CounterJab: Malawi condones graft; weak Cashgate sentence par for the course

There have been several arrests of prominent individuals over the theft of millions of dollars from the Malawi Treasury in 2013. Among those taken into custody is the country’s former budget director Paul Mphwiyo who has since been charged with theft and money laundering. Since last year, at least 70 people have been arrested in connection with the biggest financial scandal on record in Malawi.

The shooting of Mphwiyo last year as he drove into his residence in Malawi’s capital, Lilongwe, exposed the scandal dubbed Cashgate. A forensic inspection of government books by a United Kingdom auditing firm, paid for by Malawi’s main bilateral aid giver Britain, revealed that the government doled out $30 million — about 1 percent of the annual Gross Domestic Product of Malawi whose development budget is supported by donors – to individuals and entities for services they did not provide.

When Mphwiyo was shot, the office of President Joyce Banda elucidated that it was a “planned and targeted attack aimed at silencing him.” According to family and friends, Mphwiyo had told them that he had been receiving death threats because he had closed loopholes used to siphon funds from the Treasury.

But Mphwiyo, a 37-year-old public servant who owns a mansion in an exclusive neighborhood, has not been without controversy himself. Questions about his lavish lifestyle have been at the center of his credibility. In fact, CounterJab was floored by Mphwiyo’s arrogance when he appeared before a Public Accounts Committee of Parliament (PAC) hearing to shed more light on what he knew of the systematic theft of public money. Here was a guy who thought it was out of jealousy and envy for anyone to raise questions about his fancy way of living. But how many 37-year-old public employees can afford his opulent way of life?

As the gun-shot survivor demolished PAC, its dumbfounded members sat and watched. When he was finished, Mphwiyo brushed off his shoulders and left.

It remains to be seen whether the case against Mphwiyo and other Cashgate suspects will be prosecuted successfully. Even after getting convictions, you still would be setting yourself up for disappointment to expect punishment that would deter others from committing similar crimes. And this, unfortunately, is not an exaggeration.

A quick look at one Cashgate case: Malawi has so far dispensed justice in only one case but the performance of the prosecution in trying former Principal Secretary of Tourism Treza Senzani, who admitted to stealing $150,000 from the government, has not inspired CounterJab.

Senzani faced five years in jail but got three yet she has the gall to think the sentence was too harsh and intends to appeal the ruling. It is of course her right to do so but it provides us a window into the kind of justice system that exists in Malawi.

During sentencing, Judge Ivy Kamanga admonished the prosecution: “With respect to the State Prosecutorial discretion, they are well conversant with simple theft and not by the public servant. They gave the impression they never intended to punish her with a severe punishment when a serious charge was available.”

Wow that must have hurt!

The prosecution dropped the ball on this one big time but that does not let Kamanga completely off the hook. While the prosecution tied her hands, Malawi has many cases where those who committed less serious offences prayed to the court for mercy in vain. They were given harsh sentences when compared to what Kamanga gave Senzani.

In the past, yours truly has discussed the need to try cases like these by jury and not judge.

In a jury trial, a suspect must prove his or her innocence to a jury made up members of the community. The jury decides a case based on how persuasive each side presented its case which is a minus to opponents of the jury system since it appears more like emotions influencing the jury’s final decision. Opponents want a trial by judge who acts as a fact finder and decider on matters of law and procedure.

But the other advantage of the jury system is that the suspect must convince many and not just one, a judge, who could be easily manipulated to decide a case in a certain way. When delivering justice, what people want is a system free of partiality; a system that will protect those who need protection the most.

It is not as though Malawians are oblivious to the damage Cashgate has caused. Malawi is reeling from donors’ suspension of $150 million in aid to the country. The poor, who largely depend on public services such as health, are suffering as a result. But who will standup for them when the justice system bends backwards to accommodate those causing pain?

Currently, our justice system favours the haves who can screw the have-nots with impunity knowing they can get away with it. The system is soft on white collar crime yet tough on petty crime. Regular people should realize that the system is rigged against them and must rise up. Without a strong groundswell of condemnation of this system, Malawians are greatly mistaken if they think they will wake up one day and find their government treating white collar crime seriously.

• The author isformer founding editor of Maravi Post who is now a columnist on Nyasa Times under ‘Countejab’

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