Toothless assets law

Eight years after becoming law, the Public Officers (Declaration of Assets, Liabilities and Business Interests) Act remains a mere scarecrow with no punitive action taken against lawbreakers.

Since it was enacted in 2014, Cabinet ministers and members of Parliament (MPs)—some of the public officers who are supposed to declare their assets—have repeatedly contravened the law but nothing further has happened to them.

In interviews this week, the Attorney General (AG), Malawi Law Society (MLS) and other stakeholders said unless the Office of the Director of Public Officers’ Declarations (Odpod) is given teeth to bite this annual exercise will simply remain a repetitive, trivial but costly process.

In the 2016/17 fiscal year four Cabinet ministers and four MPs failed to declare their assets despite repeated pleas by the Odpod for adherence.

The ministers were Goodall Gondwe, George Chaponda, Joseph Mwanamvekha and Grace Chiumia while the MPs were Christopher Mzomera Ngwira, Willard Gwengwe, Henry Mpofu Shaba and Davis Kadzinja.

Our sister paper The Nation first published the names of the non-compliant Cabinet ministers and MPs on September 3 2016. On the former Cabinet ministers, the then Odpod director Christopher Tukula said he would write the then president Peter Mutharika, who was the appointing authority, recommending their dismissal.

In 2018, Tukula also attempted to move the then speaker of Parliament Richard Msowoya to declare the seats of the errant MPs vacant, but the move did not materialise after Msowoya indicated that he would seek legal advice. 

Under Section 18(1) of the assets law as read with Section 63(i)(e) of the country’s Constitution, the director has such powers.

According to Standing Order 207(4), the Speaker receives a petition to declare a seat vacant after which he or she serves notice to the concerned MPs to respond to the allegations.

However, this procedure has only been put into practice in reference to evoking Section 65 of the Constitution relating to crossing the floor.

According to the law, failure to declare assets is a criminal offence punishable by two years imprisonment. Offenders are also liable to dismissal from public office, disqualification from holding any public office and, in case of elected officers, their seats declared vacant and banned from participation in subsequent elections.

Under the current regime, how the Speaker of Parliament Catherine Gotani Hara handles the 11 MPs, who failed to declare their assets within 90 days after assuming their offices will be in the spotlight.

The legislators, whose names are yet to be made public, were discovered to have defaulted during the financial year 2019/2020 after the Odpod referred their names to the Parliamentary Monitoring Committee (PMC) for inquiry.

The list of the noncompliant legislators which Weekend Nation has seen has five independent, three from the Democratic Progressive Party (DPP), two from Malawi Congress Party (MCP) and one from the UTM Party. 

The role of the PMC is drawn from Section 213 (4) of the Constitution, as read with Section 13 (2) (b) (c) of the Public Officers (Declaration of Assets, Liabilities and Business Interests) Act.

The committee comprises three parliamentary committees of Public Appointments, Legal Affairs as well as Budget and Finance and serves all listed public officers regardless of the branch of government they belong to.

PMC sent its findings and recommendations to Odpod director Michael Chiusiwa seven months ago for action.

Odpod public relations officer, Tiyamike Phiri, in a written response, defended her office saying as the directorate they had been recommending to authorities dismissals of some public officers who contravened the law before.

“However, our mandate as per the current scheme of the law ends at making recommendations to relevant authorities to dismiss or fire those that have failed to file declarations without reasonable excuse. We do not have prosecutorial powers,” she said.

On the list of the 11 MPs, Phiri said the processing of the report from PMC has been finalized and a meeting with the committee was being arranged but it has  delayed because the directorate usually meets the committee when Parliament is meeting in a plenary. We are now discussing with Parliament secretariat to schedule the said meeting during the early days of the current meeting of Parliament,” said Phiri.

In an interview last Wednesday PMC chairperson Joyce Chitsulo told Weekend Nation the Odpod director was well placed to explain why he was taking long.

She said: “We left everything in the hands of the director after we concluded our part. So he should be in a position to explain the delay. We are also equally waiting to hear from him.”

Asked who has the powers to push him to act, Chitsulo said: “We have a cut-off point. If we push him it will be like we are imposing on him what to do.”

Those who are supposed to declare assets annually, as part of accountability demanded from their positions, include elected officials, senior public service officers and other officers from government ministries, departments and agencies.

In an earlier interview with Weekend Nation, Chiusiwa said generally, there was an improvement in quality and efficiency in declaring assets, not only from Cabinet ministers and MPs but all listed public officers due to the critical role the PMC has played both in and outside Parliament in educating, conscientising, encouraging and mobilising listed public officers at different levels to declare.

 MLS pushes for sharpening of law

In an interview, AG Thabo Chakaka Nyirenda said the law was good and put in place with helpful objectives but there is “need to rethink enforcement.”

“ACB [Anti-Corruption Bureau] ought to use it to track possession of unexplained wealth. The Office of the Declaration of Assets does a tremendous job… The law enforcement institutions must do their work,” he said. 

The Malawi Law Society (MLS) honorary secretary Chrispin Ngunde said in an interview the Act is vague as such there is need for the regulations under the Act to clearly stipulate who should exercise what powers.

“For example, Section 19 of the Act provides for disqualification from public office and reference for investigating public officers who fail to disclose their assets or who provide inaccurate information. However, it is not clear as to who should exercise this power and what procedure is to be followed,” he said. 

Ngunde also suggested that instead of just reporting to the Director of Public Prosecutions (DPP), the police or ACB any evidence or reasonable suspicion of criminal activity by a listed public officer as stipulated under Section 11(2)(j) of the Act, the Odpod also needs to have prosecutorial powers.

“We suggest that the law should be amended and the Odpod should be submitting copies of verified declarations to the ACB, the DPP, the police and FIA [Financial Intelligence Authority] for scrutiny regardless of whether there is reasonable suspicion of criminal activity or not. These institutions have capacity to investigate and prosecute.” 

Commenting on the issue, human rights and governance analyst Undule Mwakasungula said compliance to declaration of assets is very important as it complements the fight against corruption. 

“We have seen previously political leadership protecting and shielding culprits hence making it very difficult for culprits to be penalised. So, with political interference, it is very difficult to enforce the law.”

He said there was need to review the Act and ensure the Odpod takes action more independently.

On his part, political scientist Ernest Thindwa observed that majority of culprits are politicians who wield so much influence such that enforcement bureaucrats are rendered incapable as they seek to protect their jobs and play it safe.

“Secondly, the calibre of the enforcing bureaucrats, most of whom don’t have the courage to do their job especially when it involves influential politicians.

“Thirdly, some of the culprits are enforcing bureaucrats themselves who fear resolute enforcement of legislation will expose them,” he said.

After several false starts dating back to 1999 to make senior public officers declare their assets as part of accountability,  in October 2013 a bill, the Public Officers (Declaration of Assets, Liabilities and Business Interests) Act, was tabled in Parliament and passed. It was followed a year later by the setting up of a fully-fledged office.

Under Section 18(1) of the assets law as read with Section 63(i)(e) of the country’s Constitution, the director has powers to move the Speaker to punish errant officers. For MPs, this includes declaring seats of errant officers vacant.

According to Standing Order 207(4) the Speaker receives a petition to declare a seat vacant after which he serves notice to the concerned MPs to respond to the allegations.

However, this procedure has only been put into practice in reference to evoking Section 65 of the Constitution relating to crossing the floor.