Red tape stalls recovery fund

Delays to put in place guidelines have left idle cash in excess of K1.5 billion as well as other assets in the Confiscation Fund as recovered from corruption suspects, to the chagrin of stakeholders.

In separate interviews this week, civil society organisations (CSOs) and legal minds said the delays to promulgate regulations to make the Confiscation Fund operational defeated the whole purpose of the initiative.

Ministry of Justice, according to National Advocacy Platform (NAP) chairperson Benedicto Kondowe, promised last March that the regulations would be ready by July 2023. However, nine months later, nothing has happened.

In an interview yesterday, he said the delays were a cause for concern and need urgent attention and action to address.

Said Kondowe: “As highlighted during our CSO engagement with the Minister of Justice on 20th March 2023, the unresolved status of the Confiscation Fund and unaccounted for assets recovered from corruption cases reflect a systemic failure that undermines the integrity of anti-corruption efforts.

“With K1.5 billion restituted funds languishing unused and unliquidated assets awaiting disposition, the potential impact of these resources on combating corruption remains untapped.”

He said the assurances by the Ministry of Justice to finalise the guidelines by July 2023 should be swiftly followed through to ensure accountability and transparency in the management of recovered assets.

Said Kondowe: “Urgent action is imperative to address this critical issue and uphold the principles of justice and integrity in our society. The more the delay, the more likelihood that the same recovered property will end up being taken by other individuals.

“Let them expeditiously develop the regulations so that we have a framework that can guide use of the confiscated funds, and assets recovered. The ministry should fully account for all properties recovered; we don’t want it to end in other people’s hands.”

University of Malawi law lecturer Alexius Kamangila said it was important to have systems that work which include confiscation and eventual disposal of the same.

He said: “If someone has benefitted from crime or unjustly enriched themselves, then they should not benefit from such illegality and confiscation is the way to go. What is essential is to have working trust obligations.

“Once the State has taken that money, whether it is still fighting in court or not, the money should be invested. The person who is suspected to have committed a crime or accused of unjustly enriching themselves may end up being innocent and therefore should not lose out.”

Kamangila said where the State has decided to confiscate property and money, it was important to have a way of ensuring that value is not lost, but ensuring that such money, vehicles and buildings are protected, invested and make profits.

He cited Angola where the government has used confiscated funds to repossess property even from other countries where its citizens hid the money, and end up running such properties, which brings money to that country.

Said Kamangila: “Securing these things should not be with high risks because there have been situations where government institutions or parastatals have invested in places where they have ended up losing, Alliance Capital being a good example.

“When that happens, people who make those decisions need to be held accountable for failure to do due diligence.”

Seasoned prosecutor Kamudoni Nyasulu said it was tiresome to keep on talking about the same thing, “yet there is no movement”.

In an interview yesterday, Secretary for Justice and Solicitor General Allison M’bang’ombe said they expect to have regulations done by end of April.

He said: “We discussed the regulations with the Ministry of Finance and we are at an advanced stage to finalise them. The Director of Public Prosecutions [DPP] is leading the team to formulate the regulations.

“We are targeting end of April to finalise everything.”

DPP Masauko Chamkakala said a meeting was convened on Wednesday by his office, Ministry of finance and Economic Affairs and Financial Intelligence Authority (FIA).

He said they are looking at how best the fund can be managed.

In 2022, Malawi engaged United Kingdom-based assets recovery specialist Carolyn Lamptey to help in the fight against corruption and recovery of assets.

Section 48 (2) of the Financial Crimes Act (2017) provides relevant courts with the mandate to order forfeiture or confiscation of tainted property of a convicted person.