In 2014 when Peter Mutharika became president, I was asked if I would like to become the Director of the Anti-corruption Bureau (ACB). I turned the offer down. I was not interested, I said.
The Chinese have a farewell that says, “May you live in interesting times”. In my mind, the only “interesting times” in the Malawian politico-legal scene that can match the three years I spent working as a Prosecutor with the ACB are the present times. Interesting in a frightening way to most public service lawyers.
Let me elaborate.
While with the Malawi Anti-Corruption Bureau (ACB) in 2006, the then Director of the bureau was suspended by order of the president only hours after he arrested the former head of state, Bakili Muluzi on corruption charges (Just when I was getting ready to get down and dirty to fearlessly prosecute him in an anticipated case of the decade for Malawi!). That must certainly qualify as being interesting. The ‘independent’ director of the bureau decided to exercise his independence and upon being convinced that there was evidence of corruption made a move that potentially was to score positive political points insofar as the administration’s drive to fight corruption was concerned. His reward? A suspension. Some observers asserted that there was sense in the suspension. After all, there was a budget session pending in parliament at the time and the Director’s move could only make an opposition bent on frustrating the administration even more determined in their sabotage attempts. It’s all a matter of timing- I heard many say, and the director’s timing was wrong. In other words, there was sense in sacrificing the pursuit of enforcing the law at the altar of political expediency.
Bakili Muluzu arrested
Since when did the law and due court process become subject to prevailing party politics? Perhaps in the short term the president’s politics would have taken a hit. If so, then it certainly would have been a minor hit, one that could easily be overcome. Compare such a hit with acquiring the distinction of being the president that suspended a professional for doing his job. Now, that is a savage blow that no amount of window-dressing can cure. It’s obstruction of justice. It’s a tarnished legacy.
Today, 14 years after that arrest, the prosecution of Bakili Muluzi remains in limbo, and Bingu’s legacy remains tarnished on this point.
To look at the political damage of miss-timing the arrest of a former president as more damaging that that of the administration interfering with the activities of an independent legal body is to appraise the situation with myopic vision.
Democratic politics can be in no greater danger than when politicians begin to meddle dance on the very heart of legal process. Let the budget session in parliament be sabotaged by the opposition because the law is taking its course on an important suspect in the country’s greatest corruption investigation. Let the passing of the budget be delayed because a theft suspect- no matter how elevated and lofty their position- is arrested and brought to book. If one’s political adversaries can use that as a pawn in the political game, surely it is only a matter of time before the people judge them and stop them in their tracks! But to succumb to the pressure? Surely one should be proud to stand firm on the law and the law alone? If asked why the director arrested the former head of state at such a time, surely the authorities would provide the simple answer: because he had legal basis for such action. Full stop. If asked why the administration could only stand and look on, surely the answer was simply that that was the only right thing that the administration could do since the director in question is not a politician but a professional. Full stop.
Now, in recent times, we seem to have come full circle. The current director of the ACB was at pains last week trying to explain himself and his job through a press conference. The issue? The progress and nature of the investigation into allegations of bribery reported to his office by the Chief Justice. The allegation is that some individuals tried to bribe the high court judges hearing the elections case. Considering the gravity of the allegations and the importance of the case, one would think the ACB director would simply get on with his job and arrest and prosecute the suspects and not worry or bother with press conferences or any other such ceremonies. Why does he need to hold press conferences? So, why does he seem hesitant to do what a law enforcement officer is expected to do in such circumstances?
Now, I may sound like a broken record here because I will have to go into territory I have covered over and over again in this column, but the reason is as simple as it is an old one.
It is the governance framework, stupid!
In a rotten governance framework like the one Malawi finds itself in, the two most common types of judicial corruption are political interference and bribery. Political interference is when politicians or staff from the legislative or executive branch meddle in judicial affairs or collude with judges in fraudulent schemes. Despite efforts to isolate the judiciary from politics, judges and other court personnel still face significant pressure to rule in favour of powerful political or business entities rather than in accordance with the law. A malleable judiciary can be used by those in power to provide protection for and lend legitimacy to fraudulent acts.
If you happen to be the unfortunate person who finds himself in the role of Director of the Corruption-busting body in such a framework, you have an undesirable job of trying to cling on to the coattails of your professionalism when you are always fearing for your job, your life and there are so many other pressures on how you do your work. It is a thankless role.
Many might look at Ryneck Matemba, the current director of the Anti-corruption Bureau and castigate him for failing to do his job. But would any other person, any other lawyer be able to perform under the circumstances he finds himself in? In the past, we have had different personalities heading the ACB. We have had judges, police officers and accountants- all of them personalities of unimpeachable character. Was the ACB better because of that? The answer is NO.
In our rotten governance framework professionals inevitably become pawns and scapegoats in our society’s political games.
So, before we condemn Matemba and the ACB too quickly in the “ConCourt” Bribery scandal, let us take a moment and consider together now what job security or professional independence anyone has that is in a job that is at the discretion of the head of state.
What of the dedicated DPP doing his job prosecuting politicians or individuals that happen to be friends of the incumbent administration?
There might be a vacancy in the ACB director’s position soon, it seems. In the present governance framework though, who is foolish enough to desire the position?