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Trial by jury, not judge, for cashgate

In a few weeks’ time Malawians are expected to turn out for nail-biting presidential, parliamentary and local polls.

But they will walk into the voting booth without one piece of crucial information. This will be so because the United Kingdom decided it would be prudent to insert itself in the electoral process.

Last year, after a failed assassination attempt on Ministry of Finance Budget Director Paul Mphwiyo it was discovered that millions of dollars belonging to Malawians were stolen from government coffers. The people had been duped into paying for non-existent goods and services provided by entities owned by individuals with close ties to the ruling party.

If donors had elected not to do anything, Malawi could simply have ignored local calls for action and the issue could have died a natural death as there is a serious lack of political will to ensure that investigations of this nature are done thoroughly, conclusions reached and action taken.

Fortunately, the UK stepped in and financed a forensic audit of government books. After a British firm finished its work, names of those involved were suppressed much to the disappointment of Malawians. 

The UK says releasing the names would prejudice the administration of justice and Malawians cannot do anything about it because, as the old adage goes, ‘the one who pays the piper calls the tune’.

Without doubt the former colonial masters want certainty after May 20 and your guess is as good as mine who the ‘better devil’ is in these elections is for them. The UK has not forgotten how it was treated by Banda’s predecessor, Bingu wa Mutharika, who deported the British monarch’s top envoy here after he called the President an autocrat.

Banda, who was inaugurated as president after Mutharika’s sudden death in April, 2012, quickly mended fences with the UK, Malawi’s main benefactor, and started implementing reforms as demanded by the International Monetary Fund, a global lender. Mutharika, an economist, had put up resistance against devaluing the local currency, the Kwacha, saying the poor would suffer most.

The UK embraced Banda, Malawi’s first female president and Africa’s second in modern times. UK’s former premier Tony Blair became an advisor to Banda.

But the honeymoon would be short-lived. Blair and his team of consultants quit as details of plunder of public resources on the government seat, Capital Hill, surfaced.

As Banda will be squaring off against the late Mutharika’s younger brother, Peter, representing the Democratic Progressive Party; Lazarus Chakwera for the Malawi Congress Party and Atupele Muluzi of the United Democratic Front next month, the cases of those involved in the corruption scandal, dubbed ‘cashgate’, will be far from resolution.

It is hard not to think that everything has been done to ensure that the outcome does not affect the elections. Through insider leaks to the media, people can only guess of what actually happened. A report that would confirm their suspicions would likely deal a decisive blow to President Banda’s chances of winning the election. The slight edge the incumbent holds in unofficial polls conducted could be due to the fact that the cases have not been resolved.

And, regarding the trials, the author believes that Malawians would have been better served with a jury system.

‘Cashgate’ suspects could easily buy their freedom. They have hired the best lawyers money can buy in a country where the majority cannot afford a private lawyer. The suspects will go before a judge who goes by fact and decides on matters of law and procedure.

In a jury trial, members of the community act as fact-finders and, after hearing both sides, they decide based on how persuasive each side was which sounds more like emotions influencing their ultimate decision.

It is true that smart lawyers will try everything to get their client off the hook, thus they will prefer a judge – not a jury – to independently decide on credibility of evidence provided.

But still what should not be forgotten is that judges can be manipulated to decide a case in a certain way. While you want an impartial system when delivering justice, you also want a justice system that will protect those who could be taken advantage of. It is disheartening that white collar criminals often get off the hook easily and the lesson to others is to continue doing the same as once caught they too will get slapped on the wrist.

‘Cashgate’ forced donors to hold on tightly to their money and the effects have hit hard those who rely on government services. To the majority of them it is a life or death situation, yet those who stole the money only get to hear about it since they do not go to the same ill-equipped hospitals where everybody goes.

This is why you need people – trial by jury – and not a judge to decide corruption cases like ‘cashgate’.

*Mwanza is a founding editor of Maravi Post

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