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HomeLaw and orderUncommon Sense: Why we should not be excited by arrests in Malawi

Uncommon Sense: Why we should not be excited by arrests in Malawi

Norman Chisale

You will have to pardon me if I seem unimpressed with the wave of arrests that have been sweeping across the nation lately.It is because arrests are not new me.

For some reason, the populace seemed obsessed with seeing a person in handcuffs being taken to apply for bail before a magistrate. Such scenes, however, do not impress those of us that have studied and closely observed the way rich criminals are dealt with in Malawi, especially those of a political disposition or those of Asian origins.

The problem, in as far as the enforcement of the law and the reaches of justice are concerned in Malawi, is not that the culprits are not known, or that they are never arrested.

Over the years, when it comes to matters of high-level corruption and impunity, the perpetrators are always known.

They are often arrested even. The problem is that they are never convicted. If they are really unlucky, they get to spend only a few days in the holding cells pending bail.

More often than not, however, they never even spend one night at the police cells. They summarily are given bail according to the law, and more often than not, that is the last country hears of them!

To politicians, it seems, the demands of justice are satisfied as soon as an offender or a suspect is arrested. How sad!

What past experience has taught us is that Malawi is in a criminal vicious cycle that needs seriousness and vigilance for it to be broken.

Those that are the greatest offenders are those that have power and use that power to loot and plunder public coffers for their personal benefit.

When by chance they get found out and get arrested, they use the very same looted funds, which constitute their fat bank accounts, to avoid spending nights in police cells, and ultimately to hire lawyers, bribe officials, or otherwise use all sorts of tactics money can buy to extract and extricate themselves out of paying for their sins. Their cases hardly ever come to trial, or hardly ever see their conclusion, and in the rare instances that they do get to the end, the sentences are simply a slap on the wrist and the looted funds and corruptly acquired assets are never seized.

You can accuse me of being racist or xenophobic if you like, but I have often wondered why there never are any Malawians of Asian origin or any significant numbers of resident foreigners in our prisons when these people constitute a whole 2 per cent of the population in Malawi.

Perhaps they are all saints and never ever commit any crimes? No. The truth is that they are in fact some of these very people that corrupt our politicians and perpetrate some of the greatest impunity crimes in the country.

Take for example the case of Zameer Karim who corrupted the very president himself and embroiled then president Peter Mutharika in the police food scandal, depositing MK145 million into the president’s personal account and donating vehicles to the president and to his political party.

In recent times, revelations of this kind have been coming thick and fast, with so-called Malawians of Asian origin embroiled in corrupt cement deals and other looting that was taking place during the DPP regime.

I do not believe that it should be enough to assuage the anger of the Malawian public simply for those named – the Chisales, the Magalasis, the Karims and the Chunaras – to be called for questioning after which they are given bail and then set free BakiliMuluzi style.

I believe if ever there was a time to reset the clock on corruption and corruption cases, that time is now. What we need to demand from our leaders, and especially from those charged with enforcing the laws of the country, is the relentless pursuit of the offenders and the relentless follow-up of the cases until they reach their ultimate end and the offenders are convicted and sentenced.

Even then, should the looters be prosecuted, convicted and sentenced, the aggrieved Malawian public should not be satisfied unless the sentences are substantial, and more importantly, steps are taken to recover the assets of the offenders though cash forfeiture, asset forfeiture or other relevant avenues of criminal law.

Forfeiture applies to the seizure of personal assets by law enforcement if there is reason to believe these assets were acquired illegally or are being used illegally.

Criminal confiscation of this kind is an important scheme by which Malawi can deprive the offender of the value of the benefit obtained from his criminal conduct.

In this particular area of criminal law, in most jurisdictions, the burden of establishing that the defendant holds the property or has made a transfer or expenditure is on the prosecution but it is on the balance of probabilities.

Once this has been established, the onus shifts to the defendant to displace the assumption by showing that his or her assets are not derived from criminal conduct and only clear and cogent evidence will suffice.

As a safeguard for the defendant, the court must not apply the assumption if there would be a serious risk of injustice if it were made. Clearly triggering the assumptions greatly assists the prosecution in its task.

I am not convinced that these important provisions are already available in existing Malawian legislation sufficiently to provide law enforcers and prosecutors the powers to deal with looters.

If they do not exist, then the necessary legislation needs to be reviewed and the provisions added as a matter of urgency. Criminal confiscation is a very powerful tool for prosecutors and law enforcement agencies.

It is often further strengthened by the power to restrain property. Restraint orders freeze assets so that they are available to satisfy any confiscation order that may be (or has been) made against the defendant. They can be obtained when either a criminal investigation has started or criminal proceedings have commenced.

We cannot be getting excited about arrests when experience has shown us that the rich are invariably able to wiggle out of these situations by using the same money they looted to beat the system and avoid facing justice.

Press conferences about the willingness of various law enforcement agents is not enough either. There is need for action- and of course I am not speaking of arrests.

On the part of the administration, there is need for urgent legislation to free these agents from the manacles of political interference that have dogged the institutions for so long.

Fellow Malawians, if we want the looting to stop, we must expect and demand to see the looters and the plunderers prosecuted and convicted and the monies they stole recovered in cash and through their assets. Nothing less!

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Z. Allan Ntata
Z. Allan Ntata
Z Allan Ntata is a Barrister of Middle Temple, Anti-Corruption & Governance specialist and author of Trappings of Power: Political Leadership in Africa. Currently an Independent consultant in Governance and Anti-corruption, Ntata has a diverse background from lecturing in law to acting as legal counsel to the president of Malawi.


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