventh person to prosecute that case. It doesn’t mean we’re all failures and did not know our work. I had my own reasons why I recused myself from that case, which I only provided to the previous Legal Affairs Committee of Parliament,” he said.

Lawyer representing ACB Clement Mwala said the bureau could not object to the DPP’s decision because every public prosecutor works under the directions of DPP.

In January 2021 the quasi-religious body Public Affairs Committee (PAC) asked government to discontinue Muluzi’s corruption charges relating to K1.7 billion he allegedly diverted to a personal bank account.

The proposal was among several other points which PAC had raised in its statement assessing the year 2020.

In the statement, co-signed by PAC chairperson Monsignor Patrick Thawale and publicity secretary the Reverend Gilford Matonga, the body cited the lengthy court case that dates back to 2005 as a waste of public funds.

PAC also cited previously pronounced positions by President Lazarus Chakwera and members of his Malawi Congress Party (MCP) before they came in power, who also called for discontinuance of Muluzi’s case.

The statement also specifically cited a statement made by Kasungu South East member of Parliament Khumbize Kandodo Chiponda, now Minister of Health, on February 25 2020 during parliamentary deliberations asking government to drop the charges against Muluzi.

Three of the four presidents after Muluzi, namely the late Bingu wa Mutharika, Joyce Banda and Peter Mutharika, have seen the now 80-year-old being involved in endless court battles in the matter.

Muluzi and his former personal secretary Lyness Whiskey were arrested in 2006 for allegedly stealing K1.7 billion ($12 million) funds which came to Malawi as aid from Taiwan, Morocco and Libya.

He allegedly committed the offence when he was serving as the country’s president between 1994 and 2004.

However, Muluzi denied wrong doing, saying no foreign country would deposit donor money in a personal account and claims the case was trumped up for political reasons.

The trial started in 2009, but the case faced several adjournments mostly due to Muluzi’s poor health as he sought medical treatment in the United Kingdom and South Africa.

In September 2022, seasoned public prosecutor Kamudoni Nyasulu told The Nation that lack of a clear strategy in recent years was one of the main reasons for ACB’s poor performance.

Out of the 60 Cashgate-related cases in 2014, at least 40 never made it to the trial stage five years after arrests, according to a 2021 Global Integrity Anti-Corruption Evidence Project report.

Besides Muluzi’s case which has cost taxpayers at least K1 billion, the probe on Bingu’s wealth has taken almost 10 years now since the bureau opened it.

In December 2022, the ACB boss Martha Chizuma expressed frustrations over challenges her office was facing to prosecute high-profile corruption cases due to hurdles such as preliminary court orders that stall progress.