- Just 15 of 69 looting cases active
- Of the 15, govt would only recover K7.2bn out of K24bn
Prosecution of cases in Malawi’s major financial scandal—Cashgate—is staggering, with only 15 of the 69 cases being actively pursued, representing just about 22 percent of the alleged crimes.
The low prosecution marks mean that recouping money from Cashgate—particularly the one involving K24 billion estimated to have been lost between April and September 2013—remain a tall order.
Only K220 million has so far been recovered in the six cases where the authorities have secured convictions whereas in the combined 15 active Cashgate cases and their corresponding missing millions, government envisages recovering only K7.2 billion from the loot, according to the list of the cases provided by the Director of Public Prosecutions’ (DPP) office.
That projected recovery outturn represents just 30 percent of the six months K24 billion loot.
The snail’s pace at which the cases are being heard due to various challenges means that it would also take years to finish prosecuting them—leaving billions of taxpayers’ money to fate.
The DPP and Anti-Corruption Bureau (ACB) are leading the prosecution of 69 people suspected to have links to the missing of K24 billion from government coffers between April and September 2013.
DPP Mary Kachale, in an e-mail response last week, confirmed that so far, the ACB has commenced 15 cases in court.
“Note that this does not necessarily mean that we are prosecuting 15 people since some cases have two or more accused persons,” said Kachale, adding that one of the cases has two suspects.
According to a case status report supplied by Kachale’s office, 53 cases have stalled for reasons that range from failure of one or two witnesses to appear before the court to nothing being substantial being done in other cases.
Kachale, however, said plenty of lessons, which would enable the country’s investigators to do better next time, have been learnt from the unprecedented large-scale fraud.
“Lessons are plenty. We will take it as an opportunity to do well in future and also to pin-point capacity building gaps. Our teams did their best considering the circumstances that they work in,” she said.
Of the 16 people actively in court, the DPP has secured convictions and jail terms of Mike Msungama, Victor Sithole and Wyson Dzinyemba Soko while the ACB has only secured imprisonment of Trezza Namathanga Senzani.
The prosecuting agencies have jointly secured conviction and sentencing of Maxwell Namata and Luke Kasamba.
Msungama got one and a half years imprisonment, Senzani three years, Sithole nine and a half years, Soko seven and a half years whereas Namata and Kasamba were jailed for eight and four and a half years respectively.
Kachale disclosed that government reposessed a Toyota Vitz motor vehicle valued at K7 million and returned to the owner in South Africa another vehicle, a Toyota Fortuner, discovered to have been stolen. The two vehicles were found with hard cash on the onset of Cashgate.
“So far, the total recovered is about K220 million with only K40 million from Soko outstanding on the principal sums stolen. The recovery rate on completed cases is 84 percent of the principal sums, mostly because nothing has so far been recovered from Wyson Soko,” she said.
Kachale said the slow progress of the cases would not be attributed to funding challenges. During the Mid-Year Budget Review early this year, some members of Parliament questioned a reduction of funding to the DPP’s office by K33 million from K495.7 million, arguing it would affect prosecution of Cashgate cases.
Lack of capacity
However, former DPP Ishmail Wadi told Nation on Sunday last week that lack of capacity in both prosecution and Judiciary is affecting the prosecution of the Cashgate cases.
Despite the galore of arrests that surfaced soon after the accidental revelation of conspiracy between businesspeople, government officials and politicians to defraud government, the cases involving large amounts of money are yet to begin.
The case involving two of the major Cashgate beneficiaries Osward Lutepo—suspected to have benefited K4 billion from the loot—and Stafford Mpoola, alleged to have received K1.4 billion, are yet to go through the full process of the court.
Wadi observed that the country’s agencies have no capacity in both expertise and numbers to prosecute the cases. He also noted that the defence lawyers are mostly to blame for the delay of the cases.
“The problem is that the expertise to prosecute in the DPP’s office might not be there. Due to [poor] conditions of service, government does not retain lawyers [and] this affects prosecution,” he said.
“A special programme could have been put in place to ensure that Judiciary and prosecution are given incentives to work hard. On the other hand, the court has to establish a criminal department,” he added.
Wadi blamed defence lawyers of employing tactics that lead to delaying of cases in the hope of securing continued freedom for their clients as the cases stall.
Malawi Law Society (MLS) president John Suzi-Banda said while they wished the Cashgate cases were handled expeditiously, they appreciate that there cannot be short cuts.
“We must note, however, the commitment that both the prosecuting authorities and the courts have demonstrated in dealing with these cases. And, while we appreciate the public anxiety in having these matters resolved as soon as possible, we need also to highlight that it is important that due process be followed,” said Suzi-Banda.
On recovering of the Cashgate money, Suzi-Banda said MLS expects that legal tools available to the State for tracing of all benefits derived from Cashgate crimes are robustly deployed.
However, on seemingly lean sentences that have irked some, Suzi-Banda said sentencing is a rather complex process that involves balancing of several and sometimes, competing considerations.
“Ultimately, each case is determined on its own facts. We would, accordingly, not be as quick to condemn the sentences that have been imposed so far,” he said.
Cases involving Caroline Savala, Angela Katengeza, Leonard Kalonga, Gerald Sibande and Lloyd Banda are nearing completion while those of Godfrey Dzanjalimodzi, Sibonele Thawani Chimphango, Martha Banda, Tiyembeza Lisimba, Esther M’bwana, Elita Moyo and Lawrence Masoo are awaiting appearance of one or two witnesses to testify before prosecution wraps up.
The DPP said preliminary matters in cases involving Raphael Kasambara, Pika Manondo, Osward Lutepo and Wapona Kita were settled, but the calling of witnesses was delayed because of the Judiciary support staff strike in October 2014.
The State have filed for plea in 13 cases and preliminary matters have been heard in some of the cases while in seven nothing substantial has been done and they are either at various stages of preparation or still under investigation.
The DPP and ACB have between them 27 cases that were registered with the courts, but which were not included in the Cashgate Common Pool.
“The ACB is fully and separately seized of these matters. Most of them are still under investigation by the ACB,” reads Kachale’s response.
Judiciary spokesperson Mlenga Mvula admitted the lack of capacity of the Judiciary to disperse justice not only surrounding Cashgate cases but the delivery of justice in general.
Mvula said currently the Judiciary has 34 positions for judges at Supreme and High Court level.
He said the Judiciary receives the average of K6 million a month for the operations of all courts in the counrty.