Malawi leadership of President Chakwera and his deputy Saulos Chilima
* I refuse to accept that our leadership’s failure to fight corruption is due to State Capture
Analysis by Kamudoni Nyasulu
I share the notion that some elements in our leadership, especially in the political leadership and accountability institutions, are under state capture or compromised but I also believe these elements are a small minority of our political, strategic and or technical leadership of the accountability institutions in: Presidency, Chakwera, Chikhosi, Janet Banda; Ministry of Justice, Mvalo, Matemba, Thabo Nyirenda, Kayuni; Anti-Corruption Bureau, Chizuma; Financial intelligence Authority, Priminta; Auditor General, Makiwa; Malawi Police Service, Kainja, Malawi Revenue Authority, Bizwick; Reserve Bank of Malawi, Banda, Kabango; or Public Procurement and Disposal of Asset Authority, Banda, Hausi, Mlewa, Chilapondwa.
I also believe that these leaders have the qualifications and mandatory competencies for the positions they hold, but that each has some and not all the requisite technical core competencies for dealing with fraud, corruption and embezzlement.
The fight against corruption requires aggregated technical competencies that are not reposed in any single person or institution namded.
I, therefore, share the understanding that the fight against corruption is not a fight for a single institution but requires collaborative and coordinated planning and implementation at all three levels: policy, strategy and execution.
* I refuse to accept that our political and institutional leadership has provided leadership required for the fight against corruption
Instead there has been concerted scapegoating, shifting of blame and shirking of responsibility.
This has been so since Auditor General Kamphasa released the 2011-2012 Audit Report in December 2014 showing that a loss of K122 billion was to be investigated (commonly reported as K92 billion) which was soon to be corroborated in May 2015 by the Auditor General’s Price Water House Coopers supported GOM-Cashbook Reconciliation revelation that K577 billion later reduced to K236 billion had been lost.
Yet around the same period Government reported to IMF on the Extended Credit Facility about the same K92 billion as domestic arrears which were then sucuritised through domestic borrowing.
There was a galore of payments through “promissory notes” with huge payments in fees to banks discounting the notes. Political leadership blames legislation and inefficient institutions for failures, extolling political will and support to accountability institutions while the common refrain from the institutions is often, low or delayed funding, poor staffing and other resource constraints.
In the last 18 months the political leadership has bragged increased funding and personnel to accountability institutions and a planned Financial Crimes Court. But accountability institutions have persisted to complain of delays in the judiciary; delay in establishment of the financial crimes court, delays in disbursement of funding, and interference.
Nothing in all this has demonstrated leadership, strategic direction, collaborative or coordinated planning and implementation. In fact, in 2015 the Government specifically scrapped the Action Plan of January 2014 developed to fight corruption, fraud and embezzlement before its full cycle, without evaluation.
To date it has not been replaced. Since January 2022 the country has in fact witnessed open polarization between institutions.
* Poor fight against corruption, fraud and embezzlement can only be due to the Leadership Being Clueless, Ego or Clueless Ego;
Because the leadership is aware of the corruption, fraud problem; has shown that it knows what needs to be done including improving public service delivery; and has consistently promised to deal with the scourge.
All major political parties (DPP, MCP, UDF and UTM) in their 2019 Manifestos had promised solutions to fraud and corruption; mainly independence of and improved funding or resources to accountability institutions, including establishment of a financial crimes tribunal. In his inauguration speech on 4 July 2020 the President specifically identified ‘clearing the rubble ’in the public service as a priority intervention.
In August 2020, the President and his Vice committed to doing things differently in developing Malawi at the opening of a Development Conference where the President said “Talk is cheap. Building a new Malawi is a task for our hands, not for our lips”.
In January 2021 Government adopted the MW2063 in which the President and his Vice committed to mastering “courage and bolster confidence, and begin to believe in our own ideas and homegrown solutions to community and national level problems” and that to control corruption “there shall be a shift in focus more towards how these institutions ‘function’ and less on the ‘form’ of having such institutions in place”.
Government on 14 February 2021 established the Public Systems Review Task Force to review (a) system allowances, (b) system procurement, (c) conditions of service and (d) restructuring of the public service.
A report was submitted on 21 May 2021. Hawa Ndilowe, and John Suzi Banda now Chair of the Public Procurement Authority were members of the Task Force.
During the launch of the Presidential Delivery Unit in October 2021 the President and his Vice unambiguously informed Malawians that the two are ultimately responsible for the performance and delivery of service of public institutions when President Chakwera described himself as “the driver of a minibus, Chilima as the mechanic and the MDAs as the conductors” to deliver to the Malawi people waiting in the village, the goods they promised.
* The leadership has a wealth of guidance material resource both at the strategic and implementation levels
Apart from providing the road map, MW2063 provides the priority areas for intervention, and in its Enabler and Sector Working Group structure, provides the platform for identification, consultation and prioritization of implementation actions making monitoring and evaluating progress easy.
This platform would be a driver for the National Anti-Corruption Strategy; the Democratic Governance Sector Strategy and the Strategic Plans of at least 8 core Accountability Institutions which have more than 3 institutional objectives and 3 delivery objectives common to all of them.
With these institutions’ budgets, donor support aligned and pooled to the identified priority sector actions performance and effective delivery would be optimised.
Using this platform, the resolutions of the National Anti-Corruption Conference 2017 with a possible 52-point measurement reference points; the Commonwealth Anti-Corruption Conference 2017 and the proposed National Anti-Corruption Conference July 2022 announced by the President would all feed into consultations and priority actions.
Yet, since 2011 the Economic and Democratic Governance Sector Working Group has been dysfunctional, despite several Government promises to revive it in 2014, 2017 and 2020 (including a commitment in the Vision 2063 and Budget Statement 2022-2023 for operationalisation of Pillar and Enabler Coordination Groups).
In the absence of donor support to the budget, this platform would make aid effectiveness (or lack of) visible or at least ascertainable.
* The leadership has been offered mountains of informal and formal advice since inauguration of the Presidency which has gone to waste
As early as the inauguration day, 4 July 2020 the Office of the President was presented with a concept on how to deal with the frauds and scams in the outstanding backlog of cases with an estimated value K3 trillion; which was later also submitted to the Ministry of Justice.
From the second half of 2020 to the first half of 2021 there were numerous pieces on how to deal with corruption, rule of law and ‘clearing the rubble’ discussed in the media by eminent scholars and writers like Professor Danwood Chirwa, Professor Garton Kamchedzera and Mapwiya Muulupule of the column ‘Talking Blues’.
There have been pastoral letters from the Catholic Church and the Church of Central African Presbytery. There have been letters from the Malawi Law Society and recently Academia in diaspora. There have been running commentaries from social media influencers like Danial M Chikoja, Mulotwa Mulotwa, Onjezani Kenani, Idriss Ali Nassah, or Joshua Chisa Mbele
* The leadership should draw on institutional memory; and experiences in the region
Cashgate broke in September 2013. Soon after the Secretary to the President and Cabinet, Hawa Ndilowe commissioned a study into its causes and possible response.
Government and development partners established a Steering Committee in the Office of the President and Cabinet with several sub-committees, followed by the adoption of an Action Plan in January 2014.
In April 2014 at the regular Principal Secretaries and Heads of Constitutional Bodies meeting a report on the study commissioned by the SPC was discussed and a response formulated.
Until after Parliamentary and Presidential Elections in May 2014 all action on Cashgate, Frauds Involving public funds and Public Finance Management were guided by the Action Plan and the Steering Committee which met regularly (at one time once a week).
The Action Plan had five result areas with short, medium and long term actions: Investigation and Prosecution with 13 actions; Auditing with 14 actions; Accounting with 24 actions; Administrative with 6 actions; and Reforms with 8 actions.
All three branches of Government participated. The Judiciary (Lilongwe District Registry Judge in Charge Chombo and the Chief Justice Nyirenda) and the Ministry of Justice (Minister Fahad Assani, Attorney General Anthony Kamanga, Solicitor General Janet Banda, and Director of Public Prosecutions Bruno Kalemba) were actively involved with the planning and administrative arrangements.
The Director of Public Prosecutions was responsible for the Investigation and Prosecution result area actions undertaken by four integrated teams comprising investigators and prosecutors from Ministry of Justice, Malawi Police, Anti-Corruption Bureau, Financial Intelligence Authority (and occasionally MRA, Auditor General and RBM) guided by a Technical Advisor Kamudoni Nyasulu, who was specially appointed prosecutor for fraud involving public funds.
Prosecutions started in earnest in January 2014, adjournments were for less than 14 days for accused persons that were in detention and less than 1 month for those on bail. Out of 27 cases 7 were completed by March 2015 (14 months).
There was no room for scapegoating, blame-shifting or shirking of responsibility in this response.
Apart from those from development partners, most of the members of the Steering Committee and the Sub-Committees are still alive and in Malawi, many of them still active in the public service; and should therefore be readily available to provide input when needed or asked.
The long process of state capture inquiry in South Africa, and now recommendations on the report of the Zondo Commission are an invaluable resource in designing action against fraud and corruption: especially in approaches to investigation and prosecution.
I hope the submission of the ACB report on 21 or 22 June 2022 will elicit better strategic actions.
* Kamudoni Nyasulu is former Director of Public Prosecution in Malawi from 1994-1999; a Senior Deputy Registrar of the High Court and Supreme Court of Appeal and a Senior Deputy Sheriff of Malawi from 1992-1994.
He is a Special Prosecutor at the Cashgate fraud scandal in Malawi and has been operating as a Law Consultant for the Malawi Government since 2013.
Nyasulu is also a former United Nations Prosecutor and served as Director of Rule of Law for the U.N. Mission in Liberia from 2005-2013 and as an International Prosecutor for the U.N. Mission in Kosovo 2001-2004.
He is a licenced Legal Practitioner and Certified Fraud Examiner and a Certified Court Administrator who excels through 40 years’ practice and experience.