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. EASTHAMFollow and Subscribe Nyasa TV :