Law expert says Lutepo chooses ‘inappropriate forum for confessions’: Malawi cashgate

Malawi legal commentator Professor Danwood Chirwa  has said businessman and chief cashgate suspect Oswald Lutepo is not in contempt of court in granting an exclusive interview with the radio to comment on his cases under court consideration but that he is choosing inappropriate forums  -the media – for his confessions.

Lutepo gave an interview on Zodiak Broadcasting Station on Friday to accept wrong doing in the plunder of public resources and apologised to the nation.

He claimed that though he defrauded government, he was used as a “conduit” and implicated former president Joyce Banda for benefitting part of his stolen money.

Banda rebutted the claims, saying they are “malicious” and calculated to drag her in the mud of cashgate.

Commenting on the allegations made by Lutepo on the private broadcaster, Professor Chirwa, based at University of Cape Town, told Nyasa Times that Lutepo did not violate sub judice rule of not commenting on matters currently in court.

“The sub judice rule is not explicitly provided for in Malawi, more so that the Constitution guarantees freedom of expression and press freedom. It is in the public interest that issues like this should be discussed publicly, as long as such discussions do not undermine the proceedings in the courts. It is in fact a problem when politicians and public officials use the sub judice rule to avoid accountability,” the law scholar told Nyasa Times responding to a questionnaire.

Chirwa, however noted that Lutepo is “choosing inappropriate forums for his confessions,” saying they are inappropriate in the sense that they do not help his own case and the state’s cases against other cashgate accused persons.

“He has made a few statements so far that are inconsistent with each other and there is no guarantee he will not recant his current version in the near future. This prejudices his case because he has already portrayed himself as an unreliable and opportunistic,” said Chirwa.

“Unfortunately if the state would like to use him as a witness against other cashgate suspects, his unreliability will taint his evidence. Defence lawyers will confront him with all the statements he has made including a recording of the interviews he has given thus far, making it pretty easy to discredit his testimony,” the law professor said .

The current Attorney General Kalekeni Kaphale is on record trashing Lutepo in one of cashgate trials where he questioned the suspect’s integrity saying his actions and statement were not befitting that of a holder of a master of business administration and a graduate of University of Malawi.

Lutepo, who is answering charges of theft,  money laundering involving K1.2 billion as well as attempted murder and perjury, testified as state witness against now convicted and jailed former accounts assistant Victor Sithole when he told the Lilongwe Magistrate’s court that former Minister of Justice Ralph Kasambara forced him to sign court documents to claim that the k122 million cash found in Sithole’s possession belonged to him.

Kaphale  -then in private legal practice -called Lutepo “stupid” saying he could not be have succeeded to own businesses such as Naming’omba Tea Estate and Woget which are worth billions of kwacha with such type of “stupidity”

“Can you confirm to the court that the minister of justice was not your superior, or your business partner, cousin or your uncle? If lam to give you book and tell you to go to court and tell them it’s yours, would you do it?” Kaphale quizzed Lutepo.

Lutepo replied in the negative to all questions, insisting “I signed the documents because I was under pressure from Minister [Kasambara]”.

Kaphale questioned why Lutepo did not withdraw the claim for the K112 million to the court after Kasambara was fired as minister.  Lutepo claimed he was outside the country and had no access to his lawyer.

The Attorney General has since said every Malawian including Lutepo, has freedom of expression, but said he would not discuss the matter in the media opting for a judicial forum.

Professor Chirwa noted that the hard truth though is that the country is between a rock and a hard place in as far as financial malfeasance are concerned.

“Crimes of the magnitude like cashgate are not committed by a mere businessman like Lutepo without the involvement of major political players. These crimes will never stop unless the true architects, who are politicians, everyone knows that, are arrested, prosecuted and convicted,” argued Chirwa.

He states that the cashgate report paints a clear picture of a public financial system that was systematically and purposely overridden in order to milk it of public funds on a large scale.

“The scheme couldn’t have escaped the attention of the very top political superiors in the government at the time. At the very least, these can be accused of gross negligence in handling public funds which is itself a criminal offence,” Chirwa pointed out.

The law expert said because of the artificial distance political leaders create between the operatives and themselves in these schemes; it is only the operatives themselves who can help the nation with evidence.

“This is where Lutepo comes in. he is definitely a key man in this whole crime as [Paul] Mphwiyo is. If he is truly remorseful and is willing to assist the state, he has to speak to the right authorities, the investigating officers and prosecutors. Otherwise, his public statements do not help anyone, to the extent that his evidence might be easily dismissed in court for inconsistencies,” said Chirwa.

He continued: “If indeed he decides to follow the right channels, the authorities have to analyse his statements carefully and verify them against other independent and objective evidence, precisely because his evidence alone will not be enough. One also has to avoid the situation whereby he is deliberately making these statements knowing that he might cooperate with the state, get a lighter sentence, and then when it comes to giving testimony against other accused persons, his evidence is easily discredited. He will have achieved both aims, to get himself a lighter sentence and then get his partners in crimes off the hook. It’s a clever method crime lord Glen Agliotti of South Africa has used before.”

Lutepo has since stressed that he is going to give a detailed account on how individuals and companies benefited from the massive looting.

“I want to level the playing field so that everyone involved should face justice,” he said.

He plans to hold a public conference where he will reveal in detail the way they were defrauding government.

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