The Anti-Corruption Bureau (ACB) has been given two months to start prosecuting 14 Cashgate-related cases that have been in limbo for the past five years or risk having the cases thrown out.
This follows court orders on July 11 the magistrate’s court in Lilongwe made, warning the bureau to appear in court within 14 days, to explain why the 14 suspects answering corruption-related charges should not be discharged.
The orders signed by chief resident magistrate Violet Chipao demanded ACB to explain why the accused should not be discharged under Section 247(1) of the Criminal Procedure and Evidence Code.”
The 14-day period expired on July 25.
In an interview on Tuesday, ACB director general Reyneck Matemba said his officers went to the court on July 26 and August 5 to provide feedback on the 14 cases.
The ACB, he said, delayed to prosecute the cases due to “one aspect of investigation” which is yet to be concluded.
But Malawi Law Society (MLS) has described the failure to prosecute the 14 suspects in five years as disappointing, saying ACB and Director of Public Prosecutions (DPP) had enough time to prosecute the cases.
“The ACB could have done better by prosecuting the cases within a reasonable period, especially considering public interest in Cashgate cases,” said Burton Mhango, the MLS president.
Parliament’s Legal Affairs Committee chairperson Kezzie Msukwa also described the development as unfortunate, saying Malawians deserve answers from the two institutions.
He said the committee will take up the matter with ACB and DPP, to find out what happened for them to fail to prosecute the 14 suspects in the past five years.
“Malawians can only be saved from corruption if the authorities that are given power to deal with such matters deal with them diligently. As a committee, we will surely take up the matter to find out what happened,” he said.
The 14 include director of Public Declarations of Assets and Liabilities Christopher Tukula, who was arrested on October 17 2014 for reportedly interfering with investigations into ongoing Cashgate cases, former deputy Inspector General of Police Nelson Bophani, politician Hophmally Makande, lawyer Yambani Mulemba, former Malawi Energy Regulatory Authority (Mera) acting chief executive officer Ishmael Chioko and Thandizo Mphwiyo, wife to former budget director Paul Mphwiyo.
Others are Patricia Chatuwa, Maria Chagoma, Charles Chalira, Joyce Chimwemwe Mkandawire, Zainabu Swaleyi, Geoffrey Chimimba, Daniel Magalasi and Gladys M’mangisa.
The suspects were answering charges ranging from money-laundering contrary to Section 35(1) (c) of the Money Laundering, Proceeds of Serious Crime and Terrorist Financing Act; conspiracy to commit a felony contrary to Section 404 of the Penal Code; giving false information to the bureau contrary to Section14 (1) (c) of the Corrupt Practices Act, theft by public servant contrary to Section 278 of the Penal Code and misuse of public office contrary to Section 25B(1)of the Corrupt Practices Act.
Makande, who was answering money-laundering charges, took plea on October 23 2014 and was granted bail the same day, but since then no action was taken by the State to prosecute the matter.
Bophani was charged with two counts of misuse of public office and conspiracy to defeat justice. He took plea on October 24 2014 and was granted bail the same day, and the State has not taken further action to prosecute the case.
The court order for Chioko, charged with money-laundering and conspiracy to defeat justice also shows that the former Mera boss did not enter plea, but the matter was registered on October 13 2014.
However, Matemba said some of these cases were scheduled for trial on July 26, but ACB will go back to the court to ask on the way forward.
“[On] Christopher Tukula’s case, we asked for consent to prosecute from the office of the DPP. You may wish to know that Mr. Tukula was jointly charged with Mr. Leonard Kalonga, who was convicted and is serving sentence. There’s a very good legal reason the case could not proceed, the office of the DPP may provide guidance on this matter,” he explained.
Matemba said for Chioko, Thandizo (Mphwiyo), and Mulemba, it is one case, and ACB intends to seek the court’s direction.
“There’s one aspect of our investigation that remains to be concluded, which unfortunately, we can’t disclose, but we will be able to finish investigating that aspect in six weeks’ time,” he explained.
On his part, spokesperson for the Ministry of Justice and Constitutional Affairs, Pilirani Masanjala, said the office of the DPP received one application from ACB, requesting consent for Tukula but pointed out that the law provides that where the DPP for one reason or the other has not given consent within 21 days, the ACB is empowered to proceed as if consent was provided.
“The office of the DPP endeavours to comply with the provisions of the Corrupt Practices Act and where it is not practicable to do so in the interest of justice, the office provides reasons in writing,” he said.
In March 2018, ACB received 67 files based on a forensic audit covering the period 2009 to 2014 which found that K236 billion could not be accounted for in government books.