Weak and incoherent legal framework, delayed funding to law
enforcement agencies like the Anti-Corruption Bureau (ACB) and influence from politicians are among contributing factors to Malawi’s poor showing in fighting corruption, a new study shows.
The findings are contained in two-country case studies of the project Fighting High-level Corruption in Africa: Learning From Effective Law Enforcement released by Britain’s Foreign Commonwealth and Development Office (FCDO) with funding from Global Integrity Anti-Corruption Evidence Programme (GI-ACE) covering the period 2019 to 2021.
The study laments that the legal framework is characterised by a patchwork of statutes, resulting in discrepancies, overlaps, gaps and lack of clarity.
Just as the Human Rights Defenders Coalition (HRDC) had previously decried, the report also observes that prolonged corruption trials due to adjournments, lack of resources and other disruptions also negatively frustrate the fight against corruption.
Reads the report in part: “Law enforcement agencies are generally as underfunded and overwhelmed as all government departments. Experienced staff are in low supply and daunted. Investigators and prosecutors, even at the same agency, do not work together to deal with high-level corruption cases.
“Law enforcement officials investigating or prosecuting in high-level corruption cases may face threats, intimidation or worse. The most extreme case was the murder in July 2015 of the director of corporate services of the ACB [Issa Njaunju], which has not been solved.”
To ensure uniformity and clarity, the report suggests a thorough review of the Penal Code, Corrupt Practices Act, Public Finance Management Act, Financial Crimes Act, Public Procurement and Disposal of Public Assets Act and Malawi Public Service Regulations.
On institutional architecture, the report decries that financial management is hampered by lack of compliance and flaws in the operation of the financial management information system and auditing.
It also says the Integrated Financial Management Information System (Ifmis), the Malawi Government’s electronic payment platform, has failed to control theft of public funds due to weaknesses in system security, oversight and maintenance, detailing how government workers penetrated the system during the infamous Cashgate in 2013.
It reads: “There is a clear expectation that criminal and especially civil forfeiture will be playing a more important role as Malawian law enforcement agencies gain more experience, but it is fair to say that the challenges in this domain remain formidable.
“Malawi is a cash economy and as soon as money is drawn from a bank account it is almost impossible to trace it unless the suspect is in possession of the cash at the time of arrest or has deposited or used it, leaving an audit trail.”
On the other hand, the report adds that politicians and other elites in society have worsened the problem and occasionally “seek to influence the law enforcement agencies despite their organisational independence”.
It also observes that Malawi’s political and bureaucratic elite is a small and tightly-knit community where personal relationships tend to override bureaucratic hierarchies and procedures.
The report recommends esablishment and adherence to transparent appointment procedures based exclusively on applicants ’ merit , performance and potential for all positions in law enforcement to ensure independence.
The findings confirms that the state of corruption in the country continues to worsen as the 2020 Transparency International (TI) Corruption Perceptions Index (CPI) released in January 2021 ranked the country on position 129, scoring just 30 points.
But some local experts have argued that Malawi can still deal with corruption with strong political will and strengthening of laws to deal with controlling officers who misuse public resources. They also submit that active citizenship can boost the anti-graft fight.
In an interview yesterday, anti-money laundering law expert Jai Banda said Malawi still has laws that can easily help deal with the vice, but there is serious lack of political will.
He said: “We need political will because most of the laws are there. It’s just a matter of making sure that they are enforced without a barrier or choosing who comes from which party. It should just be across the board.
“We need political will to ensure that there is enough funding to all stakeholders like MRA [Malawi Revenue Authority], ACB and Financial Intelligence Authority.”
Banda also stressed the need to change the mindset of people, especially service providers. He observed that “people in Malawi don’t do their job unless they are given some money”.
Where politicians exert pressure on public officials to engage in corruption, he suggests witness protection programmes so that even civil servants who report them remain safe.
Private practice lawyer John-Gift Mwakhwawa, who is also dean of law at Catholic University of Malawi, agreed that political will must be accompanied with active citizenship.
He said beautiful as pieces of legislation may be, how they are enforced determines the outcome.
Mwakhwawa said: “In the first place what is required is to put in place the required legislation, but that in itself will not achieve anything if there is no political will to fight corruption by way of enforcement.
“Political will may also be nothing if there is no public mindset change towards combating corruption. If the citizenry is embedded in corruption, government will struggle to fight corruption.”
He said the citizenry should take an active role by following up on how public money is used in the country. He cited how some citizens started demanding accountability on the K6.2 billion Covid-19 funds, which later saw an audit and arrests of some government officials.
In a separate interview, former finance minister Joseph Mwanamvekha called for the need to strengthen the Public Finance Management Act to ensure that deviant controlling officers are punished.
He said: “One of the areas that need to be looked at, particularly with regard to the Public Finance Management Act is how to manage the resources that are given to MDAs [ministries, departments and agencies].
“What happens is that the controlling officers are not necessarily taken to task when there is misuse or abuse of resources. Normally, they are not answerable. It is high time we changed that so that they become answerable.”
Section 10 (1c) of the Public Finance Management Act stipulates that each controlling officer is responsible for ensuring that all accounts and records relating to the functions and operations of the ministry are properly maintained.
In Section 88 (1b), the Act indicates that a person commits an offence if he or she refuses to produce any records in his or her possession when required to do so.
But Mwanamvekha observed that there is no stipulated punishment for deviants.
In his presentation on Public Purse: Use, Misuse and Abuse of Government Resources, Malawi Defence Force lawyer Dan Kuwali, an international law expert who also teaches law at the University of Pretoria, said Malawi’s public finance management laws are impressive on paper, but not formidable because of loopholes that promote abuse of public resources.
He urged the need to inculcate a culture of integrity and professionalism as well as integrity checks.
M i n i s t r y of Fi n a n c e spokesperson Williams Banda said they are finalising reviews of such laws as Public Audit Act, Public Finance Management Act and strengthening Ifmis and human resource systems.
“We hope that there will be zero tolerance to plunder because the systems will be re-fenced,” he said.
The Corrupt Practices Act in Section 25 B (1) speaks against public officers abusing public offices for personal advantage or for the advantage of other people to obtain wealth, property, profit or business interest.
In his State of the Nation Address delivered in Parliament on May 12 2021 at the opening of the third meeting of the 49th Session of Parliament, President Lazarus Chakwera urged the Judiciary to expedite the creation of special courts to efficiently dispose of cases of corruption and theft of public funds.
In February, the President also ordered an audit of the K6.2 billion Covid-19 funds.