No wrong doing for Mutharika in Malawi police ‘rationgate’: Barrister looks at facts and the law

The political storm arising from the Malawi Anti-Corruption Bureau (ACB) investigation makes interesting reading. In August 2015 the owner of Pioneer Investments, Zameer Karim, got a deal from the Malawi Police Service to supply food rations to the value of 2.3 billion Malawian Kwacha.

Commey: Barrister looks at the facts and the law.

He is alleged to have colluded with the Director of Finance, Mr G Bottoman, to circumvent contract regulations and procedures to make sure the contract was awarded to Pioneer Investments. Everything was arranged via the kitchen door up to payment. Then it was time to eat.
An agreement was put in place between Bottoman and Karim months before the contract was advertised and adjudicated. Signatures were forged, and a loan was arranged between a bank CDH-Investment Bank, and Mr Karim to fund the delivery of the 500,000 package of rations. Bottoman, ultra vires (beyond his powers) gave a government guarantee on the bank deal. The contract was to be paid into Pioneer’s CDH account. CDH did not get their money and in 2017 dragged Pioneer to court. The payment had been diverted to another bank.
At one point, Pioneer which turned out to be the lowest bidder in a restricted bidding exercise, escalated the cost by 20% (to 2.8 billion kwacha) after winning the K2.3 billion kwacha contract, and in addition charged interest on late payment, which it was not entitled to, as it was not stipulated in the contract.
In a leaked document, the ACB made its factual findings and concluded on the law that Karim and Bottoman should be prosecuted for various crimes. It was a two-man tango. There is no recommended prosecution of any other official.
  • Where does the President feature in all this?
  • When the colossal sum, by Malawian standards was paid, on 11 April 2016, Pioneer, two days later, donated an amount of MK145 million kwacha (about 200 000 US Dollars) to the President’s Party, the ruling Democratic Progressive Party (DPP). This was paid into the Standard Bank account of the party, of which the President is the sole signatory. That account was opened in 2015. From January 2016 to October 2016, the President/Party made withdrawals from the account totalling MK 65 million kwacha. The party receives donations from other sources, and there is no evidence that the withdrawals were for private purposes for which his party would have called him into account.
  • Meanwhile, there is no law against political parties receiving donations from the public or private companies.
 The ACB does not say what law has been broken. It does not tell the link between the donation received by the DPP and the fishy contract. It does not tell the link between the President and either Bottoman, Zaheer or both.
 If it is alleged that apart from Bottoman, someone else from the President’s party or government influenced the deal, where is the evidence? And why is that person not recommended for prosecution? In any case, why would it be necessary for an official to forge signatures to make the deal work if there was government and party influence?
The strangest thing is the ACB leaked documents which vaguely states:
 “His Excellency Peter Mutharika benefited a total amount of MK 145,000,000 from proceedings of Pioneer Investment Fraud scheme from Malawi Government through DPP account at Standard Bank to which he is a sole signatory.”
How did they establish that among all the donations received that the President and /or the party knew that the money came from a fraud scheme? And why the President and not the party? It was wrong for the ACB to mention the President’s name in the document.
The only shocking thing is how the ACB somehow smears the President from allegations levelled against third parties. Apart from the fact that somehow a secret document was leaked by those in a position of trust, there is the dubious recommendation by the ACB that the President should not be prosecuted, ostensibly because of the immunity afforded to a sitting President by the constitution. Why drag the Presidents name into the mud, when there is no evidence presented to link him to the contract?
Apparently, none of the suspects were interviewed in connection with the not-so-secret investigations, which somehow ended up in the public domain.
Malawi has a good reputation for upholding the rule of law. But when those put in positions of great responsibility (such as the ACB) use those positions to damage reputations and circumvent the facts and the law, then it is only proper that those who embark on such an exercise, together with their accomplices face the full wrath of the law.
The alternative is a very slippery slope, where aspersions and insinuations masquerade as fact and law. That should never be allowed to happen in a democracy.
  • Pusch Commey is a Barrister of the High Court of South Africa,* Award-winning writer and associate editor of New African Magazine since 1999. He is based in Johannesburg South Africa. He is the author of 9 books including the best-selling 100 great African kings and queens, and Tofi’s Fire Dance. He is also the CEO of the South African based Real African Publishers, and the founder of the Real African Writers series.
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Panganani
Guest

The KANYENDA/MWAKHWAWAGATE SCANDAL clearly unearths deep corruption within the DPP and the Judiciary. MALAWI WATHU ANASALA UJA WATHERATU.MPAKANA BRIBING JUDGES TO WIN CASES?CAN THIS FOOL CALLED COMMEY BE TRUSTED.THIS IS HOW CROOKED DPP IS IN THAT IT HAS EVEN LOOPED IN LAWYERS WHICH ARE SUPPORTED TO BRING ABOUT SANITY.TITHAWIRE KUTI?

Chidyaonga
Guest
Chidyaonga

Idiot

Toby
Guest
Toby

One stupid lawyer defending a crooked lawyer(APM). Another crooked lawyer is David Kanyenda DPP Dep Director of legal affairs. Shysters. The lot of them.

Mwananyanian
Guest
Mwananyanian

So now, can any of our so-called legal experts in Malawi, counter this argument based on legal facts like the writer has done here? Some people will despise the analysis because the writer is not in Malawi. Nonsense. Any work can be done remotely and competently. (CSOs: I am not asking you to comment. You are NOT qualified.) Sure, the final arbiter would have to be a Court. But, at this point, opinion from “educated” individuals should be the only ones that count. Not from just anybody, including those speaking and commenting just because they have a hole in their… Read more »

Kada
Guest
Kada

Walemba izi could be a beneficially of the scheme. Kapena akufuna msika

Muswahili Mambo Sana
Guest
Muswahili Mambo Sana

Why protecting him , let him step down in order to be investigated

Gwemula
Guest
Gwemula

Educated fool!! Fotseki zako this why Africa will remain isolated because of people like you

Chisyano
Guest
Chisyano

Nonsense. Firstly, There are no BARRISTERS in South Africa. Only Attorneys or Advocates. Secondly, South Africa uses Roman Dutch Law which is very different to the common law system of Malawi. Thirdly, the ACB have not laid charges yet so it is impossible to offer an opinion. I would never use this dude…. I would hang! Comes across more like a DPP apologist. Sad.

Cognitive DIssonance Theory
Guest
Cognitive DIssonance Theory

This one is more of a journalist than a barrister, there isn’t much about him online about his work as a barrister apart from the bio he has written himself

James Mwale
Guest
James Mwale

You are welcome to Google search him.

My Google search of his name returns 58,300 results. This man is an authority! Respect to him.

You are a useless piece of nonsense without qualifications – that is why you are criticising him. You have no respect for intellectual achievements. Sies!

James Mwale
Guest
James Mwale

He may have used the title to make it clear for the international community. he was writing the article in response to a matter of international interest.

The article is not a court argument, but a simple analysis of the ACB document to state that based on Law and FACT, APM is not guilty. The legal systems only apply when you are dealing with the technicalities of the case.

FACT is FACT, irrespective of where you are. The ACB NEVER proved where APM was wrong.
Malawian law does not state that you are GUILTY until proven innocent. It doesn’t!

Chimzimu Chonyasa
Guest

That is why South Africa is riddled with corrupt stories by leaders. This is the kind lawyers who encourage corruption. Poor reasoning

#DzukaniAmalawi
Guest
#DzukaniAmalawi

When the integrity of the highest is questioned by the public then the right tho g to do is to appoint an independent Commission of Enquiry to test the evidence brought to it. The enquiry should be made public so that there’s no doo t to its independence. Barrister Pusch Commey might just have been bought by DPP to say and write in favour of Peter Mutharika. I do t understand why a man of purported stature would comment on a high profile case without being paid…..ordinarily they would charge TOP dollar per hour just for consultation. The question may… Read more »

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