The Malawi Law Society (MLS) has asked Attorney General (AG) Thabo Chakaka Nyirenda to tread carefully on the granting of 60-day amnesty to individuals and companies that defrauded or helped in defrauding the government, arguing that the move is not backed by any law.
MLS President Patrick Mpaka told The Daily Times Monday that the AG has failed to identify any legal basis, both in his statement issued on January 9 2022 and the press briefing he held in Lilongwe Monday.
“It is fair to say that, so far, the Hon AG has not been able to identify any legal basis both in the statement and at the conference for the amnesty decision. It is a risky path to take no matter how good the intentions,” Mpaka said.
He added that, in the case that the decision has no legal backing, it would be invalid.
“The country is held together by law that is the predictable standard to which we can all resort to at any time. If State actors easily depart from the script of the law, that is a recipe for chaotic lawlessness,” he said.
Mpaka urged the AG and senior government officials to consistently rely on the law as a basis for any official decision.
“The law is their best backing,” he said.
In a statement that the society released on December 2 2021, in regards to alleged corrupt practices by Zuneth Sattar, it highlighted that any powers or authority must be exercised with the fundamental legal principle in mind and within the strict parameters of the law applicable to every situation.
Meanwhile, the Anti-Corruption Bureau (ACB) has said it is reviewing the amnesty that the AG has given to people to surrender money they obtained corruptly.
According to a statement, which ACB spokesperson Egritta Ndala has signed, the bureau has received inquiries on the directive, adding the bureau would update the public on the decision it will make on the issue of amnesty.
Speaking at the press briefing in Lilongwe Monday, Chakaka Nyirenda and Director of Public Prosecutions (DPP) Steve Kayuni defended the decision by the former to grant amnesty to those that might have looted government resources.
The two believe the move was critical in ensuring that the government recovers looted resources with interest rather than convicting the offenders.
The two offices, however, said this would not stop any investigations being undertaken by the ACB.
Chakaka Nyirenda said he had the power derived from different laws including the Financial Crimes Act, adding that suspects that would not come forward within 60 days would be prosecuted.
He added that the office of the AG had supervisory power over the DPP while the DPP had supervisory power over the ACB “in that regard, any other investigation falls under the domain of DPP”.
He also stressed that the amnesty would not benefit suspects the State had overwhelming evidence against and those that are on the list such as Zuneith Sattar and Abdul Karim Batatawala.
Chakaka Nyirenda cited cases that have been dragging for years, including that involving former president Bakili Muluzi, which has taken over 15 years and, yet, the government had not recovered any funds.
“Corruption is done in secret; there will be two people. So, if nobody is coming forward with information, there will be evidence against that particular person,” he said.
He, however, said evidence brought forward would be analysed and, in some cases, evidence from one person might be used to prosecute about 100 people.
The AG said amnesty had been in use for many years under different terms such as giving a convict a sentence of community service other than imprisonment.
“Beneficiaries will be the ones that have shown genuine remorse and will be able to give us evidence which would lead us to trace other people that have committed crimes,” he said.
The AG also defended the cancellation of contracts that some companies had with the government, indicating that his decision was backed by the law.
“Every day, I receive letters from lawyers on behalf of their clients and I respond to that. I am a legal adviser to the government; also, do not forget that I am a legal practitioner for the government, a lawyer for the government.
“So, I write letters on behalf of the government the same way a lawyer would write a letter on behalf of his client. So that is what happened,” he said.
DPP Kayuni said the Criminal Procedure and Evidence Code provides for negotiations, bargaining processes as well as discontinuity in the offering of no evidence.
He said, after the process is done, the legal framework mandates the DPP to report to the Legal Affairs Committee of Parliament for transparency as to how such processes have been undertaken.
“At the end of the day, government coffers need resources that have been looted and one of the processes is this one [amnesty],” Kayuni said.
In a statement released Monday signed by ACB Principal Public Relations Officer Egrita Ndala the bureau indicated that while it was reviewing the AG’s decision to grant the 60-day amnesty in the context of the investigations it is conducting on allegations against Sattar, the bureau will proceed with the investigations.
“The paragraph of the press release seems to suggest that the Attorney General is granting 60-day amnesty to those who might have corruptly accumulated wealth through dealings with amongst others Zuneth Sattar,” reads the statement.
The AG made the amnesty declaration on January 9 2021, when he also terminated contracts linked to businessman Sattar.
Mathews Kasanda is a journalist who holds a Bachelor of Arts in Journalism from University of Malawi (The Polytechnic).
In 2015, Media Institute of Southern Africa awarded him the Best Print Media Education Journalist of the Year accolade.
He joined Times Group Newsroom in September 2019.