Malawians may not know the truth about the K61 billion suspected fraud transactions former president, the late Bingu wa Mutharika, conducted through his offshore account in Jersey, Europe, as ACB concedes that it cannot get key information on the matter.
The development also follows Public Affairs Committee (PAC) revelation, last week, that there was no progress on a separate inquiry the committee wanted to embark on, on the wealth Bingu acquired during his eight-year tenure. PAC attributes its failure, to make progress on the matter, to lack of government commitment to fund the inquiry.
The Anti- Corruption Bureau (ACB) has been waiting for key information from authorities in Jersey that would have helped to unearth the suspected fraud transactions by the late Bingu through a Standard Bank account he opened there.
But the bureau’s director Reyneck Matemba, in an interview said they have waited for the help from authorities in Jersey without success, saying they were helpless as the matter is more dependent on that key information.
“In matters of this nature, we depend on support from authorities in those jurisdictions. We have no powers to investigate matters beyond our borders, even as near as Tanzania. It is outside our jurisdiction,” he said.
Matemba asked for a questionnaire for detailed responses on the matter, and the bureau’s senior public relations officer Egrita Ndala, said in her responses that the bureau sent requests for information to various countries, which it has not received to date.
“In the absence of such information, the case file remains open with the hope that investigations will continue when that information is received,” Ndala said.
She said there were no other legal means to obtain the information apart from what was followed by the bureau.
“The bureau can only send reminders to the requested institutions, which it has done,” Ndala said.
Financial Intelligence Authority (FIA) director Atuweni Agbermodji said in a response to a questionnaire that her institution worked with ACB on the matter in 2013.
“Regarding the case of the late Bingu wa Mutharika’s estate that was being investigated for the unexplained accumulation of wealth, the FIA worked with a number of stakeholders, including the ACB.
“The role of the FIA in the task force was to provide financial intelligence [such as] pointing out to law enforcement agencies towards the direction where they could investigate,” she said.
Agbermodji said the FIA is a member of the Egmont Group of FIUs (financial intelligence units) that exists to facilitate formal exchange of information and intelligence among countries.
“In this regard, the FIA obtained information and intelligence to provide this to law enforcement agencies. Unfortunately, information exchanged on this platform cannot be used as evidence.
“Once the law enforcement agencies have intelligence, they use this to obtain intelligence from other jurisdictions using mutual legal assistance. The FIA is not part of this process,” the FIA director said.
Malawi Law Society (MLS) president Alfred Majamanda said in a response to a questionnaire that it was ideal for the ACB to work with institutions such as FIA to get the required information as the information was outside the bureau’s jurisdiction.
“The Financial Crimes Act allows for mutual assistance where the minister [Finance] can, under the mutual assistance in criminal matters Act, request for information from the designated country as long as there is a suspicion of a criminal issue,” he said.
However, a Chancellor College-based legal expert Mwiza Nkhata said in an interview it was not surprising that the bureau was not being successful to obtain that key information from Jersey.
Nkhata explained that Jersey is among well known offshore tax havens that use secret laws and whose economy is largely dependent on financial services.
A tax haven can be crudely defined as ‘a country or independent area where tax levies are levied at low rate’.
Said Nkhata of the New Jersey tax haven: “Their economy is dependent on financial services and people take advantage of the secret laws to conceal their wealth there. It may not be in their [Jersey’s] best interest to release that information; they will be ruining their economy if they dared.
“If they start releasing such information, most likely their international client-base would shrink.”
He said for such cases, authorities depend on international cooperation for assistance, be it mutual, bilateral or multilateral, which he said may not be applicable, especially when dealing with countries such as Jersey.
In the investigations, which former president Joyce Banda’s administration launched towards the May 2014 Tripartite Elections, Malawi authorities asked for the information through the office of the Attorney General (AG) in Jersey, an Island, which is ruled by the Duke of Normandy—a title held by the reigning Monarch of the United Kingdom, though unrelated to those duties as king or queen of the UK.
In early January 2016, Alec Le Sueur, practice manager and director of administration, who is also a media contact for Law Officers’ Department in Jersey, told Nation on Sunday, in a response to a questionnaire, that he could not provide answers to questions we raised on the fraud probe.
Le Sueur, responding then on behalf of a senior legal adviser Andrew Belhomme, an officer in the AG’s office, who in a letter dated May 14 2014, asked Standard Bank Jersey Limited to disclose information relating to the people under investigation, said he was sorry to disappoint that no answers could be provided.
Le Sueur wrote: “I am sorry to disappoint you with this response, but as you will be aware, any approaches for legal assistance from foreign governments are received in confidence, and equally, our replies are given in confidence to the government requesting our assistance.
“I am afraid that I am not able to provide you with any information regarding government requests for mutual legal assistance.”
The late president, according to documents from Jersey authorities, which our sister newspaper The Nation had seen at the time the investigations were launched, opened a joint account with his daughter Duwa where it was believed that a suspected offence involving fraud took place.
The ACB, through Interpol, had asked Her Majesty of Jersey to help it investigate the suspected fraud relating to bank account number 58099848, Optimum account, held in the name of Bingu wa Mutharika and Duwa Kafoteka.
Belhomme, according to the documents The Nation had seen, wrote to the bank in Jersey: “It appears to the Attorney General that there exists a suspected offence involving serious or complex fraud and that there is good reason for him to exercise the powers conferred upon him by the Investigation of Fraud [Jersey] Law, 1991, as amended.
“I have reasons to believe that you have information about the affairs of the persons under investigation and I, therefore, require you to answer questions or…otherwise furnish information with respect to matters relevant to the investigation to myself or to any person designated to assist in this investigation.”
The advocate had said he also required the bank to produce, within 21 days from May 14 2014, true copies of account opening, mandates, reports and details of signatories, know-your-customer documentation, bank statements, paid cheques, transaction advices and correspondence (including records of telephone conversations and meetings and managers’ notes) relating to the account.
The Jersey authorities said the documents required shall cover the period from account opening to date and covering the period from May 1 2004 to date.
Bingu, who ruled from 2004 until his death on 5 April 2012 in his second-term, had been under probe after his death.
Bingu’s wealth believed to be in billions of kwacha amassed within eight years of his rule stirred controversy, forcing ACB that time to launch the investigation into the matter locally and internationally.