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Part 2 Country Case Studies, 9 A Hollow Commitment? Constitutional Promises and Anti-Corruption Efforts in Malawi

Mwiza Jo Nkhata

From: Corruption and Constitutionalism in Africa

Edited By: Charles M. Fombad, Nico Steytler

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 26 November 2022

(p. 212) A Hollow Commitment? Constitutional Promises and Anti-Corruption Efforts in Malawi

1.  Introduction

In 1994 Malawi adopted a new constitution in an Act that was hailed as a watershed moment in the country’s history,1 one marking the end of a thirty-year dictatorship, ushering in multiparty democracy, and imbuing laws with a transformative potential, arguably, making them better disposed to the needs of the poor.2 The Constitution prescribes two sets of fundamental principles to guide its provisions and subsequent legislation, policy, and actions,3 the first set contained in section 12 and the second in section 13.

Section 12 stipulates that all ‘legal and political authority of the State derives from the people of Malawi’ and that it is to be ‘exercised in accordance with’ the Constitution ‘solely to serve and protect their interests’. This principle is followed by two tenets referring expressly to the notion of trust,4 one of which requires all ‘persons responsible for the exercise of powers of State’ to do so ‘on trust’ to ‘the extent of their lawful authority and in accordance with their responsibilities to the people of Malawi’.

In turn, section 13 stipulates that government policies and legislation must promote ‘the welfare and development of the people of Malawi’. The goals related to this cover a range of areas, including gender equality, health, children, the elderly, economic management and public trust, good governance, and rural life. In particular, under section 13(o) the government is enjoined to ‘introduce measures which will guarantee accountability, transparency, personal integrity and financial probity and which by virtue of their effectiveness and visibility will strengthen confidence in public institutions’.

Although the social contract emphasis in sections 12 and 13 is strong, it is clear that, in shaping Malawi’s governance paradigm, the Constitution attempts to strike a balance between the social contract and the social trust or public trust.5 In overall terms, therefore, the (p. 213) Constitution promises good governance informed by such tenets as accountability, transparency, participatory governance, the establishment of an enabling legal and judicial framework, and—notably—combating corruption.6

In spite of this clear constitutional commitment, however, the statistics on corruption in Malawi make for grim reading. This is apparent from the country’s ranking on the Transparency International Corruption Perception Index7 as well as the Mo Ibrahim Index of African Governance.8 The statistics in this regard suggest that despite the constitutional promise of good governance, successive governments in Malawi have shown but a hollow commitment to, generally, good governance, and specifically, the fight against corruption.

This chapter is an evaluation of Malawi’s anti-corruption efforts since 1996, the year the country’s first legislation dealing specifically with corruption became operational. To set the context for the dynamics of corruption in Malawi, the chapter begins with a brief historical overview of the situation before 1996. This is a prelude to the main business of the discussion, namely an assessment of the work of the Anti-Corruption Bureau (ACB) and its successes and failures over the years as measured against the prescriptions of the Constitution. The evaluation is conducted by referring primarily to the fundamental principles of the Constitution as well as the principles of national policy. A key argument in this chapter is that these principles must always be the guiding beacons for the work of the ACB and thus too the basic standards against which it is assessed. The chapter also contends that the Constitution’s fundamental principles generate imperatives requiring that Malawi should be corrupt-free and hence that all anti-corruption work is stamped with a constitutional imprimatur. The chapter concludes by making some suggestions about the way forward in fighting corruption in Malawi.

2.  Corruption in Malawi in historical perspective

Corruption is not a new phenomenon in Malawi; its dynamics, however, have not remained static. The brief history that follows proceeds by highlighting the nature and prevalence of corruption during the terms of office of each of the country’s presidents. As will be seen, the personality and leadership style of each of the presidents has had a bearing on the incidence of corruption.

Hastings Kamuzu Banda (1964–1994), Malawi’s first president, presided over a huge patrimonial network and used his influence and authority to appropriate state resources for personal use. The form of corruption prevalent during his era has been described as ‘extractive corruption’.9 Banda deployed his large network of companies not only to extract wealth from the state but also to distribute the patrimony on which his regime relied for survival. Patronage and the appropriation of state resources were tightly controlled and made the preserve of a few ruling party officials and senior civil servants.10 It was easy, during this (p. 214) time, to maintain the impression there was little to no corruption in the country, given that there was no free press and hardly any public discussion of corruption or governance issues in general.11

Banda’s regime never passed any legislation that specifically dealt with corruption. During his rule, the only provisions in this connection were to be found in Part X of the Penal Code.12 As originally framed, corruption under the Penal Code was a misdemeanour with a maximum penalty of three years’ imprisonment. Classifying corruption as a misdemeanour was a serious impediment to the fight against corruption.13 A further obstacle was the procedural requirement that corruption and abuse of office could not be prosecuted without first obtaining the consent of the Director of Public Prosecutions. It meant that, in practice, objectivity in determining prosecutions was compromised, given that the Director of Public Prosecutions was subject to supervision by the Minister of Justice, who was a political appointee.14 Commendably, Part X of the Penal Code was amended to upgrade corruption to a felony, the penalty for which is a minimum sentence of five years’ imprisonment.

A common conclusion is that corruption became more widespread under Banda’s successor, Bakili Muluzi (1994–2004). In contrast to Banda’s era, corruption under Muluzi’s rule was predominantly ‘distributive’,15 that is, in return for loyalty and support, his regime offered patronage and thereby maintained its power.16 Again unlike Kamuzu Banda, who seemed to have had a clear, long-term vision for the country and used patronage to support his vision, Muluzi did not appear to have such a vision and instead subordinated the country to his patronage system.17 Overall, corruption in Malawi was ‘democratized’, in the sense, first, that access to state largesse broadened, and, secondly, that corruption with impunity became pervasive at all levels of society.18

Unsurprisingly, after stepping down from office, Bakili Muluzi was arrested and charged with corruption and abuse of office.19 It also bears pointing out that the fact that to date his trial has not been concluded foregrounds the challenges of fighting corruption (p. 215) in Malawi20—his trial has been characterized by countless adjournments and changes in the prosecuting personnel.21

The above notwithstanding, several notable pieces of legislation dealing with corruption were passed during Muluzi’s rule. For instance, the Corrupt Practices Act was passed in 1995 and entered into force in 1996.22 This law established the ACB and, for the first time in Malawi, also provided a detailed catalogue of offences pertaining specifically to corruption. The implementation of this law, however, faced severe challenges during Muluzi’s time, some of which persist to this day.

In addition, the government in the Muluzi era passed three other pieces of legislation with a bearing on combating corruption: the Public Audit Act,23 Public Finance Management Act,24 and Public Procurement Act.25 Regarding the Public Audit Act, it has to be understood in relation to the Auditor-General, who is mandated to audit and report on all public accounts in Malawi.26 As indicated in section 3 of the Act, this law was established to give effect to the principle of accountability of the government through the National Assembly. The Act gives the Auditor-General extensive powers, including those to access all ‘documents, books and accounts, public funds, public securities, government contracts and books and accounts’ for the purposes of fulfilling the functions and duties of the Office.27

Turning to the Public Procurement Act, it was meant to prescribe the principles and procedures to be applied in, and to regulate, the public procurement of goods, works, and services.28 The Act established the Office of the Director of Public Procurement (ODPP) and set up detailed steps to be followed in procuring goods and services when using public funds, doing so in the hopes that such measures would enhance efficiency in procurement while guaranteeing accountability at the same time. As for the Public Finance Management Act, it seeks to instil fiscal discipline and accountability in the management of government finances.

Despite the surfeit of legislation meant to promote good public finance management and combat corruption, corruption remained widespread during the Muluzi years. Notably, the perception was that the legislation to do with good public finance management was passed in response to donor pressure, with the result that these reforms lacked domestic legitimacy and credibility.29 Their practical impact thus continues to be a muted one.

In 2004, Muluzi was succeeded by Bingu wa Mutharika (2004–2012). Although both he and Bakili Muluzi were members of Malawi’s United Democratic Front (UDF), the two had a falling out soon after Mutharika’s ascension to the presidency, and Mutharika left the UDF to (p. 216) form his own political party, the Democratic Progressive Party (DPP). These developments, clearly, influenced Mutharika’s efforts in fighting corruption, which included arresting Bakili Muluzi. In his first term of office, Mutharika attempted to match his anti-corruption rhetoric with some tangible action,30 but it is open to question how objective or selfless his approach was.31 Suspicions that his early anti-corruption efforts were self-serving were fuelled by the fact that they predominantly targeted individuals with whom he had fallen out of favour when he left the UDF.

Under Mutharika’s rule, Malawi adopted a National Anti-Corruption Strategy (the Strategy)32 which acknowledged that corruption was a serious problem and that it had to be dealt with decisively. It sought, accordingly, to improve good governance by eradicating corruption in all its forms and throughout Malawian society. The Strategy’s key innovation was the creation of a National Integrity System (NIS). The NIS was designed to spearhead anti-corruption reforms and promote ethical culture in all sectors of the economy, especially those traditionally perceived as corrupt. The Strategy is still in place, but it is doubtful whether it still guides anti-corruption work in the country.33

Joyce Banda (2012–2014) succeeded Bingu wa Mutharika after he died in office. In terms of the incidence of corruption, her presidency is likely to be well remembered for the ‘Cashgate Scandal’, which in the words of the High Court represented an ‘unprecedented fiscal scandal’34 in Malawi. Although exact estimates are hard to find, millions of dollars of state funds were embezzled by government officials acting in collusion with other individuals.35

From a legislative perspective, one statute with implications for the fight against corruption was passed during Joyce Banda’s tenure, the Public Officers (Declaration of Assets, Liabilities and Business Interests) Act.36 This was enacted to give flesh to the intent of sections 88A and 213 of the Constitution, which require the President, cabinet ministers, and other designated civil servants to declare their assets, liabilities, and business interests when they assume public office. From a normative perspective, the Act is useful in that it provides a basis on which fair determinations can be made as to whether a public officer has acquired illicit wealth or not during his or her tenure of office. However, even allowing for its short life span, what is patently clear is that compliance with the Act is abysmal.37 It is doubtful, therefore, if it will indeed be a useful platform for combating corruption.

(p. 217) Peter Mutharika unseated Joyce Banda as President in 2014. He is still serving his first five-year term in office. His rule has been marked by significant nepotism and cronyism and the continuation of corrupt practices by high-ranking government officials.38 Peter Mutharika’s rather laboured efforts at tracking down the suspects in the Cashgate Scandal have given the general impression that he is not committed to addressing it. There has been conjecture that ever since the looting of government resources that began during Bingu wa Mutharika’s rule, successive presidents have been reluctant to address the scandal with any seriousness lest they implicate some of their own supporters.39

The Peter Mutharika regime has repealed the Money Laundering, Proceeds of Serious Crime and Terrorist Financing Act and replaced it with the Financial Crimes Act.40 The Financial Crimes Act establishes the Financial Intelligence Authority (FIA), replacing the Financial Intelligence Unit. The Financial Crimes Act provides very clear mechanisms for dealing with ‘tainted property’.41 The FIA is also given powers under the Act that can be employed in combating corruption.42 Under Parts VI and VII of the Financial Crimes Act, a court can order both civil and general forfeiture of tainted property or assets. Nevertheless, it remains to be seen how effective the FIA will prove to be in combating corruption. What is also notable has been the passing of the Access to Information Act.43 Although this law is not yet in operation, its passage by the National Assembly is commendable since it provides an avenue for giving substantive content to the constitutional right to access publicly held information.

In summary, the evidence in this historical overview suggests that Malawi’s presidents have paid mere lip service to the anti-corruption agenda, directing little tangible effort at engaging comprehensively, and earnestly, with the problem.

3.  Institutional arrangements for dealing with corruption

This section highlights the major institutions that are mandated to deal with corruption. For ease of discussion, they can be grouped into two categories. On the one hand are institutions that can be classified as having ‘prosecutorial powers’; on the other are those with ‘supervisory authority’. The difference between them is that, by mandate, the supervisory institutions can detect corruption and take steps to prevent it but do not have the authority to initiate prosecutions. As for the institutions with prosecutorial authority, the key ones are the Director of Public Prosecutions,44 the Director of the ACB,45 and the Attorney-General.46 (p. 218) These institutions are best understood as acting together as a triumvirate, given that their duties and functions are interlinked in law.

The Director of the ACB is the head of the ACB and responsible for its day-to-day operations. However, in terms of section 42 of the Corrupt Practices Act, the ACB cannot commence prosecutions unless it obtains consent from the Director of Public Prosecutions: the latter, by virtue of sections 99 and 100 of the Constitution, is vested with the ultimate authority to commence, take over, or terminate any criminal proceedings in Malawi. It is also important to note that under section 101(2) of the Constitution, the exercise of all powers conferred on the Director of Public Prosecutions is subject to the ‘general or special directions’ of the Attorney-General. In a sense, therefore, the office of the Attorney-General, although not endowed with direct prosecutorial authority, can still influence the direction of prosecutions.

Turning to the supervisory institutions, the following are key: the Auditor-General, the Office of the Director of Public Procurement, the Director General of the FIA, and the Office of the Director of Public Officers’ Declarations. All of these, within their individual mandates, are meant to bring probity and integrity to government operations, so, arguably, if they carried out their mandates optimally, the space for corrupt practices would be eliminated; since this is far from the case, the country’s high levels of corruption are partly due to failures within and among these institutions.

4.  A hallowed commitment: Understanding constitutional imperatives

The main argument of this chapter is that the failure to implement and give full effect to the constitutional requirements of good governance is an indication that successive governments in Malawi have had no real enthusiasm for the fight against corruption. Although many different approaches are taken in the discourse on corruption,47 it is important that all anti-corruption work, here meaning such work in Malawi, be understood first and foremost in the light of the imperatives set out in the Constitution. Arguably, if these imperatives were taken to heart, the anti-corruption fight would cease to be relegated to the peripheries of the governance agenda. Fighting corruption must therefore be undertaken as a core constitutional obligation. The Constitution is the supreme law of Malawi and the obligations contained therein must automatically take priority and precedence in governance.48 It follows, then, that if the anti-corruption agenda can be located expressly within the Constitution’s provisions, the same sincerity, solemnity, and sanctity with which the Constitution is viewed should be extended to the fight against corruption.49

In illustrating this thesis, a good starting-point is the Preamble to the Constitution, which states, among other things, that the adoption of the Constitution was motivated by the desire of the people of Malawi to create a constitutional order based on open, democratic, and accountable government. Indeed, the Preamble declares the desire not only to create such (p. 219) a government but to set the parameters of its permissible authority.50 Section 12(1)(a) provides in this regard that ‘all legal and political authority of the State derives from the people of Malawi and shall be exercised in accordance with this Constitution solely to serve and protect their interests’. It is also provided in section 12(1)(b) that ‘all persons responsible for the exercise of powers of State do so on trust and shall only exercise such power to the extent of their lawful authority and in accordance with their responsibilities to the people of Malawi’. Likewise, section 12(1)(e) provides that ‘all institutions and persons shall observe and uphold this Constitution and the rule of law and no institution or person shall stand above law’.

It is clear from these provisions that the Constitution has established a priori a set of principles that must underlie the entire system of government in Malawi. As such, they set the standards by which a government is to be judged. The devolution of these powers to the various offices and institutions of government in turn confirms that such powers are indeed entrusted powers.51

Moreover, the fact that a system of government has been constituted by the people to serve their interests creates imperatives.52 These imperatives provide constitutional bearings for governance and manifest themselves in five core ideas, the first of which is acceptance of democracy as the governing paradigm in the country. Democracy in this context entails more than subscription to the concept of majoritarian rule; it also entails acceptance of the notion of a responsible government.53 A responsible government is one that remains accountable to the people who put it in office.

The second idea is that government is a trust and that all those who exercise devolved power do so as servants of the public. This provides a solid basis for characterizing the fundamental role and responsibility that all public functionaries bear. Thirdly, there is the integrity principle, which is a consequence of public service and stipulates the standards and practices expected of government and its officials. Importantly, if the trust owed to the public is to be honoured in practice, then there must be integrity in the processes and practices of government, genuinely so and beyond mere rhetorical avowals.54

The fourth idea is the principle of open governance, the aim of which is to facilitate transparency in the conduct of government business. Since a free flow of information is key to democratic governance, it is important that government must accept this as a predominant constitutional value. Lastly, there is the idea of accountability to the public, an idea, it may be argued, that expresses the basal principle of democratic government itself: accountability to the people is required from all those that hold and exercise powers of government.55

The constitutional imperatives foregrounded above demand a high standard of diligence by all those who are entrusted with public resources.56 Furthermore, in the event of (p. 220) non-compliance with the duty of diligence, an automatic obligation arises to make good on whatever the consequences of the breach are.57

5.  A hollow commitment? The reality of anti-corruption work in Malawi

This section of the chapter assesses whether anti-corruption work in Malawi has been a sincere or merely hollow and self-flattering effort. To do so, it examines some of the major challenges the anti-corruption drive has faced.

It will be recalled that under the Corrupt Practices Act, a corrupt practice is defined as ‘the offering, giving, receiving, obtaining or soliciting of any advantage to influence the action of any public officer or any official or any other person in the discharge of the duties of that public officer, official or other person’. This includes influence-peddling and the extortion of any advantage. However, the challenges in curbing corruption in Malawi do not stem from any definitional problems in the law; rather, as will be demonstrated, they appear to stem from a number of systemic factors.

According to Hussein, four factors engender and sustain corruption in Malawi.58 First, from an economic perspective, corruption finds its genesis in high levels of poverty, especially so in the wide income disparities between rich and poor.59 Public officers, especially junior ones, continue to experience a large gap between their basic needs and their income. Such officers, it is argued, engage in corruption to supplement their income; in the case of senior public officers, it is further argued, they engage in corruption to sustain comparatively lavish lifestyles. As a result of this economic factor, one compounded by deteriorating standards of professionalism in the civil service, public officers have been complicit in entrenching corruption.

Secondly, from a political perspective, the reintroduction of multiparty democracy has created fertile ground for patronage politics, which in turn has encouraged corruption. Political leaders preoccupy themselves with appeasing their followers by using government largesse in a bid to acquire and maintain political offices. It is on this basis that scholars contend that the neopatrimonial state is at the heart of corruption in Malawi.60

Thirdly, from a sociological perspective, cultural norms and practices also contribute to the growth of corruption. Since the social structure in Malawi is based on bonds of kinship, communalism, and traditional values, public officials are sometimes induced by these factors to indulge in nepotism and general abuse of office so as to fulfil their traditional duties. Tradition and culture are thus used to justify corrupt practices.

Lastly, inefficiencies in the government bureaucracy contribute to the prevalence of corruption. Dealing with government offices involves cumbersome procedures, a situation (p. 221) that creates an incentive for public officers and those engaging with them to resort to corrupt practices in order for shortcuts to be taken through these procedures.

As pointed out earlier, the front-line institution for dealing with corruption in Malawi is the ACB. Its mandate covers three key thematic areas: investigating and prosecuting corrupt practices; sensitizing the public on the evils of corruption; and conducting corruption-prevention activities. There have been many analyses of the ACB, especially of its challenges, so, on the assumption that these would have been resolved by now if they were adventitious enough to be remedied, it seems very likely that the ACB’s continuing problems arise not by happenstance but from flaws in its design.61 Given that many allegations of corruption involve politicians, a logical deduction is that maintaining a weak ACB serves to protect politicians and their interests. At a broader level, this is symptomatic of the lack of commitment to constitutional values that successive regimes have demonstrated.

The ACB’s main challenges concern, first, a lack of resources to sustain its operations and, secondly, constraints in the legal framework governing the institution.62 In terms of resources, the ACB relies on government subventions,63 but the government has failed dismally in providing the ACB with adequate funding. This has compromised its ability to conduct investigations, prosecutions and even civic education.64 While the country’s general resource constraints would play some role in the underfunding of the ACB, it is also clear that part of the reason why it is underfunded is that its work is not considered a priority. Various government officials, for example, believe the ACB was imposed on the government.65 The refusal to own the ACB, and the general failure to prioritize anti-corruption work, are indicative of failures of good governance and constitutionalism.

In terms of the ACB’s legal framework, it is the case (as mentioned) that although it has the power under section 42 of the Corrupt Practices Act to investigate and even prosecute corrupt practices, the ACB cannot commence any prosecution without the consent of the Director of Public Prosecutions.66 While section 42 was amended in 2004 ostensibly to simplify the process of obtaining that consent, it remains a fact that the process of seeking consent can be, and has been, used to stifle the ACB’s independent prosecutorial authority.67 For this reason, the office of the Director of Public Prosecutions has often drawn criticism for refusing, on political grounds, to give the ACB consent to prosecute.68 Successive (p. 222) regimes have taken advantage of this provision to shield ‘their people’ from prosecution by the ACB, thereby undermining the Constitution’s promises of transparency, integrity, and accountability.

Furthermore, the appointment and removal from office of the director of the ACB remains a vexing issue. Under the Corrupt Practices Act, he or she is appointed by the President, subject to confirmation by the Public Appointments Committee of the National Assembly.69 As for removal from office, the director can be removed from office by the President, with the confirmation of the Public Appointments Committee, for inability to perform the functions of the office, whether as a result of ‘infirmity of body or mind or from any other cause or for misbehaviour’.70

Although the involvement of the Public Appointments Committee may give the impression that the law has secured tenure of office for the director, experience shows that the director’s tenure of office is fragile and that he or she holds office at the pleasure of the President,71 thus exposing the ACB to political manipulation. By preserving the President’s wide latitude to interfere with the tenure of office of the ACB’s director, Malawi has significantly eroded the independence and vibrancy of this institution. It is doubtful, in other words, how motivated incumbents would be to act in accordance with the imperatives of the Constitution when this could very well antagonize the appointing authority and cost them their job.

The ACB also remains vulnerable to interference by the office of the Attorney-General. In one instance, the incumbent Attorney-General wrote to the director of the ACB to require that he seek advice from the Attorney-General in every decision he was to make. In Secucom International Holdings Ltd v ACB,72 the High Court had occasion to comment on this letter:

Besides the abnormalities surrounding this case, we see that by his letter of 2 March 2000, the Attorney General tries to intimidate the Director of the ACB. He tells him that for whatever the Director does under the Corrupt Practices Act, he must seek legal advice from him. I do not subscribe to that idea.

The High Court’s remarks confirm that the ACB’s independence is not to be assumed and that the director of the ACB is not free from political pressure. Contrary to the spirit of the Constitution and the Corrupt Practices Act, it seems to be the case that an ACB director who is genuinely interested in tackling corruption runs the risk of being dismissed before serving his or her full term in office.73 Political interference thus remains an ever-present challenge in combating corrupt practices in Malawi.74

Unsurprisingly, the ACB has concluded only a modest number of cases over the years. While it is true that referring to the conclusion of cases does not convey the full picture of its work, this is a good indicator nevertheless of its progress in fighting corruption—and here it bears mentioning that the ACB’s record does not inspire confidence.75 It may have arrested (p. 223) many people in connection with corrupt practices, but very few of those have had their cases prosecuted to conclusion;76 where it has succeeded in concluding a case, it has generally taken an inordinately long time to do so.77

It seems, then, that successive governments have ‘used’ the ACB to fulfil their own political agendas rather than support constitutional values such as transparency and accountability. For example, under Bakili Muluzi’s leadership, one of the challenges the ACB faced was that the Director of Public Prosecutions rarely gave consent for it to prosecute those suspected of corrupt practices, especially where the suspects were connected to the ruling party. During Bingu wa Mutharika’s time, the ACB, following the lead of the President’s initial anti-corruption rhetoric, arrested a substantial number of people on corruption charges, but, again, many of these matters were never judicially concluded—a fact that casts doubt on the sincerity of Bingu wa Mutharika’s anti-corruption drive.

The role of the judiciary in Malawi’s anti-corruption efforts deserves special mention. Under the Constitution, it is established with the responsibility of interpreting, protecting, and enforcing the Constitution and all other laws in an independent and impartial manner, having regard only to legally relevant facts and the prescriptions of law.78 Section 103 of the Constitution preserves the independence of all courts and persons presiding over them by prescribing that courts shall exercise their functions, powers, and duties independently of the influence or direction of any person or authority. In Malawi’s constitutional design, then, the ultimate umpire of all anti-corruption efforts is the judiciary; the National Anti-Corruption Strategy, too, recognizes its pivotal nature.79

The judiciary bears a solemn responsibility in the country’s anti-corruption work, but contemplating its role in this regard leads one to a sobering paradox. On the one hand, it is clear that addressing corruption requires a ‘robust and independent judiciary of impeccable integrity’; on the other hand, the judiciary is itself vulnerable to corruption—troublingly, its corruption is potentially ‘more devastating than corruption elsewhere’.80 Judicial corruption is a diverse phenomenon, entailing more than just the taking of bribes by judicial officers but extending to all forms of inappropriate influence that can subvert the impartiality of the courts and the proper administration of justice.81

(p. 224) As a senior judge of the Malawi Supreme Court of Appeal conceded, corruption in the judiciary is a reality,82 a concession all the more significant given that the incidence of corruption in the judiciary has been coupled with a culture of silence.83 Indeed, the denial that corruption exists there at all has been a central factor hampering efforts to deal with the problem.84 The judiciary, however, needs to have an honest, soul-searching discussion about the corruption within its ranks in order to be able to devise a strategy for addressing it.85 If not, the failure to confront judicial corruption will irreparably undermine the integrity of the institution, hamstringing its contribution to the fight against corruption and further vitiating the constitutional promises of accountability, transparency, and integrity. The judiciary remains, in other words an institution that is key for breathing life into efforts to curb corruption and so make the Constitution’s promises a reality.

It must also be noted that Malawi, like many other common law countries, has an adversarial judicial system. This means it is the duty of the prosecutor or complainant to move the court and prove his or her allegations: without a complaint being laid and prosecuted, the courts will not move. Delays in concluding corruption cases are thus not solely attributable to the courts but are sometimes due to the machinations of the litigants.86 Complaints about delayed corruption trials must be understood against this background.87 The trial of former President Bakili Muluzi is an example of a case where delays can be attributed both to the court and the parties—it is not insignificant that, since the commencement of the matter, the defence has inundated the court with preliminary applications that have slowed down the hearing of the substantive matter.

6.  Suggestions on the way forward

Corruption is a complex phenomenon,88 and its complexity requires that the battle against it has to be waged on many fronts with a holistic approach.89 The means of fighting corruption must be equally complex, equally adept at responding to challenges, and involve short- as well as long-term interventions.

In contrast, a common mistake is to imagine that a strategy which intervenes only in a selected area can solve the problem comprehensively.90 A unidimensional approach risks overlooking other factors that contribute to the incidence of corruption and hence omitting (p. 225) critical interventions.91 For example, if low salaries for public servants are regarded as a factor in engendering corruption, it should not be assumed simplistically that increasing salaries will eliminate corruption. Similarly, increasing the penalties for corrupt practices or setting up an agency to deal with corrupt practices cannot by itself be the solution. Any realistic strategy must begin by acknowledging there is always both supply and demand for corruption. Understanding the local dynamics of supply and demand can thus assist in the crafting of meaningful ways to address corruption.

The suggestions offered here are by no means exhaustive and are meant simply to illustrate some possible solutions that could be applied in Malawi. For the sake of convenience, they are divided into two categories: legal and institutional measures, and political interventions.

6.1  Legal and institutional measures against corruption

6.1.1  Capacitating law enforcement agencies

It is of utmost importance to conduct an honest and critical review of the institutional structures meant to deal with corruption. The fight against corruption is undermined by having a graft-fighting body that lacks independence. It is hence necessary to acknowledge soberly that such lack of independence will not magically disappear.92 An effective strategy for dealing with corruption requires the presence not only of enabling laws but institutions that are fully capacitated to address corruption.93 Capacity can, at one level, be as a result of the powers vested, by law, in the corruption-fighting agency, but, at another level, capacity would be built by allocating sufficient resources to enable the agency to fulfil its legal mandate.

It is clear that a comprehensive review of the Corrupt Practices Act is in order. The review must be aimed at, among other things, rooting out provisions that undermine the independence of the ACB.94 Additionally, adequate resources must be allocated to it to enable it to carry out its mandate: the failure to allocate such adequate resources points to the hollowness of Malawi’s commitment to eradicating corruption, as would a failure to undertake reforms that would truly capacitate the ACB. As matters stand, the ACB has often blamed its shortcomings not only on a weak legal framework but the executive’s failure to provide adequate support for its operations.

6.1.2  Access to information

The ACB, together with other integrity institutions and the public at large, require robust access to information to turn the tide against corruption. Section 36 of the Constitution provides for the right to access information held by the state or any of its organs at all levels of government. As noted earlier, the enactment of the Access to Information Act is hence a step in the right direction. However, although the Act has received presidential assent, it (p. 226) remains non-operational as the government has yet to resolve logistical issues surrounding the supervisory role that the Malawi Human Rights Commission is to play in relationship to this law.95

The failure to operationalize the law on access to information is problematic, and lends credence to suggestions that the government is not committed to honouring the principles of openness and transparency.96 The right of access to information has a strong instrumental value in facilitating the fulfilment of the Constitution’s anti-corruption promises: access to information promotes transparency, which in turn narrows the space for corrupt activities. In particular, vibrant access to information stands to enable journalists and others to investigate and report freely and credibly on corruption, with the resultant exposure of scandals also serving as a deterrent to would-be offenders.97 This is recognized, for instance, in the National Anti-Corruption Strategy, which identifies the media as one of its pillars and acknowledges their key role in mobilizing public involvement in the fight against corruption.98

Nevertheless, the tortuous manner in which the Access to Information Act was enacted points to the government’s lack of enthusiastic support for this law.99 Additionally, other laws that limit free access to information continue to exist, thus hampering anti-corruption efforts.100 So, if developments in relation to the Access to Information Act are anything to go by, Malawi has again demonstrated doubtful commitment to the constitutional values of openness and transparency. Arguably, it would seem that the Act is another of those laws the government has passed simply in response to donor pressure.101 As has been the case with such laws, commitment to the values contained in the Act is likely to remain low.

6.1.3  The role of whistle-blowers

The law in Malawi provides for whistle-blowers, who play a key role in identifying corrupt practices and thereby paving the way for the eradication of corruption. It is thus essential to have mechanisms in place for enabling whistle-blowers to make disclosures without fear of reprisal.102 The protection of whistle-blowers serves not only to detect but also deter wrongdoing, and in Malawi such protection is provided, for example, in section 51A of the Corrupt Practices Act and sections 20 and 21 of the Public Officers (Declaration of Assets, Liabilities and Business Interests) Act.

Allowing that whistle-blowers are valuable in anti-corruption efforts, it is important all the same to bear in mind their social context. Whistle-blowing relies on an individual—rarely a group of individuals—to report acts of perceived corruption to the authorities, the presupposition being that he or she is disconnected from the alleged wrongdoing and can (p. 227) report on it in a disinterested, altruistic manner. However, in contexts where corruption is socially constructed to include a communal dimension, whistle-blowing has inherent limitations.103 The whistle-blower may well be connected to the alleged perpetrator of a corrupt practice and hence a potential beneficiary of the impending illicit wealth. Whistle-blowing, in other words, may have limited viability in a country like Malawi where communal interconnections remain strong.

It is important, therefore, that the review of the Corrupt Practices Act proposed earlier should include measures to strengthen the protection of whistle-blowers and create better incentives for them to report malfeasance. However, these measures must be taken with the full awareness that whistle-blowing might never gain traction in a country such as Malawi, where patronage politics, and the persistence of the neopatrimonial state, limit the role it could play. This suggests that if the Constitution’s promises are to be fulfilled, the nuanced dynamics of corruption must be acknowledged when crafting strategies to address the problem.

6.2  Political measures

Aside from engaging with legal and institutional mechanisms, anti-corruption interventions should also address the key area of the political realm. Some of the interventions needed in this regard are highlighted in the discussion below.

6.2.1  Corruption and governance

Corruption is inherently a governance issue.104 Corruption affects all forms and systems of governance, be they democratic, aristocratic, monarchic, or despotic.105 Nevertheless, poor governance exacerbates corruption by creating opportunities and incentives for it. What is meant by poor governance is that a country’s ‘apparatus … is not sufficiently guided by the principles of accountability, transparency, the rule of law, and genuine citizen participation in the affairs of a country’s government’.106

It is hence important to improve governance if corruption is to be eradicated. Fighting corruption should never be perceived as independent from state reform.107 The way the state operates—its governance—is a key factor in fighting corruption. For example, the absence of politically motivated recruitment in the public service and the presence of clear rules on promotions could work to improve the bureaucracy and thereby eliminate space for corruption.108 Sadly, on this score Malawi’s public service scores very poorly, which, arguably, engenders corruption. Whereas in the past its civil service was renowned for its professionalism and dedication to duty, today the civil service is epitomized by laxity, indiscipline, and a preoccupation with plundering state resources.109

(p. 228) There is, therefore, an acute need to reform the manner in which the government conducts its business in Malawi. The civil service needs to restore its professionalism. Recruitment and promotion must be tied to merit. In this connection, the recently proposed public-sector reforms are to be commended.110 However, as with many other initiatives in Malawi, it is crucial that political will be galvanized to ensure their implementation.

The government retains a strong role in combating corruption, and many of the interventions require its participation. As a starting point, it is important for the government to acknowledge openly and publicly that a clean, honest government is not only a necessary but a constitutional prerequisite. Such a strong and unequivocal message from the government would help in setting the tone for other anti-corruption initiatives. The governance implications of the fight against corruption reveal that adherence to the Constitution remains a precondition for progress to be made. By implication, therefore, persistent failure in making progress against corruption is also indicative of a failure of constitutionalism.

6.2.2  Leaders as good examples

It is important that leaders in government are prepared to be good role models, especially in terms of integrity and accountability.111 Those in leadership should be seen to be free of corruption and not condoning it.112 If a country is truly committed to fighting corruption, then its leadership must consciously choose integrity and accountability over illicit wealth. In the context of Malawi, senior government officials should lead the way in making honest declarations of their wealth under the asset declaration law. Where such senior government officials run private business enterprises, their businesses must take the lead in eschewing corrupt practices.113

The failure of Malawi’s political leadership to lead by example manifests a lack of commitment to fulfilling the Constitution’s anti-corruption promises. To focus on the presidency, for example, all former presidents of Malawi have been mired in accusations of corruption upon leaving office. While no criminal proceedings have been concluded against any of them, the public perception generally has been that ascendancy to the presidency is an avenue for accumulating wealth.114 A similar situation applies at the slightly lower level of cabinet appointments. These too are seen as a means of accumulating wealth. The result is that there are constant allegations of corruption against cabinet ministers, allegations which in many cases have never been fully investigated or prosecuted.115

Against this background, it must be recalled that a country’s stature is defined by the character of its leadership. Leadership that is committed to constitutionalism stands a better chance of creating a corruption-free society. In Malawi, however, multiparty democracy has (p. 229) created incentives for engaging in the politics of patronage, especially as a means for acquiring and maintaining power. While the quality of leadership will remain critical in realizing the Constitution’s promises in relation to anti-corruption work, the calibre of leaders Malawi has had so far does not inspire confidence in the fight against corruption in particular and the entrenchment of constitutionalism in general.

6.2.3  Political will

The literature on Malawi as well as many other African countries consistently suggests that there is no substitute for political will in the fight against corruption. Creating an anti-corruption agency, such as the ACB, and passing laws criminalizing corruption are useful but not ends in themselves. The government must be fully on board in the anti-corruption drive. There must be political will to support the formulation of strategies and the adoption and implementation of laws.116 This entails having a national leadership that is genuinely and perpetually committed to the improvement of the operational efficiency and effectiveness of complementary government agencies created for the purpose of abating corrupt practices, through greater autonomy, non-politicization, and adequate financial and logistical support for the agencies.117

History suggests that when conducting investigations and prosecutions for corruption, Malawi, like many other countries in the Southern African Development Community (SADC), routinely focuses on the ‘small fish’ while avoiding those with influence.118 In order to make progress, the government must, among other things, adequately resource the ACB and other agencies involved in fighting corruption; moreover, investigations and prosecutions should not be conducted in a discriminatory manner.

So far, however, the political will in support of anti-corruption efforts in Malawi has been feeble. Successive presidents have mouthed the rhetoric of anti-corruption without taking the required steps to deal with corrupt practices. The failure to galvanize political will stems from the exigencies of maintaining political support in a social context dominated by patrimonialism. Politics remains at the centre of corruption in Malawi.119 Many illicit schemes are sanctioned by the upper echelons of political power, with the lack of prosecutions engendering a culture of impunity. Corrupt practices committed by the cronies of those in power are overlooked if those cronies are important for staying in political office.

6.2.4  Civil society, culture, and public awareness

While it is important to deal with all incidents of corruption, it is equally important to devise measures that seek to prevent corruption before it occurs.120 The key here is to develop programmes for raising awareness about the evils of corruption, in so doing promoting ethical values and mobilizing public interest in dealing with corruption.121 Raising awareness about corruption requires that, as mentioned, the graft-fighting body should be adequately resourced so as to discharge this function.

(p. 230) Importantly, however, this is not a function that must be left only to the corruption-fighting agency—the government must also be willing to give its open support to civil society initiatives dealing with corruption.122 Civil society should be given the space to implement programmes empowering those who bear the brunt of corruption, as it may be key to energizing the anti-corruption drive.123 In the context of Malawi, this means allocating adequate resources to the ACB to engage in comprehensive public awareness campaigns but also supporting relevant non-governmental organizations in complementing the work of the ACB.

Furthermore, it is critical to have a full understanding of the role of culture and social perceptions in corrupt practices. The causes of corruption, as the World Bank has recognized, are always contextually rooted in a country’s policies, bureaucratic traditions, political development, and social history.124 Patronage politics in Malawi are a clear example of the institutionalization of corruption in the country.

It must be borne in mind that in countries where corruption is institutionalized and systemic, anti-corruption efforts that focus on the individual are unlikely to reap many dividends.125 Systemic corruption entails that corrupt practices have become embedded in the existing power relations. Addressing corruption in such a context requires applying legal and institutional reforms together with fundamental societal changes aimed at altering societal power relations, creating civic competence in dealing with corruption, and developing new norms.126 Raising public awareness would be the first step towards de-institutionalizing corruption. The public has a role to play in ensuring that all the Constitution’s promises are fulfilled; in turn, marginalizing the public in the fight against corruption undermines the entire effort.

7.  Conclusion

Corruption remains a lucrative enterprise, and for this reason it is not easy to eradicate.127 Given its increasing prevalence in Malawi, it would not be surprising if there are people who have begun to accept certain forms of corruption as normal, but this notwithstanding, it needs to be reiterated that corruption is a lethal cancer and that finding workable remedies for it is a priority, if only to reverse its devastating effects. If the environment remains conducive to it, corruption will continue to multiply and entrench itself.128

For Malawi, pragmatism will be key if any meaningful progress is to be made in the fight against corruption. As an initial step, there has to be recognition that corruption is a serious problem in the country and that urgent attention is required to deal with it; conversely, it is pointless to pretend otherwise.129 It is also crucial to understand the uniquely Malawian (p. 231) dynamics of corruption. While corruption is found across the globe, there are certain aspects of it which tend to be peculiar to particular localities, and hence in the case of Malawi it is important to understand these local dynamics if Malawian solutions to the problem are to be found. This is not to discount the value of learning from other countries, but simply to emphasize that the solutions ultimately have to be tailored to fit the Malawian context.

In the end, it must be conceded that while the Constitution remains an important part of the legal system in Malawi, it cannot by itself change a people or bring about socio-economic transformation, however lofty its ideals; similarly, in the context of the present discussion, the Constitution by itself cannot eradicate corruption in Malawi. However, the values it espouses can act as a catalyst for transformative change in society. The Constitution can form a rallying point for all efforts against corruption. Constitutions, however, are only able to catalyse change if the governors commit themselves to constitutionalism. In Malawi, the Constitution creates clear imperatives that must inform anti-corruption work. What is needed is decisive action to deal with corruption and thereby fulfil the Constitution’s promises. In a sense, therefore, Malawi’s wobbly efforts at dealing with corruption mirror its equally faltering efforts at entrenching constitutionalism.

Bibliography

Footnotes:

1  Authors who have commented on the transition include Jande Banda, ‘The Constitutional Change Debate of 1993–1995’ in Kings Phiri and Kenneth Ross (eds), Democratisation in Malawi: A Stocktaking (CLAIM 1998); Dianna Cammack, ‘Democratic Transition in Malawi: From Single Party-rule to a Multi-Party State’ in John Daniel and others (eds), Voting for Democracy: Watershed Elections in Contemporary Anglophone Africa (Ashgate 1998); Fidelis Kanyongolo, ‘The Constitution and the Democratisation Process in Malawi’ in Owen Sichone (ed), The State and Constitutionalism in Africa (SAPES 1998).

2  Siri Gloppen and Fidelis Kanyongolo, ‘Courts and the Poor in Malawi: Economic Marginalization, Vulnerability and the Law’ (2007) 5(2) International Journal of Constitutional Law 258.

3  Garton Kamchedzera and Chikosa Banda, ‘The Right to Development, the Quality of Rural Life, and the Performance of Legislative Duties during Malawi’s First Five Years of Multiparty Politics’ (2002) Faculty of Law, University of Malawi [Research Dissemination Seminar Number Law/2001–2002/001] <https://sarpn.org/documents/d0001966/Malawi_Faculty-law.pdf> accessed 11 January 2018.

4  ibid.

5  Chikosa Silungwe, ‘The Court’s Power of Review, Composition of the National Assembly and the Presidential Reference on Section 65’ (2007) 1(2) Malawi Law Journal 235, 236.

6  Sam Agere, Promoting Good Governance: Principles, Practices and Perspectives (Commonwealth Secretariat 2000) 3. See also Hans-Otto Sano, ‘Good Governance, Accountability and Human Rights’ in Hans-Otto Sano and others (eds), Human Rights and Good Governance: Building Bridges (Martinus Nijhoff 2002).

7  Transparency International, ‘Corruption Perceptions Index 2016’ (Transparency International, 25 January 2017) <http://www.transparency.org/news/feature/corruption_perceptions_index_2016> accessed 4 May 2017.

8  Mo Ibrahim Foundation, ‘2016 Ibrahim Index of African Governance: Malawi Insights’ (Mo Ibrahim Foundation 2016) <https://bit.ly/2FcqSKl> accessed 4 May 2017.

9  Jeremy Sandbrook, ‘The Corruption Chameleon: A Case Study of Corruption within a Malawian NGO’ (MPhil thesis, Massey University 2012) 6.

10  ibid 77.

11  David Hall-Matthews, ‘Tickling Donors and Tackling Opponents: The Anti-Corruption Campaign in Malawi’ in Sarah Bracking (ed), Corruption and Development: The Anti-Corruption Campaigns (Palgrave Macmillan 2007) 78.

12  Laws of Malawi, ch 7:01.

13  Ivy Kamanga, ‘Combating Corruption: Challenges in the Malawi Legal System’ (Tenth International Training Course on the Criminal Justice Response to Corruption, 2010) <http://www.unafei.or.jp/publications/pdf/RS_No76/No76_17PA_Kamanga.pdf> accessed 5 May 2017.

14  ibid.

15  For the difference between extractive and distributive corruption, see Inge Amundsen, Political Corruption: An Introduction to the Issues (Chr. Michelsen Institute 1999) <http://www.cmi.no/publications/file/1040-political-corruption.pdf> accessed 9 May 2017. Generally speaking redistributive corruption involves social and economic groups, interests or individuals who draw benefit from the corrupt practices that they engage in with the state as a counterpart. The resources extracted, privatized, and consumed are depleted and distributed to various groups and interests according to the prevailing power configurations. In extractive corruption the ruling elite is the strongest force in society, the elite then uses the state apparatus as its instrument to extract resources from society and it does this for the benefit of the rulers. Importantly, both forms of corruption may take place simultaneously in different sectors and at different levels.

16  Diana Cammack and Tim Kelsall, ‘Developmental Patrimonialism? The Case of Malawi’ (2010) Africa Power and Politics Programme Working Paper No. 12 <https://bit.ly/2VBoD8r> accessed 9 May 2017.

17  David Booth and others, ‘Drivers of Change and Development in Malawi’ (2006) Overseas Development Institute Working Paper 261 <http://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/1957.pdf> accessed 9 May 2017.

18  ibid.

19  Frank Phiri, ‘Muluzi Held on Corruption Charges’ Independent Online (Cape Town, 28 July 2006) <http://www.iol.co.za/news/africa/muluzi-held-on-corruption-charges-in-malawi-287131> accessed 8 May 2017.

20  Golden Matonga, ‘On Trial, the Politics that Harangued Muluzi Changed’ (Golden Matonga Today, 12 February 2016) <https://goldenmatonga.wordpress.com/2016/02/12/on-trial-the-politics-that-harangued-muluzi-changed/> accessed 11 January 2018.

21  Gabriel Kamlomo, ‘ACB Independence under Microscope over Matemba’ (Zodiak Online, 11 May 2016) <https://zodiakmalawi.com/malawi-national-news/acb-independence-under-microscope-over-matemba> accessed 11 January 2018.

22  Act 18 of 1995.

23  Act 6 of 2003.

24  Act 7 of 2003.

25  Act 8 of 2003.

26  The Constitution of the Republic of Malawi 1994 (Constitution 1994), s 184(1).

27  Public Audit Act, s 7.

28  It has been replaced by the Public Procurement and Disposal of Public Assets Act 27 of 2017. However, the Minister has yet to appoint a date for it to enter into force.

29  Lise Rakner and others, ‘The Budget as Theatre: The Formal and Informal Institutional Makings of Budget Process in Malawi’ (Overseas Development Institute 2004) <http://www.odi.org/sites/odi.org.uk/files/odi-assets/events-documents/3554.pdf> accessed 11 January 2018.

30  For example, Yusuf Mwawa, a former minister of education, was tried and convicted for using public money to pay for his wedding. See ‘Former Minister Guilty of Corruption’ Independent Online (Cape Town, 3 February 2006) <http://www.iol.co.za/news/africa/former-malawi-minister-guilty-of-corruption-265376> accessed 9 May 2017. Similarly, Sam Mpasu, another former minister, was tried and convicted for his complicity in the dubious procurement of exercise books meant for a free primary-school initiative. See ‘Former Malawi Education Minister Jailed for Six Years over Graft’ (PanaPress, 8 April 2008) <https://bit.ly/2Tv5zqg> accessed 9 May 2017.

31  Hall-Matthews (n 11) 77–102.

32  Republic of Malawi, National Anti-Corruption Strategy (Republic of Malawi 2008) <https://bit.ly/2sc4kk7> accessed 5 May 2017.

33  Interview with senior ACB official by author (5 May 2017).

34  R v Oswald Lutepo (Sentencing) Criminal Case No. 02 of 2014, Per Kapindu J.

35  ‘Malawi’s “Cashgate” Scandal: The $32m Heist’ The Economist (London, 27 February 2014) <http://www.economist.com/blogs/baobab/2014/02/malawi-s-cashgate-scandal> accessed 4 May 2017. The BBC called Cashgate the ‘biggest financial scandal in Malawi’s history’, estimating USD250 million may have been lost. See ‘ “Cashgate”—Malawi’s Murky Tale of Shooting and Corruption’ (BBC, 27 January 2014) <http://www.bbc.com/news/world-africa-25912652> accessed 4 May 2017.

36  Act 22 of 2013.

37  Suzgo Khunga, ‘Low Compliance in Assets’ (The Nation, undated) <http://mwnation.com/low-compliance-in-assets/> accessed 12 January 2018; Moses Chitsulo, ‘Malawi Public Officers Still Skeptical of Assets Law’ (The Times, 30 April 2017) <http://www.times.mw/malawi-public-officers-still-skeptical-of-assets-law/> accessed 12 January 2018.

38  For example, recently what Malawians termed ‘Maizegate’ captivated the nation and has yet to be resolved. It involved ‘fraudulent’ procurement of maize from Zambia by the Ministry of Agriculture and the government parastatal, ADMARC. See ‘Maizegate, Malawi Maize Scandal, Kaloswe Contract was Terminated (Zambian Observer, 9 January 2017) <http://www.zambianobserver.com/maizegate-malawi-maize-scandal-kaloswe-contract-was-terminated/> accessed 4 May 2017. Questions have also been raised about how the government awarded a USD-500-million contract to pump water from Salima to Lilongwe. See ‘Salima-Lilongwe Water Project in Court’ (The Times, 23 April 2017) <http://www.times.mw/salima-lilongwe-water-project-in-court/> accessed 4 May 2017.

39  See e.g. ‘Peter Mutharika Elusive on Corruption in Bingu Era’ (The Times, 8 December 2015) <http://www.times.mw/peter-mutharika-elusive-on-corruption-in-bingu-era/> accessed 4 May 2017.

40  Act 14 of 2017.

41  ‘Tainted property’ is defined under the Act as proceeds, including income and other benefits, derived from the proceeds or instrumentalities of money-laundering or predicate offences. Corrupt practices, as defined under the Corrupt Practices Act, would fall within the definition of predicate offences for the purposes of the Financial Crimes Act.

42  Financial Crimes Act, s 5.

43  Act 13 of 2017.

44  Appointed under the Constitution 1994, s 99.

45  Appointed under the Corrupt Practices Act 1995, s 5.

46  Appointed under the Constitution 1994, s 98.

47  Setlhomamaru Dintwe, ‘The African National Congress-Led Government’s Inability to Counter Public Corruption: A Forensic Criminological Perspective’ (2016) Africa’s Public Service Delivery & Performance Review <http://apsdpr.org/index.php/apsdpr/article/download/27/26> accessed 7 May 2017.

48  Section 5 of the Constitution confirms the principle of constitutional supremacy.

49  Locating anti-corruption work within the Constitution, it must be noted, is not an end in itself. Nevertheless, this provides a strong platform on which to base it.

50  Mwiza Nkhata, ‘Rethinking Governance and Constitutionalism in Africa: The Relevance and Viability of Social Trust-Based Governance and Constitutionalism in Malawi’ (Doctor of Laws thesis, University of Pretoria 2010) 8.

51  Paul Finn, ‘A Sovereign People, a Public Trust’ in Paul Finn (ed), Essays on Law and Government (The Law Book Company 1995) vol 1, 20.

52  ibid 22.

53  Anthony Mason, ‘Opening Address’ (New South Wales Supreme Court Judges Conference, 30 April 1993), quoted by Finn (n 51) 7.

54  Finn (n 51) 26.

55  ibid 29.

56  This was recognized expressly by the court in The State v Sam Mpasu Criminal Case No. 17 of 2005, Lilongwe Chief Resident Magistrate’s Court, Judgment on Sentence 8 April 2008. In R v Oswald Lutepo (n 34), Kapindu J, stated that ‘the governance trust reposed in the political leadership of the State includes being custodians and good stewards of national resources … this sacred governance principle must never be twisted to entail that sustained governance trust can be maintained through clandestine, fraudulently unaccountable and opaque Government’.

57  This may require either the imposition of criminal sanctions or that the offending party restitute to the public purse the value of the loss suffered as a result of his or her breach of duty.

58  Mustafa Hussein, ‘Combating Corruption in Malawi: An Assessment of the Enforcing Mechanisms’ (2005) 14(4) African Security Review 91, 94–95.

59  The relationship between poverty and corruption is complex and bi-directional, with corruption being both a cause and effect of poverty. See Vahideh Negin and others, ‘The Causal Relationship between Corruption and Poverty: A Panel Data Analysis’ (Department of Economics, Faculty of Economics and Management, University Putra Malaysia 2010) <https://mpra.ub.uni-muenchen.de/24871/1/> accessed 17 January 2018.

60  Dianna Cammack, ‘Malawi’s Political Settlement in Crisis, 2011’ (2011) Africa Power and Politics Programme Background Paper No. 4 <https://bit.ly/2Fqyx7Q> accessed 15 January 2018.

61  See e.g. Charles Chunga, ‘An Assessment of the Effectiveness of the Anti-Corruption Bureau in Combating Corruption in Malawi’ (Master of Public Administration thesis, University of Botswana 2005); Centre for Social Research, ‘Governance and Corruption Survey 2010’ (on file with author).

62  Hussein (n 58) 96.

63  Apart from government funding, the ACB has benefited from donor funding; indeed, if it relied solely on government funding, many of its operations would have stalled.

64  See e.g. Victor Milanzi, ‘Sustain ACB Funding or Forget about Cashgate’ (Malawi24, 28 February 2016) <https://malawi24.com/2016/02/28/analyst-calls-for-secure-funding-for-acb/> accessed 12 January 2018.

65  Thom Chiumia, ‘Goodall Says IMF, World Bank Imposed Anti-Corruption Bureau [on] Malawi’ (Nyasa Times, 17 August 2016) <https://bit.ly/2H8ieyb> accessed 12 January 2018.

66  An example of the challenges the ACB faces as a result of this requirement is The Republic v Cassim Chilumpha Criminal Case No. 63 of 2001 (CRM). The case arose in the context of the loss by the government of MWK187 million through dubious school construction contracts. A number of suspects were arrested in connection with this scam after the Public Accounts Committee of Parliament revealed the loss. Chilumpha, who was then a cabinet minister and later became the Vice-President, was charged with engaging in corrupt practices as a public officer as defined in section 24(1) of the Corrupt Practices Act. The ACB applied for consent to prosecute, but the Director of Public Prosecutions refused. The accused parties then applied to have the charges dropped and for them to be discharged. The court eventually discharged the accused.

67  Hussein (n 58) 96–97 chronicles examples of prosecutions that failed due to the inability to obtain consent from the Director of Public Prosecutions. In Hussein’s view, the requirement of seeking consent is a bottleneck that limits the ACB’s operations and results in selective prosecution.

68  Mabvuto Hara, ‘The Independence of Prosecuting Authorities: The Malawian Experience’ in CM Fombad and Christina Murray (eds), Fostering Constitutionalism in Africa (PULP 2010) 82.

69  Corrupt Practices Act 1995, s 5.

70  ibid s 6.

71  For example, in July 2006 the then director of the ACB, Gustave Kaliwo, arrested former President Bakili Muluzi on corruption charges. The then President of Malawi, Bingu wa Mutharika, immediately suspended Kaliwo without giving any reasons. Four days after Muluzi’s arrest, the Director of Public Prosecutions withdrew all the charges the ACB had filed against him. See Hara (n 68) 83.

72  Civil Cause No. 225 of 2000 (unreported).

73  Peter Phiri, ‘Understanding Corruption in Malawi: Sources of Corruption and Constraints on Anti-Corruption Programmes 1994–2004’ (PhD thesis, University of Witwatersrand 2013) 229–32.

74  Open Society Initiative for Southern Africa, Malawi: Justice Sector and Rule of Law (OSISA 2006) 92.

75  In The Anti-Corruption Bureau v Amos Chinkhadze and Joe Katema MSCA Criminal Appeal No. 1 of 2003 (Being Lilongwe High Court Miscellaneous Criminal Application No. 19 of 2002), the Court, Tambala JA, made the following observation about how the ACB conducts its cases: ‘It would seem that the Anti-Corruption Bureau has developed the reputation of moving slowly during and after conducting their investigations. I would observe that when the Bureau has invoked its restraining or seizure and freezing powers under sections 23-(1) and 32-(5) respectively they should move swiftly in order to bring about the speedy conclusion of the case which the Bureau has against the suspected person. Delay in commencing criminal proceedings or pursuing such proceedings after they are commenced, amounts to conduct on the part of the Bureau which is oppressive, unfair and unjust.’ The ACB was also condemned for the slow pace of its investigations and prosecutions in Collins Monte Ng’ambi v The Director of Anti-Corruption Bureau MSCA Civil Appeal No. 9 of 2009 (Being High Court Miscellaneous Application No. 224 of 2009).

76  For discussion of the ACB’s efforts and the challenges it faces, see Phiri (n 73) and Hall-Matthews (n 11).

77  Perhaps the best illustration of how politics influences the ACB’s prosecutions is the case against former President Bakili Muluzi. He was arrested in 2006 but his trial began only in 2011. After many twists and turns, including the withdrawal of the lead prosecutor, the trial has made no significant progress in the more than ten years since his arrest. See Lameck Masina, ‘Corruption Case against Malawi’s Ex-President Hits Another Snag’ (VOA, 16 June 2016) <http://www.voanews.com/a/corruption-case-against-former-malawi-presidents-hits-another-snag/3379639.html> accessed 15 August 2017.

78  Constitution 1994, s 9.

79  Republic of Malawi (n 32).

80  Rizine Mzikamanda, ‘Some Thoughts on Effective Strategies for Combating Corruption in the Malawi Judiciary’ (Southern African Litigation Centre 2017) <http://www.southernafricalitigationcentre.org/wp-content/uploads/2017/08/GOAL-16-Book-Mzikamanda.pdf> accessed 8 May 2017.

81  Siri Gloppen, ‘Courts, Corruption and Judicial Independence’ in Tina Søreide and Aled Williams (eds), Corruption, Grabbing and Development: Real World Challenges (Edward Elgar Publishing 2014) <http://www.cmi.no/publications/file/5091-courts-corruption-and-judicial-independence.pdf> accessed 9 May 2017.

82  ibid. See also IFES, ‘State of the Judiciary Report: Malawi 2003’ (2004) IFES Rule of Law State of the Judiciary Report Series <http://www.ifes.org/sites/default/files/soj_malawi_final.pdf> accessed 8 May 2017.

83  For example, in 2012 the ACB arrested Justice Manyungwa of the High Court on allegations of abuse of office, but no indication of how the matter was resolved was ever made public. He died in 2013 while still serving on the bench. See ‘Judge Manyungwa Arrested’ (The Nation, 6 April 2012) <http://mwnation.com/judge-manyungwa-arrested/> accessed 12 January 2018.

84  Mzikamanda (n 80).

85  For detail on anti-corruption interventions the judiciary should implement, see Mzikamanda (n 80).

86  In response to complaints about delayed cases, the ACB has always pointed out that it works with other institutions to process cases and hence that blame cannot be laid at its door alone. See ‘Malawi Minister, Head of Anti-Graft Body Disagree on Corruption’ (PanaPress, 29 September 2002) <http://www.panapress.com/Malawi-Minister,-head-of-Anti-craft-body-disagree-on-corruption--13-465861-18-lang1-index.html> accessed 15 January 2018.

87  Archangel Nzangaya, ‘Bakili’s Corruption Case: Progress Angers PP’ (Malawi24, 6 June 2016) <https://malawi24.com/2016/06/06/bakili-muluzi-corruption-case-pp-angered/> accessed 12 January 2018.

88  Vito Tanzi, ‘Corruption around the World: Causes, Consequences, Scope, Cures (1998) 45(4) Staff Papers: International Monetary Fund 559, 587.

89  Hussein (n 58) 99.

90  Tanzi (n 88) 587.

91  Johan Prinsloo and Beaty Naude, ‘Corruption in Southern Africa’ (2001) 14(1) Acta Criminologica 40, 42.

92  Common problems of anti-corruption bodies in the SADC were identified as lack of independence, political interference, and lack of resources and technical expertise. See Chantelle de Souza, ‘Combating Corruption in the SADC’ (De Rebus, 1 April 2015) <http://www.derebus.org.za/combatting-corruption-in-the-sadc/> accessed 5 May 2017. Limitations on autonomy have also been reported in the case of Botswana’s graft-fighting body. See David Sebudubudu, ‘Corruption and its Control in Botswana’ (2003) 35 Botswana Notes and Records 134, 135.

93  Jeanne Gashumba, ‘Anti-Corruption Agencies in Africa: A Comparative Analysis of Rwanda, Sierra Leone and Malawi’ (Master of Laws thesis, University of the Western Cape 2010) 91.

94  See eg the provisions relating to the appointment and removal from office of the Director of the ACB as well as provisions on seeking consent from the DPP before commencing a prosecution.

95  Under section 7 of the Act, the Malawi Human Rights Commission is given the mandate to oversee the implementation of the Act.

96  See Owen Khamula, ‘Government Delay to Implement Access to Information Law Annoys MISA’ (Nyasa Times, 12 January 2019) <https://www.nyasatimes.com/govt-delay-to-implement-access-to-information-law-annoys-misa-malawi/> accessed 15 January 2018.

97  Joseph Forson and others, ‘Causes of Corruption: Evidence from Sub-Saharan Africa’ (2016) 19 SAJEMS NS 562, 566.

98  Republic of Malawi (n 32) 12.

99  See Mandala Mambulasa, ‘Access to Information in Malawi: The Journey to Date and a Quick Survey of the ATI Bill of 2016’ (Southern Africa Litigation Center 2017) <http://www.southernafricalitigationcentre.org/wp-content/uploads/2017/08/GOAL-16-Book-Mambulasa.pdf> accessed 15 August 2017.

100  One such example would be the Official Secrets Act (Cap. 14:01) Laws of Malawi.

101  Thom Khanje, ‘The Donor-Fearing Malawi Leadership’ (The Times, 11 August 2015) <http://www.times.mw/the-donor-fearing-malawi-leadership/> accessed 15 January 2018; Owen Khamula, ‘Mutharika Trashes Ultimatums, Donor Pressure on Information Bill’ (Nyasa Times, 15 December 2015) <https://bit.ly/2RR5e4l> accessed 15 January 2018.

102  OECD, Committing to Effective Whistleblower Protection (OECD 2016) 18.

103  Sandbrook (n 9) 149.

104  For a discussion of how poor governance facilitates corruption, particularly in Malawi, see Daniel Daka, ‘Challenges to the Successful Implementation of Anti-Corruption Measures: The Case of Political Corruption in Malawi’ (Master of Laws thesis, University of Western Cape 2013).

105  Mavhungu Mafukata, ‘Evolution of Corruption in Sub-Saharan Africa: From Nkrumah to Mutharika’ (2015) 4(1) International Journal of Business and Social Science 87, 94.

106  Henry Kyambalesa, ‘Corruption: Causes, Effects and Deterrents’ (2006) 36(2) Africa Insight 102, 108.

107  Tanzi (n 88) 571–72.

108  ibid.

109  Linda Likomwa, ‘Government to Reorganize Public Service to Promote Professionalism’ (MANA Online, 17 June 2014) <https://bit.ly/2C1J4SQ> accessed 15 January 2018.

110  Public Service Reforms Commission, Making Malawi Work: Final Report (Public Service Reforms Management Unit 2015) <https://bit.ly/2RulWGo> accessed 15 August 2017.

111  A similar suggestion is made in the National Anti-Corruption Strategy. See Republic of Malawi (n 32).

112  Tanzi (n 88) 576. In The Republic v Dennis Spax Kambalame Criminal Case No. 108 of 2002 (Judgment on Sentence), the court made the following remarks: ‘Furthermore, corruption has the undesirable consequence of distorting the faith that people have in their public officials. Indeed corruption undermines trust and credibility in institutions and procedures.’

113  It may seem anomalous that public servants are routinely involved in business enterprises. However, excepting in the case of the President and members of cabinet, there appears to be no clear legislative guidance on the matter, save for the requirement to declare assets, liabilities, and business interests. See the Constitution 1994, s 88(a)(2); Public Officers (Declaration of Assets, Liabilities and Business Interests) Act 22 of 2013.

114  Rebecca Chimjeka, ‘Presidents Abetting Corruption—Report’ (The Nation, 25 March 2017) <http://mwnation.com/presidents-abetting-corruption-report/> accessed 15 January 2018.

115  Owen Khamula, ‘Malawi President Warns Corrupt Cabinet Ministers’ (Nyasa Times, 26 April 2017) <https://bit.ly/2FxzBWX> accessed 15 January 2018.

116  According to the 2010 Corruption Survey, however, Malawians’ confidence levels in current anti-corruption strategies declined from 75 to 59 per cent. See Centre for Social Research (n 61).

117  Kyambalesa (n 106) 113.

118  Melvin Mbao, ‘Preventing and Combating of Corruption in Zambia’ (2011) 44(2) Comparative and International Law Journal of Southern Africa 255, 272.

119  Mercy Malikwa, ‘Politics at Centre of Corruption’ (The Nation, 8 December 2017) <http://mwnation.com/politics-centre-corruption> accessed 15 January 2018.

120  Gashumba (n 93) 91–92.

121  Dintwe (n 47) 13.

122  Kyambalesa (n 106) 119.

123  Bruce Heilman and Laurean Ndumbaro, ‘Corruption, Politics and Societal Values in Tanzania: An Evaluation of the Mkapa Administration’s Anti-corruption Effort’ (2002) 7(1) African Journal of Political Science 1, 4–5.

124  World Bank, ‘Helping Countries Combat Corruption: The Role of the World Bank’ (World Bank 1997) <http://www1.worldbank.org/publicsector/anticorrupt/corruptn/corrptn.pdf> accessed 9 May 2017.

125  Heilman and Ndumbaro (n 123) 3–4.

126  ibid 4.

127  Mafukata (n 105) 89–91.

128  ibid 92.

129  In April 2017, the Government of Malawi organized a national anti-corruption conference under the theme ‘Government Wants to Know if Corruption is Real’ (Malawi24, 28 April 2017) <https://malawi24.com/2017/04/28/govt-wants-know-corruption-real/> accessed 14 August 2017. The conference’s theme suggests that corruption in Malawi may be just be a matter of perception. Inconsistent official messages like these hinder the country’s anti-corruption efforts.