Monday, January 30, 2023
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Of Malawi’s corruption justice, leadership crisis

By Burnett Munthali

The judiciary in Malawi is busy annoying the general population by defeating justice in the name of delivering justice and pretending to be independent while they discharge their duties corruptly often times if not at all times.

Our judiciary in Malawi is completely corrupt and rotten that you cannot get justice for free. You have to pay for victory in court.

The foreign countries which hailed decorated the Malawi Constitutional Court with all positive adjectives in the recent famous 2019 presidential elections case for what seemingly looked like standing bold and professional did not and do not understand anything how rotten this arm of government is. It is simply hopeless.

And today we are seeing and hearing of selective justice outcry from the public.

Corruption in Malawi

The whole essence of courts is to do justice, to guarantee liberty, to enhance social order, to resolve disputes, to maintain rule of law, to provide for equal protection, and to ensure due process of law.

The purpose of the Anti-Corruption Bureau is to enforce the law on corruption by acting both pro-actively and re-actively to prevent corruption, to detect and prosecute suspects in the court of law.

The Anti-corruption’s collective action is a form of collective action with the aim of combatting corruption and bribery risks in public procurement. It is a collaborative anti-corruption activity that brings together representatives of the private sector, public sector and civil society.

The Anti-Corruption Bureau (ACB) is established under the Corrupt Practices Act 1995. The ACB is expected to be an independent government body which must use a four-pronged approach to fight corruption: investigations, prosecution, prevention and public education.

Court stay order is meant to be a suspension of a case or a suspension of a particular proceeding within a case. A judge may grant a stay on the motion of a party to the case or issue a stay sua sponte, without the request of a party. Courts grant a stay order in a case when it is necessary to secure the rights of a party.

The Supreme Court of Appeal is the superior court of record and has such jurisdiction and powers as conferred on it by the Constitution or any other law. It is the highest appellate court and has jurisdiction to hear appeals from the High Court and Tribunals as an Act of Parliament may prescribe.

The functions of the Supreme Court include; (1) Function (2) Case deciding. (3) Administrative. (4) Regulatory. (5) Composition. (6) Jurisdiction. (7) Exercise of Jurisdiction. (8) Judicial Administration.

Although the Supreme Court may hear an appeal on any question of law provided it has jurisdiction, it usually does not hold trials. Instead, the Supreme Court’s task is to interpret the meaning of a law, to decide whether a law is relevant to a particular set of facts, or to rule on how a law should be applied.

We have some groups organized to carry out a particular bribery or corruption in Malawi. Unfortunately, some associations of organized criminals include those leaders we have voted into power to rule this country.

Syndicates comprising of companies in the same industry are defrauding our tax payers money day and night. For example, two pharmaceutical companies may combine their business and corruption teams by creating a syndicate to defraud government with a new over priced drug. Or several companies may form a syndicate to manage a large development.

Other terms for syndicate including association, cartel, conglomerate, gang, mob, organization, ring, union, board, bunch, cabinet, chain, chamber, combine, committee, company, council, crew, group, outfit.

Syndicate, also called Crime Syndicate, in the United States, an association of racketeers in control of organized crime

Self-organizing groups of individuals, companies, corporations or entities are formed in Malawi to transact some specific business, to pursue or promote a shared interest.

In a nutshell, corruption increases inequality, decreases popular accountability and political responsiveness, and thus produces rising frustration and hardship among citizens, who are then more likely to accept (or even demand) hard-handed and illiberal tactics.

Causes of public sector corruption include: Country size, Country age, Resource curse, Political instability, Wages, Lack of rule of law, Failure of governance, Size of government. Malawi at the age of 58 since independence is more corrupt today than ever before.

Among the most common causes of corruption are the political and economic environment, professional ethics and morality and, of course, habits, customs, tradition and demography. Its effects on the economy (and also on the wider society) are well researched, yet still not completely. We need to find out more on the human mindset and corruption as we go.

It is the prerogative of the parliament to amend the constitution and make the laws; it is the duty of the judiciary to decide if basic structure of the constitution are transgressed by such laws. Once the parliament has done its job, its Supreme Court which decides its constitutionality through judicial review.

Parliament is sovereign. The supremacy of the legislature or parliament is above all other government bodies, including the executive and the judiciary.

The core difference between parliamentary sovereignty and constitutional supremacy is where the ultimate authority for law-making lies. In parliamentary sovereignty, it is the legislature; in constitutional supremacy, it is the constitution of a state.

The doctrine of the sovereignty of Parliament is associated with the British Parliament while the principle of judicial supremacy with that of the American Supreme Court. Malawi has copied the law from both countries.

“Judicial supremacy” is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them.

The doctrine of parliamentary supremacy may be summarized in three points:

(1) Parliament can make laws concerning anything.

(2) No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).

(3) A valid Act of Parliament cannot be questioned by the court.

The Office of the Director of Public Prosecutions was established by the Director of Public Prosecutions Act 1990 (“the Act”) to institute, conduct and supervise prosecutions and related proceedings.

Anti-corruption policy laws generally prohibit both bribery of government officials and private sector (commercial) bribery. In addition to the prohibition of bribery, the law mandates that companies establish and maintain accurate books and records and adequate internal controls.

Accountability plays a great role in fighting corruption.
Accountability can reduce corruption and other abuses, assure compliance with standards and procedures, and improve performance and organizational learning.

We can control corruption. We can
report corruption by;

Exposing corrupt activities and risks that may otherwise remain hidden.

Keeping the public sector honest, transparent and accountable.

Helping stop dishonest practices.

Ensuring that public sector employees act in the public interest.

So this fight against corruption is for everyone together teams and individuals and citizens of Malawi.

The Attorney General is responsible for advising the Government on all legal matters and conducts civil litigation for and on behalf of the Government.

The principal duties of the Attorney General are to represent Malawi in legal matters. Supervise and direct the administration and operation of the offices, boards, divisions, and bureaus that comprise the Department.

The adult criminal justice system is comprised of four components; legislation, law enforcement, courts, and corrections. Each of these four components is comprised of subcomponents.

Mutual agreement. Advocates of the social contract say that justice is derived from the mutual agreement of everyone; or, in many versions, from what they would agree to under hypothetical conditions including equality and absence of bias. This account is considered further below, under ‘Justice as Fairness’.

Malawi is under state capture. In other words, the warm heart of Africa is under a systemic political corruption in which private interests significantly influence a state’s decision-making processes to their own advantage.

In our politics we also have regulatory capture (also agency capture and client politics) a form of corruption of authority that occurs when a political entity, policymaker, or regulator is co-opted to serve the commercial, ideological, or political interests of a minor constituency, such as a particular geographic area, industry, or powerful individual as is the case in the recent corruption revelations of top government officials, civil servants, journalists and some business individuals.

We need a state capture inquiry in Malawi. The Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, better known as the State Capture Commission, must be established now by the State President to investigate allegations of state capture but unfortunately, the President and his cabinet, Police, Army, journalists, Director of Public Prosecutions are all suspects of corruption in the poorest country of the world, Malawi.

A report compiled by the Malawi Anti-Corruption Bureau and other social media sources indicate that trillions of Malawi Kwacha (equivalent to several US billion dollars) was illegally smuggled out of Malawi to Dubai by a businessman, politicians and their associated companies in recent years (2019-2022)

We need a state capture inquiry today of Churches, auditors in government and private sector and Malawian academics to work together and establish the economic damage that has been caused to this young, poor and innocent nation.

Indeed, power corrupts leaders but I don’t know exactly why it is like this .

Psychologists refer to this as the paradox of power. The very traits that helped leaders accumulate control in the first place all but disappear once they rise to power. Instead of being polite, honest and outgoing, they become impulsive, reckless and rude.

Leadership requires delegating someone to do certain jobs on your behalf but President Reverend Lazarus Chakwera announced recently in July 2022 that he would not delegate any duties to his Vice President Dr Saulos Chilima because he had been mentioned in an ACB report that he had benefited from recent corruption allegations. However, the suspension of such delegated duties to the Vice President do not make any smallest sense to me because Chilima is still the VP in that office drawing a salary at the end of each month and there is no investigation, interrogation or arrest taking place so far. There is no logic in all this circus show.

However, confidential jobs high priority and confidential jobs should never be delegated. These tasks are highly important so the President’s expertise should come in handy. Moreover, assigning such jobs to the VP at this point can lead to a breach of privacy and other similar issues.

But Chakwera is also a suspect in the same corruption allegations in which Chilima is suspected to have benefited. Malawi is in a corruption crisis and leadership crisis at the same time.

Disclaimer: The views expressed in the article are those of the author not necessarily of The Maravi Post or Editor

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