Anti-corruption rhetoric:

Can we break the silence?

P3

Systems, procedures for rooting out corruption — P8 Corruption, bribery: Are they different? —P8

Special pullout the nation 5 february 2014 Special pullout the nation 5 february 20142 7

Special pullout the nation 5 february 2014

ARCHIVE FAST

Malaw i l o s e s 30 percent of its resources to corruption

the latest results by the World transparency i n t e r n a t i o n a l ’ s cor r upt ion index indicate that Malawi is on 91 out of 177 countries with the index’s score of 37.

there were also high levels of bribery in poland (15 percent), Slovakia (14 percent) and hungar y (13 percent) where the most prevalent instances were in healthcare.

Anti-corruption rhetoric: Can we break the silence?

Lilongwe Water 1.

Board

Malawi Police2.

Congoma3.

Anti-Corruption 4.

Bureau

3

PAGE 8

A classroom at Kankhoka Primary School in Rumphi: Corruption diverts funds from national development to personal interests

PHOT

OGRA

PH: N

ATiO

N L

ibRA

Ry

the fol lowing are institutions that are playing a critical role in fighting against cor r upt ion in Malawi:

by Michael chasukwa, chancellor college political science lecturer

breaking the Silence: Stop corruption

In a routine fashion, Malawi joins the world every year to commemorate Anti-Corruption Day. Once

again, the day has come for Malawi to fulfil her rituals of commemorating with the whole world the effort undertaken to curb corruption.

Today, top government officials have gathered at Bingu International Conference Centre to perform these annual rituals and we can easily predict what they will be saying; some comforting and sweet speeches for Malawians.

Definitely, what they will be saying will be contrary to what the empirical data is showing. Based on different indexes to do with corruption, the picture is gloomy for Malawi. The latest results by the World Transparency International’s Corruption Index indicate that Malawi is on 91 out of 177 countries with the index’s score of 37. This implies that Malawi is one of the corrupt countries. Last year, Malawi was on position 88 out of 177 countries. Since the dawn of multiparty democracy, each regime has had its own tales of corruption.

Irin News summarise it all: “The first president elected in multiparty polls in 1994, Bakili Muluzi, is currently answering

charges of diverting 1.7 billion kwacha ($4.5 million) of donor money into his own pocket. His successor, Bingu wa Mutharika, has been posthumously accused of building a K61 billion ($163 million) estate during the eight years he ruled the country. Most of that money is suspected to have been looted from state coffers, as he declared just K136 million ($363 000) in assets when he assumed office in 2004.”

Then we have cashgate scandal in 2013 where the nation was informed by Financial Intelligence Unit that up to K20 billion ($5.3 million) was siphoned from public funds. The biting truth is that all regimes have tolerated the deepening of corruption in our society while claiming that the priority of their regime is to stamp out corruption.

The worsening of corruption is of great concern to Malawians, especially that as a developing country, we should be making positive strides on building systems responsible for national development.

For a country that depends on external support for more than 40 percent of resources in the national budget, corruption should be a big blow. It is disheartening to note that 30 percent of the public resources go down the drain through corruption. While corruption practices have benefited the affluent, majority of Malawians have been exposed to ultra-poverty. Corruption has contributed to the collapsing of public service delivery machinery. The dwindling stock of essential drugs in our hospitals, shortage of learning and teaching materials and poor infrastructure has been largely attributed to corruption.

While there have been several attempts to curb corruption in Malawi, the campaign is yielding dismal results.

Anti-corruption campaign in Malawi has missed the target due to institutional, systemic and structural reasons, among others. Anti-corruption drive in Malawi has been used to mask different actors in the society that something is being done to stamp out the enemy of development. Anti-corruption drive has yielded little fruits because of the political path it has taken.

More often, anti-corruption errands are carried out so as to be politically correct. With the donors demanding accountability within the framework of good governance, almost all regimes since 1994 have successfully pretended to have anti-corruption drive at their heart to be in good books with the donor community.

In this regard, pronouncements on anti-corruption have been made as a means of accessing resources from the ‘benevolent’ donors. Just like most developing countries, our regimes have learnt how to be a darling of the international community by way of being cosmetic.

Anti-corruption strategies in Malawi have also had disappointing results because of the way it is operationalised. Pursuance of corruption cases in the court of law has appeared to be selective and witch-hunting. This has demotivated whistle-blowers to report incidents of corruption because they are not sure if their effort will pay dividends.

Further to this, where the whistle-blower is not well protected against the big fish, incentives to report corruption cases and testify in the court of law against the alleged offenders have dwindled.

To this effect, anti-corruption campaign has translated into a political tool used by all regimes to get cooperation of the suspected offenders.

Events around cashgate scandal may bear witness to this. To gain political mileage at the local and international level, the Bingu wa Mutharika regime moved so quickly to announce its seriousness in tackling corruption by vigorously pursuing the case of Yusuf Mwawa.

Despite being commended for operating on matters of principle, others have argued that the money involved was too little to go out in town to make such loud noise.

Another hiccup frustrating the anti-corruption campaign are institutions that have been entrusted with the mandate of handling corruption issues. In this regard, anti-corruption institutions are largely handicapped, hence they are having difficulties in executing their mandate.

The key institution in the fight against corruption is the Anti-Corruption Bureau (ACB) that was established in 1997. The functions of ACB include investigation as well as prosecution of corruption matters. But since inception,

FACTS

Special pullout the nation 5 february 2014 Special pullout the nation 5 february 20144 5

Special pullout the nation 5 february 20146

BACKGROUND In 1995, Parliament enacted the Corrupt Practices Act (CPA). The Act under Section 4 (1) establishes the Anti-Corruption Bureau, which is headed by a Director General. The Director General and the Deputy Director General are both appointed by the President subject to confirmation by the Public Appointments Committee of Parliament. The Bureau began its operations in 1997.

The Bureau is an autonomous body. However, the Director General is required to submit reports to the President, Parliament, and to the Minister of Justice and Constitutional Affairs regarding the general conduct and performance of the Bureau.

The CPA was amended in 2004 giving the Bureau increased powers to carry out its work in Malawi. The definition of corruption was widened to among other things, include abuse of office and possession of unexplained wealth. The amendment of 2004 also provides for the investigation of cases not only for corruption but for other offences that come to light during the course of investigating corruption. The Act also provides for protection of “whistleblowers” which was absent in the original law.

COMMEMORATION OF THE NATIONAL ANTI-CORRUPTION DAY

The National Anti-Corruption Day was inaugurated on 5th February, 2004 at Civo Stadium in Lilongwe. Since then the day is commemorated yearly under various themes.

This year we are commemorating the day for the 11th time under the theme, Break the Silence; Stop Corruption. This theme has been chosen after looking at the role that breaking the silence has in the fight against corruption. The theme is calling upon all Malawians to stop giving a blind eye to corruption incidents by denouncing and reporting any suspected corrupt practices. When anyone suspects corrupt practices taking place be it in their work places, communities and where they are trying to access services be it in public and private institutions, they are duty bound to report such incidents to the Anti-Corruption Bureau and/or management of the concerned institutions which ever may be convenient. Let us “Break the Silence and stop corruption”.

Vision“Attainment of a Corrupt-free Malawi”

Mission“To create a corrupt free Malawi that promotes good governance through corruption eradication programmes for socio-economic development”

Core Valueso Quality service delivery We will deliver services to our clientele in an efficient, effective and independent manner. o Personal and professional conduct We will at all times perform our duties with the highest degree of integrity, honesty,

competence, commitment, due diligence and without compromising on confidentiality.o Constitutional and legal principles We will at all times reinforce and adhere to all constitutional and legal provisions. o Adaptation We will adapt and be responsive to changing needs and circumstances.

Mandate The Anti-Corruption Bureau has the mandate given by the Corrupt Practices Act as follows:a) To take necessary measures to prevent the occurrence of corruption through review of

systems and procedures of public and private bodiesb) To disseminate anti-corruption messages and educate the public on the evils and dangerous

effects of corruptionc) To investigate and prosecute any corrupt practice reported to the Bureau.

ACHIEVEMENTSFrom last February 2013 the Bureau has registered a number of new developments. On 13th September 2013, the Bureau opened a new office in Zomba. The office is housed in MPC building near National Bank of Malawi. This vision was championed by late Justice Mtegha, SC, many years ago when he was Director of the Anti-Corruption Bureau. This is done as one way of bringing the Bureau closer to the people.

The Bureau through its Corruption Prevention Division and Public Education reached out to about 45,000 people in urban and rural communities through sensitization meetings in Chiradzulu, Mulanje, Phalombe, Mwanza, Chikhwawa, Mzimba, Rumphi, Lilongwe, Dedza, Ntcheu, Salima, Mangochi and Karonga among other districts. During the meetings Bureau officers heard from the communities pockets of corrupt practices in the implementation of Farm Input Subsidy Program (FISP), processing of police bail and during the sale of maize in ADMARC selling points. The communities were then informed to reject such corrupt practices and how they can report procedures such cases to the Anti-Corruption Bureau.

The Bureau has in the year participated in monitoring of MANEB Examinations and have made presentations at various fora including the Staff Development Institute, spreading anti-corruption messages to both public and other officers from private institutions. We have participated in radio broadcast debates and panel discussions on the fight against corruption. Madam President, the

Bureau has conducted Press Briefings including on the celebration of the World Anti- Corruption Day on 9th December 2013.

We have been able to help institutions in developing and launching of a number of policy documents such as Corruption and Fraud Prevention Policies for MACRA and MBC as well as Client Service Charter for the Immigration Department. The Bureau, has set up, trained and strengthened Institutional Integrity Committees in various Government departments and private bodies.

During the year, the ACB has set up a Forensic Unit within the Investigation Department which will help in the investigation of complex and sophisticated cases that require forensic analysis. What remains is for the concerned officers to undergo training.

REVIEW OF THE CORRUPT PRACTICES ACTIn an effort to strengthen the Corruption Practices Act, the Bureau has completed internal review of the Act and submitted the proposals to the Solicitor General and Secretary for Justice and the Minister of Justice and Constitutional Affairs for professional scrutiny. It also engaged concerned committees in Parliament for collective lobbying on the reforms. These reforms would greatly improve the efficiency and effectiveness of the Bureau if they are approved in Parliament.

APPOINTMENT OF DEPUTY DIRECTOR GENERALAfter close to ten years without a Deputy Director, the President appointed Mr. Reyneck Matemba to be the Deputy Director General, the second to fill the position since the inception of the Bureau in 1998. The first was Mr. Alex Nampota, when he left and later returned as Director he never was replaced. Mr. Matemba was subsequently confirmed by Parliament and took up his position in December 2013.

STRUCTURAL REVIEWThe Anti-Corruption Bureau during the year requested the Office of the President and Cabinet to approve a new structure for the Bureau where positions of the Director of ACB and his deputy have now been renamed to Director General and Deputy Director General respectively. This has been done to be in harmony of other Anti-Corruption Agencies within the region. This has provided a window of hope for officers that many of them will be promoted and this will create job opportunities to others out there. It is hoped this may also contribute to staff retention which has affected the Bureau in the past years.

NEW RECRUITMENTSApart from the coming in of the Deputy Director General, the Bureau has within the year, recruited 26 new officers mostly investigators in an effort to continue strengthening our human resource base. This is after experiencing a staff turn-over of 10 officers. The coming in of Mr. Matemba as Deputy Director General and the new officers is expected to improve the efficiency and effectiveness of the Bureau even more and will take the Bureau to greater heights.

The Bureau has also launched its 2012-2017 Strategic Plan and a redesigned website where the public can access information about activities of the Bureau. In addition to that we have in place a Client Service Charter which is a promise to our clients on how we will serve them and what we expect from clients for us to serve them better.

CHALLENGESDespite the accomplishment registered, in the past year, the Bureau had some challenges.• Bureau continues to suffer from financial constraints. The Bureau has scaled down in most of

its activities due to inadequate resources. Our 2013-14 budgetary allocation which is less than that of the 2012-13 financial year has not been adequately funded. This has grossly affected the Bureau’s general operations.

• The second challenge is the delay in disposing off of cases once they are brought before the courts. Most of the corruption cases take a long time to be completed due to adjournments and long intervals between one hearing and another resulting into spending more resources on a single case. We are well aware that such is the case because our colleagues in the Judiciary are overwhelmed with cases of different types. For this reason, we at the ACB wholly support the idea of establishing an Anti-Corruption Court. Once established, the court will ensure speedy processing and disposal of corruption cases and save a lot of money.

PLANS OF THE BUREAUOn top of fulfilling our normal mandate, the Bureau has an ambitious plan of starting construction work for its purpose built offices on its plot in Lilongwe. The Bureau has already engaged the Ministry of Economic Planing for the inclusion of this project in the PSIP.

ACB has partnered with the Malawi Electoral Commission to work towards ensuring that the electoral process is free of corrupt practices. ACB is ready and committed to do its job so that Malawians will have to elect leaders freely without any inducement. Bureau officers will be sensitizing the public and monitor every stage of the electoral process. Suspected corrupt practices will be investigated and prosecuted.

The Bureau is in the process of identifying partners in Mangochi, Kasungu and Karonga to assist in the dissemination of Anti-Corruption Messages on pilot basis. This if successfully implemented will improve ACB’s visibility.

COMMEMORATION OF THE NATIONAL ANTI-CORRUPTION DAY IN MALAWI

Special pullout the nation 5 february 20148

Beyond anti-corruption rhetoric Corruption, bribery: Are they different?

PAGE 3

ACB has been operating with lean and weak resource base.

In the absence of adequate funding, ACB has been crippled in dealing with corruption. The staff establishment is lean in critical areas of prosecution, investigation, civic education and outreach.

With few lawyers, there has been a backlog of cases to be brought before the court of law and pursue them to their logical conclusion. ACB has few specialist technical personnel to handle cases that need specialised mind. Considering the small pot it has, ACB is limited in contracting out the investigation and prosecution services to individuals and firms that have the expertise.

Furthermore, ACB cannot reach out to the grass roots to sensitise them on matters around anti-corruption.

This means the prevention component of the anti-corruption campaign has been seriously undermined.

By not funding adequately the prevention and civic education desk of ACB, the anti-corruption drive has been much reactionary than proactive. As a country, we have goofed big time in our effort to deal with corruption because we seem to be caught off-guard and doing fire-fighting most of the times.

Some roadblocks derailing the fight against corruption are deep-rooted in the legal framework

guiding corruption cases.With reference to

prosecution, the Corrupt Practices Act requires that commencement of prosecution for an offence should be done with the written consent of the Director of Public Prosecutions (DPP).

To this effect, ACB becomes helpless when there is no written consent from DPP. This questions the independence of ACB because much as an independent bureau had been established and much as it may investigate and come to a conclusion that there is need to prosecute, it may not proceed to prosecute without the blessings of the DPP.

On a different note, legally it is a problem to

initiate prosecution with the Director and Deputy Director of the Bureau who are the top authorities.

There have been times when the operations of ACB have been negatively affected due to vacancies in the position of the director and deputy director. It should be noted that in some cases, it becomes politically convenient for government or opposition not to have the positions filled in.

Occasionally, ACB has not had access to external funding due to vacancies in the top management. Britain’s Department for International Development (DfID) once suspended its support to ACB in 2012 in view of the absence of the director and deputy

director at the bureau. Without being

exhaustive, the practice of establishing a special commission of inquiry to investigate allegations of some corrupt incidents has also contributed to the loss of the fight against corruption.

Commissions of inquiry have been smokescreens and Malawians have benefitted little from these arrangements. The results have ended up gathering dust in shelves of high offices. These commissions of inquiry have drained public resources and served the interests of some powers in our society.

Commissions of inquiry have been a convenient way of avoiding the

prosecution of alleged offenders as more often than not these commissions of inquiry deliver a ‘not guilty’ verdict.

Have we ever questioned the merit of having these special commissions of inquiry when there is a legally constituted body with full mandate to investigate and prosecute corruption cases?

The pitfalls on the road to stamping out corruption have to do with political will and getting it correct on institutions and structures.

If we are to win the battle against corruption, a prerequisite is that existence of the political will to amend the laws in particular the Corrupt Practices Act of 1995. Amendments will have to establish and position the ACB as a truly independent entity so as to avoid direct and indirect political interference.

Authorities will also have to move beyond rhetoric and depoliticise the whole anti-corruption campaign. As a long-term, strategy civic education will have to be intensified with the hope of making a shift from being reactive to proactive in the way we handle our anti-corruption drive.

This means authorities will have to strengthen the prevention activities and communicate prevention work more actively to the public at large.

Serious soul-searching has to be done, otherwise Malawians will continue losing 30 percent of public resources through corruption and woes of poor public service delivery will never end. This being a year of possibilities let us make the real anti-corruption campaign a possibility.

Most people use the words corruption and bribery interchangeably, raising the question on whether the two are the same.

Oxford Advanced Learner’s Dictionary defines corruption as dishonest or illegal behaviour, especially of people in authority whereas bribery is defined as the act of giving someone money or something valuable to persuade them to help you by doing something dishonest.

Lawyer Christopher Tukula says one cannot claim that corruption has taken place unless there is evidence that someone induced another to get preferential treatment, break laws, defraud a company or government.

“A bribe is paid out to induce an official to perform an act that he would still have performed even without bribe,” he said.

Tukula, however, contended that at common law it is difficult to prove that someone got bribes to do something

AMA associate director Elwin Sichiola says bribery is another form of corruption which is endemic in most countries.

AMA is one of the firms that are fighting corruption in the country.

Sichiola appealed for concerted efforts for Malawi to win the fight against corruption.

StAff REPoRtER

Systems, procedures for rooting out corruptionChRiStoPhER JimuStaff Reporter

Corruption is subtle. Even in places with proper systems

and procedures, one is surprised to discover that corruption is also prevalent.

Some people argue that putting in place systems is one thing and enforcing them is another.

Malawi Economic Justice Network (Mejn) director Dalitso Kubalasa encourages people to report any suspected corruption acts.

“Where the moral

foundations of society are no longer respected, immoral acts and looting are on the rise, corruption become rampant.

“In fact, some people think they are above the law and cannot be prosecuted even after looting public resources,” he said.

Kubalasa said institutions such as the Anti-Corruption Bureau (ACB) are weak to effectively fight corruption due to lack of resources.

He expressed the need to have a robust legal framework for ensuring that corrupt practices are

prevented and prosecuted effectively.

The Malawi National Integrity Assessment Report for 2013 noted that the majority of cases, especially involving high profile figures, were either delayed to be concluded or they were not concluded at all.

“A good example is a case of the former head of State [Bakili Muluzi] that has been in the courts for over five years now.

“The delays appear to be caused partly by lack of provisions requiring conclusion of cases within a set time line. This has

resulted in drawn-out trials some of which do not seem to be headed for any logical conclusion,” reads the report.

It also notes lack of a proper system to record corruption cases.

“The Judiciary does not have separate statistics for corruption cases for the public although it is trying to record such statistics for its internal usage.

“The broader contribution of the Judiciary to anti-corruption reforms is rather indirect. So far the main channel has been through involvement in seminars/training

workshops where they may air the suggestions on desirable reforms,” reads the read.

Kubalasa admits that fighting corruption is not an easy task.

“Corruption is a very complicated phenomenon. Of course, it can be said that there is no country in the world that has been able to completely deal with corruption.

“Even from the perspective of Transparency International tools for measuring corruption and anti-corruption efforts, even the best performing economies still have some

degree of corruption,” he says.

Kubalasa said corruption retards development and keeps people in poverty.

“Corruption negatively affects everyone, including people who perpetrate it. It diverts resources meant for national development for personal benefits. This is why we all need to join hands to uproot corruption,” he said.

In Malawi, the responsibility to persecute corruption cases is vested in the Anti-Corruption Bureau (ACB) which is expected to operate independently.

Corruption denies people access to basic resources such as water

PHOT

OGRA

PH: N

ATiO

N L

ibRA

Ry

featureS breaking the Silence: Stop corruption