The future of corruption cases related to suspects’ dealings with Malawian-born Britain-based Zunneth Sattar is in a state of uncertainty as the Anti-Corruption Bureau (ACB) has its hands tied on the matters.
ACB is failing to move on the cases because of two reasons:
First, 10 months after the Bureau requested that it should obtain and use pieces of evidence from the National Crime Agency (NCA) of Britain, Attorney General (AG) Thabo Chakaka Nyirenda has not yet cleared the graft-buster.
It was the NCA that arrested Sattar in September last year.
On the other hand, the Supreme Court of Appeal is yet to decide on the case in which former Minister of Lands, Kezzie Msukwa, and Sattar’s agent Ashok Kumar Sreedharan, also known as Ashok Nair, are challenging a decision of the High Court in Lilongwe.
ACB’s spokesperson Egrita Ndala told Malawi News in a written response to our questionnaire on Thursday that should the AG’s office grant the request to use NCA evidence, the various judicial review matters that have been commenced against the Bureau would fall off.
Effectively, this would pave the way for the ACB to conduct further investigations and make arrests and prosecutions.
“…Whilst there have been other issues raised, the issue of receipt of the information from NCA by the Bureau has been the substantive issue in all judicial review applications.
“Moreover, as already stated, this matter awaits the Supreme Court of Appeal determination.
“In the event [that] the Supreme Court upholds Judge [Redson] Kapindu’s ruling, then we are fine.
“But if the Supreme Court decides against the High Court ruling and we still do not have the Mutual Legal Assistance request which we already submitted to the AG, then it will deal some blow to Sattar related cases,” she said.
Following their arrests in December 2021 and January 2022 respectively, Msukwa and Nair challenged the ACB’s action on the grounds that the Bureau directly received information from the NCA to form a basis for their arrest without involving the AG.
But in his judgement on May 30, 2022, Kapindu said the ACB can enter into formal or informal cooperation arrangements with such other agents or authorities outside Malawi in criminal proceedings as provided for by Section 5(1) of the Mutual Legal Assistance in Criminal Matters Act.
Nair and Msukwa are challenging Kapindu’s decision at the Supreme Court of Appeal.
So far, the court has not yet set a date for hearing and deciding on the substantive matter.
In June 2022, Justice of Appeal Frank Kapanda granted an order stopping the ACB from starting proceedings against Msukwa pending appeal.
Msukwa who was arrested on December 31, 2021 is being accused of allegedly obtaining bribes in form of K15 million, a Mercedes Benz and K4 million allegedly from Sattar through Nair, to intervene in a land-related matter in Area 46 in Lilongwe and Chipoka in Salima.
According to Ndala, at the time of its request early this year, the Bureau had already obtained information from the UK body.
She even said most of ACB’s investigations were based on that evidence.
She maintained that the Bureau acted within the law initially when it did not involve the office of the AG in obtaining the evidence and using it for its investigations.
According to Ndala, by sending the request to the AG, the ACB was only “trying to cover all the bases”.
“In the April request, we are asking the Attorney General to facilitate the obtaining of various pieces of evidence to be used in the prosecution of various cases arising from Sattar probe.
“The Bureau has never received any feedback from the AG. We also wrote a reminder in August. To our knowledge we have not received any feedback to the reminder either,” Ndala said.
She added: “Justice Kapindu ruled that based on section 5 of the Mutual Legal Assistance in Criminal Matters Act not only was the Bureau mandated to receive the information directly from another agency within Commonwealth without having to use the office of the AG but that the information received could also be used as evidence for purposes of prosecution.
“Accordingly, that is the current legal position on this matter on which the Bureau has been operating on to date.”
We asked AG Nyirenda why his office has not yet attended to ACB’s request 10 months on. He refused to discuss the matter with us.
“You are aware that the issue you are asking about involves cases that are alive in court; so we cannot be discussing it in the press,” he said.
Other Sattar related cases whose fate hangs on AG’s response to ACB request include that of Vice President Saulos Chilima, former Inspector General Police George Kainja, former Solicitor General Reyneck Matemba and former board Chairperson of the Public Procurement and Disposal of Assets Authority (PPDA) John Suzi Banda.
In an exclusive interview, chairperson for the Legal Affairs Committee of Parliament Peter Dimba lamented the lack of response from the AG to the Bureau’s request.
“We also would like to ask the Attorney General to consider authorising the request for mutual legal assistance that the ACB submitted in March, 2022.
“It will go a long way in enhancing the fight against graft,” Dimba said.