Cashgaters can become public trustees
University of Malawi law professor Garton Kamchedzera has said Malawi can recover the money that it lost through public plunder called Cashgate by making those accused to become public trustees under existing guiding laws on Trusts.
Kamchedzera who made the remarks during a public lecture organised by the Malawi Law Society (MLS) in Blantyre on Friday explained that one of the ways that would be used to recover the stolen property is through what is known as Constructive Trust.
“This Trust is not expressly created but it’s just situational [arrangement] whereby if somebody who was in a position of trust has abused money or resources or position or power and they get benefit, then the law can declare them trustees,” he said.
Kamchedzera whose lecture was solely on trusts said all the benefits that have been accrued to the suspects are going to be recovered through such a trust.
“In the same way if somebody steals and uses that money and goes and becomes rich, apart from the criminal law which is what we are doing with the Cashgate, the person from whom that person stole can actually move to declare that person to become a trustee and can claim all that he took and so this would be a Constructive Trust,” he explained.
Malawi Government recently said that it has managed to recover K86 million from the K24 billion looted public funds, 18 months after exposure of the massive theft in government, representing 0.3 percent of the stolen money.
Judiciary spokesperson Mulenga Mvula said this has only come from three convicts.
The three are former principal secretary of Tourism Tressa Senzani, who paid back K62 million and Maxwell Namata and Luke Kasamba who collectively paid back K24 million.
In an effort to maximise the funds recovering efforts, other quarters suggested the use of plea bargains, but the country is yet to set guidelines to regulate bargaining.
In an interview after the lecture, Kamchedzera bemoaned the nation’s ignorance on issues related to trusts.
He said trusts give beneficiaries, like the people of Malawi when it comes to public trusts, to make a representative action, where one person can demand accountability from the trustees as a representative of Malawians.
He said Malawians are not asking hard questions with so many public trusts now like the Press Trust and the National Initiative for Civic Education (Nice) Trust.
“Government has resorted to forming so many trusts; the people that are in power seemed to be forming trusts now and again, even first ladies are forming trusts,” he said.
Another legal mind, a law doctor Chikosa Silungwe, delivered a lecture on ‘Making Wills under the Laws of Malawi’ where he encouraged the people to write wills while they can.
“In simple case, a Will is document that contains your wishes regarding the distribution of your assets when you are dead,” Silungwe said, adding that this is also a legal declaration which nominates persons to manage your assets and contains instructions on the transfer of such assets to named beneficiaries upon your death.
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