Two lawyers have warned former president Joyce Banda that she risks exposing herself to prosecutory scrutiny if she continues to defend herself in public on Cashgate allegations.
The caution comes in the wake of a statement Banda issued on Monday in reaction to articles published in The Nation and our sister newspaper, Nation on Sunday, last week which indicated that a witness statement signed by Cashgate convict Tressa Senzani, a former principal secretary (PS), says the former president gave instructions to civil servants to siphon billions of public funds to finance the People’s Party (PP) campaign for the May 20 2014 Tripartite Elections.
In her statement, Banda has denied the allegations, claiming that she could not have issued such instructions to a Cabinet meeting comprising civil servants who belong to different political parties.
But associate professor of law at the University of Malawi’s Chancellor College, Mwiza Nkhata, said in an interview on Monday that it was premature for Banda to be offering her defence through public statements when she has not been formally charged with any crime.
The Anti-Corruption Bureau (ACB) and the Directorate of Public Prosecutions (DPP) have not come out to say whether they are investigating the former president following revelations by those convicted on Cashgate charges such as former civil servant Leonard Kalonga and businessperson-cum-politician Oswald Lutepo.
Nkhata said all evidence which mentions Banda would be subjected to scrutiny by the courts; hence, no need for her to be defending herself.
He said much as she has freedom of expression just like any other person, Banda was commenting on a delicate issue currently in court.
Said Nkhata: “It is within her right to issue a press statement, but it is in connection to some proceedings which are still before court.”
He added that Banda’s comments, just like Senzani’s claim, would be subjected to scrutiny by the public and the State. On the other hand, Nkhata said Senzani’s motivation for the statement would also be subjected to cross-examination by the defence.
“I don’t think it is a very smart way of trying to clear her name if that is what she is trying to do. But in any event, she can only formally respond once and if at all the State decides to formally charge her, but for now there are just suggestions that she might be implicated in the whole saga,” Nkhata said.
Malawi Law Society (MLS) secretary Khumbo Soko, speaking in his personal capacity, agreed with Nkhata that legally there was no problem with Banda issuing statements, but it was an ill-advised move which would not help her in the long run.
“It is a perilous strategy because should the prosecution decide to charge her, she will have put out so much information in the public domain. She might be setting the record straight as a strategy but she is speaking too much and it is not the best move she should be making right now,” he said.
Soko also clarified that her statements were, however, not bordering on contempt of court.
In response, Banda, through her press office, has defended the move, saying she was merely responding to allegations levelled against her on a public forum like the newspapers.
“Since the issue of Cashgate started, Joyce Banda’s ‘involvement’ has been speculation all along. She has not been officially approached by authorities,” Banda’s press officer Tusekele Mwanyongo said.
In her response to Senzani’s statement, Banda said it was a contradiction that if it were a Cabinet decision to steal money for PP only Senzani, who was PS for a short time, was arrested and convicted for Cashgate.
“Surely, Mrs. Senzani could have spoken to the Chief Secretary to confirm the same? Why did she not communicate directly with me to confirm if it was indeed true there was that directive? Since it was a Cabinet directive as she claims who did she give the money that she stole to?
“Does a signature of receipt exist? One also wonders why her minister, Mrs. Rachel Mazombwe Zulu’s name, has not featured throughout Mrs. Senzani’s trial and it is only coming up now,” Banda contested.
The Senzani witness statement is part of disclosures which the prosecution has made in the Republic vs Paul Mphwiyo and others case in which 19 people are accused of theft and laundering K2.4 billion (about $3.6million). n