MALAWI: ANTI-CORRUPTION BUREAU MIRED IN DELAYS AND STAFFING PROBLEMS

C O N F I D E N T I A L SECTION 01 OF 02 LILONGWE 000336   SIPDIS   DEPT FOR AF/S – E. PELLETREAU  MCC FOR

Cable Date: 2008 June 8

SUBJECT: MALAWI: ANTI-CORRUPTION BUREAU MIRED IN DELAYS AND  STAFFING PROBLEMS   REF: 07 LILONGWE 824   LILONGWE 00000336  001.2 OF 002

Classified By: Political Officer John Letvin for Reason 1.4(d)

(C) Summary: The Anti-corruption Bureau (ACB) continues to  fail to meet targets for investigations and prosecutions,  resulting in only one conviction in the first quarter of the  year.  ACB Director Alex Nampota cited retention difficulties  due to inadequate pay and benefits compared to the private  sector as the major reason for missing targets.  Nampota also  said the government was increasingly attempting to close the  gap between the ACB and the civil service making high-stress  ACB jobs less appealing even to other government workers.  Nampota commented on the progress of several high-profile  corruption cases, including the cases against former  president Bakili Muluzi and former Minister of Finance Friday  Jumbe, citing defense tactics to challenge the  constitutionality of small parts of the investigations and  then allow the challenges to sit idle at the courts,  effectively stalling the cases.  Nampota stressed his top  priority was to free these cases from their bureaucratic and  legal impediments. End Summary.

ACB Missing Targets…

(SBU) The ACB continues to fail to meet quarterly targets  it set in conjunction with its two biggest budget supporters,  Britain’s Department for International Development (DFID) and  the government of Norway.  The number of investigations  started, the primary target, is set at 120 per quarter, but  the ACB was only able to start 69 investigations, despite  receiving 239 complaints.  This adds to a deficit of 194  uninvestigated complaints from the fourth quarter of 2007,  further increasing backlogs.  Only two cases were brought to  trials in the first quarter of 2008, of which one resulted in  a conviction.

And Unable to Retain Staff  ————————–

(SBU) At a June 10 meeting with foreign funding agencies,  Nampota cited the retention of lawyers and investigators as  the biggest obstacle to meeting targets and successfully  prosecuting cases.  The ACB has positions for six prosecutors  yet went through the entire quarter with only one lawyer in  the department.  Nampota commented that this lawyer was the  first lawyer in ACB history to complete his full employment  contract, but that he has declined to sign a new contract and  stay in his position past the end of June.  The ACB has hired  four new attorneys who will begin work by July 1, but still  has two open positions and Nampota feels it will be difficult  to retain the new lawyers.

(SBU) Nampota blamed inadequate pay and benefits for  attorneys and investigators compared to the private sector as  the main reason for poor retention.  Although the ACB was  originally set up outside the civil service so the  organization could offer higher pay packages to enable  recruitment and retention of top talent, Nampota said the  government increasingly is pushing the ACB towards the civil  service.  Nampota cited the recent 20% pay raise given to  civil servants while ACB staff salaries have remained flat  for over two years.  This closure of the pay gap, combined  with the increased scrutiny ACB staff receives, have made  staying at the Ministry of Justice, previously a source of  many attorneys for the ACB, more attractive.

High Profile Cases Stalled  ————————–

(C) Nampota also agreed to discuss several high profile  corruption cases including the case against former president  Muluzi and former Minister of Finance Friday Jumbe.  Nampota  said Muluzi is being investigated for depositing $10 million  USD of government funds into his personal account while he  was president.  According to Nampota, Muluzi’s lawyers have  successfully delayed the case by obtaining an ex-parte  injunction which suspended the case.  The injunction, issued  in 2005, is subject to a Constitutional Court adjudication of  the issue of whether the President of Malawi is a “public  office holder” within the meaning of the relevant financial  control statute.  If he is not, then he cannot be required to  explain what happened to assets.  While the former attorney  general successfully managed to vacate the injunction at the  High Court level, it was reinstated on Muluzi’a appeal to the  Supreme Court.  Malawi’s judicial system operates at the   speed of the parties, and Nampota noted that Muluzi’s lawyers  have not pressed for the ruling in the case they initiated.  On the other side, the ACB took no action due to the long  period without a director (reftel), thus stalling the case  for two years.  Nampota said he was personally working on  getting the case restarted and expected a ruling from the  Constitutional Court within two weeks.

(C) Nampota described similar troubles in the case of  Friday Jumbe who is under investigation for a 1999 maize  scandal while he was Director of Agricultural Development and  Marketing Corporation (ADMARC).  In the scandal, maize was  exported illegally, leading to large ADMARC revenue losses at  the same time that Jumbe constructed a $700,000 USD hotel in  Blantyre.  Jumbe’s lawyers took the case to the  Constitutional Court, arguing that Jumbe has a right to  silence and cannot be forced to incriminate himself.  As with  Muluzi’s case, once the court granted an injunction to stay  the underlying criminal case pending Jumbe’s arguments, his  lawyers stopped pursuing the ruling and without the ACB  asking for a speedy answer, the case has been left in limbo.  Nampota has also taken this case over himself, but did not  offer a timeframe within which he thought the case would  resume.  A second case against Jumbe for improper procurement  related to the disappearance of a $78000 USD trust fund is  also stalled due to Jumbe’s lawyers requests for production  of all/all budget documents produced by the Ministry during  the three years Jumbe was Minister of Finance, a logistical  request Nampota says the government cannot meet. Nampota also  cited large-scale corruption investigations against former  heads of the Electricity Supply Corporation of Malawi and the  now bankrupt/liquidated Shire Bus Lines that were similarly  stalled with legal challenges.

(C) While the lack of trained prosecutors and  investigators has undoubtedly handicapped the ACB, the lack  of leadership at the top for extended periods has played a  bigger part.  Funding from the government of Norway has been  repeatedly delayed because of the ACB’s inability to provide  audited financial reports.  The previous acting director, who  himself left in a scandal over receiving two government  paychecks while in the post, did little to move cases along.  Nampota has now been in the Director’s office for over six  months, but feels he is just now gaining momentum on these  long-outstanding, high-profile cases, and if forced to handle  all of these cases himself, the serial nature of his  attention will undoubtedly lead to even longer delays.  Perhaps even more disheartening are new accusations that  surfaced in Parliament on June 10, accusing ACB Director  Nampota of being part of a scheme with the former Minister of  Justice, Bazuka Mhango, that embezzled $300,000 USD in legal  fees from government in 2006 while Nampota was in private  practice.  If the accusations prove to have merit, the office  of ACB director, and by default the institution of the ACB,  will risk losing any budding effectiveness.  EASTHAM

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