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MUTHARIKA’S PRESENCE ON ACB RADAR: IS ACB ACTING ON SOME INFLUENCE FROM THE PRESIDENT?

Yesterday, Friday 16th July 2021, the graft-bursting institution (the ACB), came out clear to say that it intends to interrogate the former president, Arthur Peter Mutharika, in a matter bordering on abuse of his Tax Personal Identification Number (TPIN) while he was in office.

This should ordinarily have been a cause for great excitement had it not been preceded by those pre-emptive sympathy-seeking rumours. I hold the opinion that the war against corruption should not be waged against a few select individuals who do not have political clout, rather it should be, as it ought to always be, the society waging war against all corrupt elements amidst it.

That said, I am not purporting that APM is, in fact, a criminal by virtue of his appearance on ABC’s radar. No. All factors considered, such an endeavour is an assignment fit for our learned men of the bench. I only aim to make a fair comment on the same and consequently spark a healthy debate, grounded in facts and reason over corruption-related issues in general.

As regards this last aspect, exercising my mind is this allegation purporting that the incumbent President has ordered the ACB director to arrest the former Head of State. Worse enough, those propagating the said rumour are shy in coming out with grounds why the President has allegedly ordered the arrest of his predecessor.

At their best, they are putting across some dull insinuations that purport to downgrade the President to a level of having attained political intolerance. They are insinuating that Mutharika’s press briefing, in which he branded the incumbent administration as a failure, has irritated the President and earned Mutharika a title of a witch for which to be hunted. The sickness of this insinuation may invite one into thinking that perhaps upon receiving prior notices from the ACB relating to the investigation, Mutharika organised the presser to create such a political standing that would fertilize such insinuations. As to why would Mutharika do exactly that, it will be shown in this entry.

Against this backdrop, I intend to examine this insinuation and establish whether the same can be said to have been grounded in facts and reason.

First, we need to understand that the ACB is a Constitutional organ and the office of the Director of ACB is a Constitutional office. Further, under this Constitutional framework, the ACB and its director are enjoined to work independent of any outside influence. By law, they have the power not only to reject, but also call for the prosecution of such influence. Not even the president, or those workings in his name, are exempt from this strict requirement of the law. The director is only required to proceed in a manner that the organisation itself deems appropriate in serving its goals of bringing to book particular criminal elements and eradicating corruption.

On the other hand, we have the office of the President, another Constitutional office. Unless someone convinces me that there was a Constitution amendment last night, it remains that the President is devoid of any power, derived from the Constitution, or any other law made in tandem with the same, to direct the operations of the ACB. Which stands to reason that the allegations flying around that the ACB Director has been ordered to arrest Mutharika have no sound legal or moral basis. They are just that: poorly-conceived allegations. If the president was to proceed on such a path, such an act would constitute a blatant violation of the supreme law of the land which he swore to defend.

But we fully understand climate that was leveraged to plant this rumour: The previous Presidents have been meddling in the business of the ACB. Remember what happened in 2005 when Gustave Kaliwo was the then ACB Director? In exercising his lawful powers under the Corrupt Practices Act, Kaliwo ordered the lawful arrest of former President Bakili Muluzi. Guess what? Kaliwo was suspended by an order of the then President, Peter wa Mutharika, only hours after the arrest.

Here is the interesting part; Kaliwo decided to exercise his independence and upon being convinced that there was evidence of corruption, he made a move that potentially was to score positive political points insofar as the administration’s drive to fight corruption was concerned. Instead of being praised for such a bold move, guess what happened? He was fired.

Some observers asserted that there was sense in the firing. After all, there was a budget session pending in parliament at the time and the Kaliwo’s move could only make an opposition bent on frustrating the administration to become even more determined in their sabotage attempts. These held that there was sense in sacrificing the pursuit of enforcing the anti-graft law at the altar of political expediency.

Thus, Kaliwo, frankly speaking, was fired for doing his job right. Not only did Bingu go against the spirit of the law, he also set a very bad precedent as regards the fight against corruption is concerned. He subjected the ACB to an unnecessary political pressure from the Executive. And the consequences of this anomaly are still haunting as to date. It is because of things like these that some quarters have the audacity of spewing ill-conceived allegations with hope of gaining public sympathy when none is deserved in such a moment.

What if the president did make such an order off record and we can’t no for sure since this was not made on record. To be fair to everyone, this is possible especially if the ACB Czar is not made of tough substance. But to also be fair to the president before taking such a stand, it’s only befitting that we examine the president’s character so as to judge his predisposition in this regard. It is also even more telling to examine the character of the incumbent ACB Director, Martha Chizuma, if she is that specie who would bend unprofessionalism.

At this juncture, it has to be kept in mind that Chakwera promised, and is actually living up to the promise of, the rule of law as one of the guiding principles of his administration. Put in other words, he is handling the State leadership mantle while respecting the spirit and letter of the law. That is, if such an allegation were indeed true, not only would he be violating the written law, but would also be going against his own word and practice so far. To which end the following question becomes hard to avoid: of what use then is a man who makes a promise in public and gravitates to go break it before the very public that bore witness in the making of the same? All I am saying here is that Chakwera has little to gain than he has to lose by poking his nose in the affairs of the ACB and this fact is well within his knowledge. On this account, I find the allegation that President Chakwera has dictated to the ACB to arrest Mutharika to be shallow in its conceptualisation and its bottom end rooted in malice as opposed to reason.

And talking about character, it is often said that a man’s character is best judged in moments of difficulty as compared to those of tranquillity. A few weeks ago, this nation was on the brink of an economic catastrophe courtesy of the fuel contract impasse between NOCMA and MERA. The administration was just a few weeks away from being embarrassed because of fuel shortages around the country. Normally, the prevailing strategic policy demands that NOCMA reserves about 60 million litters, enough fuel to cover uninterrupted consumption for a period of two months even without replenishment. To maintain this reserve capacity, NOCMA imports 50% of fuel demand after every 30 days while the other 50% is shared among private importers. The impasse between NOCMA and MERA lasted for over a month, entailing that NOCMA was unable to import through its contractors.

After exhausting all options on the table, the executive exercised its lawful authority by ensuring that importation of fuel to avert the impending fuel crisis was done. As soon as this was done, the ACB moved in on 8th June to suspend all processes relating to the fuel importation including this last-ditch measure by the administration. Contrary to what many would have expected to happen in this circumstance, the Executive decided to abide by the directive of the ACB. Now, if there was ever a moment the Executive would have been justified to interfere with the operations of ACB by defying its “reckless order” then this moment did fit the bill. But President Chakwera acted maturely in respecting ACB’s directive and considering other alternatives of solving the impasse. It fails in the imagination, therefore, that President Chakwera would now seek to interfere with the ACB.

Further, it has to be kept in mind that the powers of investigation, questioning and arresting conferred upon the ACB are not to be exercised arbitrarily. These, in essence, are administrative powers. There always has to be good cause for exercising them. All law enforcement agents are, by law, empowered to make an arrest where there is reasonable cause to believe that an offence has been committed. In the matter at hand, it is on record that APM’s TPIN (and name) was on numerous occasions used to smuggle cement and other various items into the country. And as we speak at the moment, a number of high-ranking officials in the former administration are already answering charges premised upon these facts. It is also rumoured that Mutharika’s step son and his mother (the former First Lady) are also connected to the abuse of his TPIN. These, one would now think, could be the reasons why Mutharika could be insinuating victimization or attempting to avert his questioning since his wife and ‘son’ are likely to be caught in the criminal cobweb. He has a family interest to protect.

Using any feasible interpretation, an interrogation, as announced and intended by the ACB, is not an arrest. An arrest would only occur after it is found, through the intended interrogation, that he broke the law himself, otherwise one does not get arrested on crimes he did not, himself, commit. Even if APM were to be arrested today, that would not entail the end of the matter. Per the strict requirements of our justice system, he would be at liberty to question the grounds of his arrest and most importantly, be well within his rights to defend himself either in person or through his lawyers against any other charges be preferred against him. Therefore, it smacks of poor comprehension of the law to assert and propound that APM should not be arrested on ANY ground, reasonable or not. This idea goes against basic common sense.

The fact that the suspect in question is a huge political figure does not, and cannot, in and of itself mean that his arrest or questioning by law enforcement agents is politically motivated. It’s a matter of letting the law run its due course. We need to know what happened. Matter of fact, this will not be the first time that for APM to be questioned by the ACB. And he has always denied culpability and maintained his innocence. What’s the fuss now? From the vantage of this scenario, we ought to know who was taking advantages of his privileges to plunder our taxes. These criminals cannot forever hide behind his name and stature to escape the process of the law.

I do not purport to say that Chakwera is a man without faults. If I were to say that I would be lying through the teeth. He has his own shortcomings but perpetrating arbitrariness in terms of rule of law, is not one of his weaknesses. As we can see, while the former Head of State interfered with the operations of ACB in a bid to further his political cause, the current President has done the exact opposite, by respecting the due process of the law and the resolutions of a Constitutional body – the ACB. This idea of being patient with ACB in a moment he should have been impatient with it, militates against the allegation that the current president has now decided to interfere with the operations of ACB by ordering the arrest of APM. It just doesn’t make or even buy sense.

In conclusion, when the facts of the matter are justly considered, it becomes apparent that this “APM-arrest-Presidential order allegation” is poorly conceived, rooted in malice and not reasonable. It is possibly aimed at exciting those mindless political goons who rely on the thinking of their masters to cause anarchy under the guise of protecting their leadership from political persecution. That said, these rumours should be ignored with the utmost disdain they deserve.

Authored By: Suji Santillo

Edited By: Innocent Marshall

Senior Editor
the authorSenior Editor