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.
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.
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?
Idiot
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.
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 faces.
I mean, the writer has authored nine books, man. How many of our so-called legal experts in this country have written even one book? Revealing indeed, as to where we are as a country. Is it not?
Walemba izi could be a beneficially of the scheme. Kapena akufuna msika
Why protecting him , let him step down in order to be investigated
Educated fool!! Fotseki zako this why Africa will remain isolated because of people like you
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.
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
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!
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!
That is why South Africa is riddled with corrupt stories by leaders. This is the kind lawyers who encourage corruption. Poor reasoning
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 be is…….who has paid him to write the comments.
Shame on all lawyers who defend wrong doers for a coin. Kalanga ine!!! when will lawyers stop using technicalities for gain. Shameful indeed.
This is a silly barrister! I cannot hire him to defend me. That is why lawyers are crooks and cannot be trusted. They twist facts. What the hell is this guy defending? You can see glaring corruption in this issue. No one says a party cannot receive donations from well-wishers!
But look at what is happening: Pioneer Investment is fiddling with the contract amount with the help of the police and what does this corrupt Indian do, he sends the money to Mutharika’s account. Obviously, they were colluding. How did this corrupt Indian know the account in the first place? And why pay to the account which the president is the sole signatory? Is this not an attempt to steal money? Where is the transparency here?
Eish this barrister !
Sad indeed, who asked him to comment
The link is there. The contract was fraudulent. Any money coming from a fraudster is questionable. One cant withdraw money without knowing its source. So the president knew the fraudulent source. Therefore even the president is answerable
Is this guy, going by his credentials and accolades, a lawyer or a writer?
Push has tried to defend the indefensible. When did thieves left trails which can easily be traced. We are dealing with seasoned thieves who know what they are doing. So the donation made by Karim is normal to Push. Technicalities are what learned people like Barristers will base their arguments on technicalities not the naked truth which flies in their faces. I speak as somebody who has never read law and never written a book worth talking about but I do not think the arguments of the Barrister are based on truth but technicalities of law and not truth. Let me finish by asking the Barrister as to when did Malawi become a law abiding nation. I totally disagree with you on this one. You can have your own opinion and I can also have mine. To me your arguments do not hold water.
Excellent analysis. That’s why Hon Karonga ran away after being forced to move a motion in parliament to remove presidential immunity. Who ever started the debate of removing the presidential immunity owes Malawians an explanation as to his relationship with Kalonga’s and Malunga’s ill conceived motions in parliament. Were these members of the movement simply carrying out their master’s instructions? One of the two Honaurables was also on the forefront in the maizegate hoax, could that be the underground movement’s propaganda.
Mwagwa nayo, you cannot start a political war without a party and a following. Teaming up with Atupele means that you have to be a runningmate because Atupele has an upper hand in this arrangement since he has a political party and a following.
Mr author get your facts right
If APM was not corrupt, he was supposed to be first one to question Karim where he got all k145m to give him because he knows Malawi economic status.
This money k145m was deposited into DPP account straight from Karim at once. You can verify this with the banks in Malawi.
K145m is not a small money to us impoverished Malawians.
Which credible organisation can have a sore signatory of their account, which one. This means even DPP did not know this account existed.
Atleast you acknowledge of corrupt practices that surrounded this contract.
APM is the president of Malawi, he is learned (so they say ), spent almost half of life in US. He knows what is happening. He has cabinet ministers who report to him what is happening in different sectors of Malawi. He benefited from this corruption straight.
This is smart thievery – We are poor in Malawi because of people like you who uses your misleading arguments to silence us.Shame.
CDH is better advised to apply for the dissolution and deregistration of this company used by THUGS to steal from Malawians.
Koma COMMEY WA ndi aku Malawi or ma barrister obwera? Poti masiku ano tikungolandira zilizonse-YAGWA MBALE NDI NDIWO
What a waste of time Mr best selling author of African Kings and Queens. We never heard of you. And what facts did you say you looked at to come up with your conclusion?
The first to state his case seems right until another comes forward to examine him. (Proverbs 18 v 17). You seem to be making sense because you are arguing with the paper.
The report is full of lies and you would have to be gullible to believe it.
EVIL WILL REMAIN EVIL EVEN IF IT IS DONE BY AN OLD KING AND THE TRUTH WILL REMAIN THE TRUTH EVEN IF IT CAN BE OPPRESSED. WHO IS THIS BARRISTER?? BARRISTERS ARE 100% THIEVES…..
Totally agree. The ACB report alleges without linking Mutharika. It even says K65 million was withdrawn from the DPP account from January to June and yet Karim deposited the money in April. How does ACB establish that all that money was from Karim when the DPP account has so many people depositing into the account.
Thawing zina kukhala Cheyenne ndibwino kusiyana kumatumiza nkhani zauchitsiru PA FB, tikuzuwa Kuti commey sunganene c zanzeru pamene Ulises busy kukoza mchere wako , Loma uzikonda dziko Lakota kupotsa ndrama