In this entry, Mallick Mnela wonders why the ACB has chosen to expose whistleblowers who are granted anonymity under the Corrupt Practices Act and chosen to protect the identity of two high profile individuals alleged to have been active participants in the attempted bribery of judges assigned to the presidential elections case. The ACB has argued its treading carefully to avoid defamation suits – is the truth of five judges not sufficient to warrant initiation of prosecution?
Sometime in November, High Court judges assigned to the Presidential Elections Case were allegedly approached with a proposition for a bribe by someone working in one of the three arms of the government (note: there are three arms: the Executive, Legislature and Judiciary).
The cryptic official version also suggests that an unnamed individual from the private sector reportedly chanced upon one of the judges and reassured that “some more funds” would be made available in the shortest period possible.
This startled the judge in question who immediately brought it to the attention of peers. As a unit, they referred the matter to their boss, the Chief Justice, Andrew Nyirenda.
Upon being briefed, the Chief Justice met Anti-Corruption Bureau (ACB) Director General Reyneck Matemba in person on 28th November, 2019 to brief him of the development, and, subsequent to that, wrote a formal letter which was sent to the Bureau on 8 December 2019.
As a follow up to the official complaint the Bureau recorded statements from all the judges – who unanimously corroborated the story of there being an offer to be paid to go soft on an unnamed party to the case.
So far – the two suspects are only being named in the highly confidential statements and privileged conversations. The ACB says it will exercise restraint and delay naming the suspects to the public.
I looked up the law and found that bribery is classified as a corrupt practice in Section 3 of the Corrupt Practices Act, which defines “corrupt practices” as: “(a) the offering, giving, receiving, obtaining, or soliciting of any advantage to influence the action of any public officer or any official or any other person in the discharge of their duties of that public officer, official or other person, b) influence peddling, c) the extortion of any advantage.”
In my encounter with the ACB DG during the Lilongwe press briefing, I reasoned, in the understanding of a layman in the law, that five judges entrusted to hear the case involving the country’s presidential elections should be men and a woman of high integrity. Their corroborated statements are, in my view, prima facie truth and honest statements until proven otherwise.
“You see, Mallick,” said Matemba, “It doesn’t work like that. I am required by the law to treat this information as a starting point. There is no evidence yet. The letter from the Chief Justice is not even evidence. The Chief Justice himself is not even a witness”.
But, I thought to myself, he did mention earlier that all the five judges had recorded statements – in which case the role of the Chief Justice as a witness does not even arise. Rather, I saw the Chief Justice in his capacity as the boss standing up for his subordinates in compliance with Section 36 of the Corrupt Practices Act which requires public officers to report attempts or acts of corruption.
The ACB, by Matemba’s own admission, obtained statements from all the judges. I then thought if the letter from the Chief Justice wasn’t sufficient as evidence, then the statements by the five judges was sufficient evidence. These are the people under oath to dispense justice without fear or favor.
From the little information we have had access to so far, there is no judge who is disputing the bribery allegation.
These are judges – people of high moral standing. There are no serious doubts regarding the truth of their highly corroborated statements.
Interestingly, Matemba admitted that the ACB does not want to get sued for defamation.
He submitted that the effect of publishing the names of the two bribery suspects, at this time, would place them at risk of being believed to have indeed committed the alleged crime in the absence of sufficient evidence.
He argued that proof of guilt is required to name them. He further said this goes beyond taking the statements from the judges. Does this imply the attempted bribery case will only proceed upon admission of guilt by the two unnamed suspects?
Of course, I am not a lawyer. But I know a thing or two about defamation. All of it boils down to the truth. I would rather hasten the due process fully aware that the credibility of my whistleblowers is top notch.
Generally, sensitive issues such as the presidential elections case demand that the public be informed on what is going on – and that the media be afforded the freedom to report on the same. Allowing room for speculation allows the innocent to be defamed thereby creating confusion with potential to escalate into chaos.
By extension, the office of the Director General of the ACB should also be seen to rise above the fear of the defamation sting.
In my uninformed reading of the law, I also noted the law (Section 22 of the Corrupt Practices Act) provided some immunity to officers of the Bureau. Actually, during the press briefing held in Lilongwe, Matemba, boastfully narrated how he once saved millions of taxpayers money having defended the Bureau against a lawsuit similar to one being avoided. I have no doubt in my mind that the ACB’s defense, supported by testimony of five judges of impeccable record will carry the day.
Section 22 of the Corrupt Practices Act reads: “No action or other proceedings shall lie against the Director, the Deputy Director or other officer of the Bureau in respect of any act or thing done or omitted to be done in good faith in the exercise of his duties under this Act.”
Although I was schooled by Matemba on due process, I still do not see how the naming of the two could come back to haunt the ACB granted the immunity provided by Section 22. Or am I wrong in my citation?
And besides, I do not see how five judges presiding over the presidential election case can have the motive to lie against the two unnamed souls.
I am certain they are fully aware of Section 109 of the Penal Code which reads: “Any person who — (a) conspires with any other person to accuse any person falsely of any crime or to do anything to obstruct, prevent, pervert, or defeat the course of justice.”
It is highly unlikely that the five judges would knowingly, and with intent to harm the two unnamed suspects, make false, frivolous or groundless allegations against them.
Section 36 of the Corrupt Practices Act makes it mandatory for public officers to report any alleged corrupt practice or else face the possibility of prosecution. The judges did comply with the law.
It is ironic that while the five judges, as whistleblowers granted the privilege of anonymity under Section 51 of the Corrupt Practices Act, were named despite the risk they face, the Bureau has opted to tread cautiously to protect the two “sacred cows”. All this, according to Matemba, for fear of defamation lawsuits on a matter!
I don’t want to believe that Malawi is slowly degenerating into a mafia state where some people have become too powerful. They cannot be named or touched in the wake of damning accusations of attempting to have things their way by subverting justice. Sadly, the system is hesitant for fear of lethal reaction from the suspects who continue to walk on God’s green earth while ACB officials and judicial officers entrusted with the mandate to investigate corruption and dispense justice are at the mercy of the army.
I just wonder how John Chilembwe would react to what we are currently encountering as a nation.