Advocate Pusch Commey looks at the facts and the law following accusations that President Peter Mutharika received a kickback from a contract to supply food to the police.
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 kwach) 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 kwach (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 state:
“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 an Advocate 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.