DETECTION, INVESTIGATION, PROSECUTION AND ADJUDICATION OF
HIGH-PROFILE CORRUPTION IN MALAWI
Fidelis K. Chinsakaso *I. INTRODUCTION
The criminal justice system in Malawi involves a number of institutions playing different roles. On the
one hand, there are institutions that are responsible for detection, investigation and prosecution of criminal
offences. On the other hand, there is the judiciary, which is responsible for trying and adjudication of thecases which have been investigated and recommended for prosecution. One of the criminal offences ofparticular concern is corruption. In Malawi, the specialized body to lead the fight against corruption is theAnti-Corruption Bureau (ACB). It has powers to investigate and prosecute cases of suspected corruption.
This institution was established in 1998 and derives its mandate from the Corrupt Practices Act (2004).
This paper analyses the criminal justice response to and the current situation of high-profile corruption,effective measures and practical challenges to detecting, investigating and prosecuting high-profile corruption,effective measures and practical challenges to collecting and analysing electronic data and effective measures
to overcome political interference and ensure the integrity of criminal justice authorities. All these factors
will be analysed with reference to Malawi.

II. THE CRIMINAL JUSTICE RESPONSE TO AND THE CURRENT SITUATION OF
HIGH-PROFILE CORRUPTION
A. Criminal Justice Response to High-Profile Corruption
Malawi is one of the developing countries in Africa where corruption is perceived to be high. It ranks 120
in the Corruption Perception Index of 2018. Corruption cases reported range from bribery involving small
amounts of money to abuse of public office involving large-scale public procurement and misappropriation offunds.
One of the high-profile corruption cases which the ACB started investigating in 2013 and is still prosecuting
is about misappropriation of public funds and abuse of public office by some senior as well as junior government
officials. The case involved about MK21 billion (Twenty-One Billion Malawi Kwacha), which is about USD26.8
million at the current exchange rate. It was an allegation that the Malawi Government was losing huge sumsof money through Integrated Financial Management Information System (IFMIS)1 in the form of suspicious
payments made to various companies that did not render any service to the Malawi Government.
The Malawi Government started making payments through IFMIS in 2005. For a payment to be processed,
there were dedicated officers who had rights to access IFMIS to generate, post and approve the payments.
This set up was in place at each government ministry, department or agency. In September 2013, some
Information and Communication Technology (ICT) personnel who were centrally managing the system
discovered that there were some deleted suspicious payments which were made to some private companies
that had not rendered any service to the Malawi Government. This discovery was reported to the ACB andinvestigations into the matter were instituted.
Three law enforcement agencies were involved in investigating and prosecuting the matter. These were＊

Senior Investigations Officer, Investigations, Anti-Corruption Bureau, Malawi.
According to Frank Mangwaya, who was the IFMIS Administrator and one of the witnesses in the case, IFMIS is acomputer-based system which the Malawi Government used to generate and make payments. It is an integration of different
components such as stock management, payments, procurement, revenue, human resource management and payroll among
others.
1

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the ACB, the Malawi Police Service and the Office of the Director of Public Prosecutions, but the ACB was
the lead institution. Investigations, which were supported by a forensic audit, revealed that these suspicious
payments were generated and made from four government ministries namely, the Ministry of Irrigation andWater Development, the Ministry of Local Government and Rural Development, the Ministry of Tourism,
Wildlife and Culture, and the Office of President and Cabinet. The case was complex and involved a lot of
people at different levels in the hierarchy of the ministries involved.
Electronic devices such as personal computers, laptops, tablets, routers, dongles, CDs/DVDs, external
drives, USB, flash memory cards, and cell phones/smartphones, among others, were seized and analysed.
However, the IFMIS system was still being used, and some of the suspects, who were not yet identified as
potential suspects at that time, were still using the system and had an opportunity to destroy some evidence.
The best practice was to immediately suspend all users of the system to ensure that the evidence was nottampered with, but the problem was that it would collapse operations of all government institutions as no
payment would be processed. However, this could be resolved by having an alternative or back-up payment
process which was already in place for use in case of IFMIS failure or in times such as these where there
was a need to completely shut down the system to preserve evidence.
Several people were arrested and some top-ranking government officials such as the Principal Secretaryin the Ministry of Tourism and Culture have already been prosecuted and convicted for various corruption
and other related offences such as theft, fraud and money laundering.
None of the people investigated and prosecuted in the above case has immunity from arrest, detention orprosecution. In Malawi, it is only the Head of State who has immunity from arrest, detention and prosecution.
He or she can only be tried once out of office. Members of Parliament (MPs) only have immunity from arrest,
for less serious offences, when parliament is in session.
Corruption cases in Malawi are tried by the usual Magistrate and High Courts which try any othercriminal offences. This poses serious challenges as some of the magistrates and High Court judges are notfully conversant with the Corrupt Practices Act that guides them in trying the corruption cases. It istherefore, recommended that Malawi should establish a special court to specifically handle corruption cases.
This would enhance speedy prosecution of corruption cases and secure more convictions in the long run.
B. The Current Situation of High-Profile Corruption
Apart from the case mentioned above, the Anti-Corruption Bureau currently has three other high-profile
cases in courts which are yet to be concluded. All the three cases involve large-scale procurement bygovernment agencies. One case is about procurement of 100,000 metric tonnes of maize from Zambia by oneof the state-owned companies. This procurement involves about MK15 billion (Fifteen Billion Malawi Kwacha),which is about USD19.1 million at the current exchange rate. The case was concluded in court but the ACB
has appealed against the judgment as the court dismissed it, and the appeal is yet to be heard. The secondcase is about procurement of food rations by the Malawi Police Service. This case involves about MK3 billion(Three Billion Malawi Kwacha), which is about USD3.8 million at the current exchange rate. The third caseis about misappropriation of government funds by the former President of Malawi, and it involves about
MK4 billion (Four Billion Malawi Kwacha), which is about USD5 million at the current exchange rate. Then
there is another case which is still under investigations. This case is about procurement of food rations by
the Malawi Police Service, and it involves about MK2 billion (Two Billion Malawi Kwacha), which is about
USD2.5 million at the current exchange rate.

III. EFFECTIVE MEASURES AND PRACTICAL CHALLENGES TO DETECTING,INVESTIGATING AND PROSECUTING HIGH-PROFILE CORRUPTION
A. Detection
Successful detection of high-profile corruption mainly depends on good mechanisms put in place to obtain
information of corruption allegations from various sources. In Malawi, people can report allegations ofcorruption by coming in person to the ACB, writing letters, making phone calls and sending facsimiles (faxes)
or e-mails. However, people feel encouraged to report when they feel that they will not be victimized forreporting suspected corruption in their society.

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Article 33 of the United Nations Convention Against Corruption (UNCAC) compels each state party toprovide for protection of reporting persons.2 In compliance with this Article and as a measure of encouraging
reporting, Section 51A of the Corrupt Practices Act of Malawi provides for protection of whistle-blowers andother informers by prosecuting those who victimize the whistle-blowers or any other informers. However, it
has always been a challenge to prosecute these people, especially when one is reporting against someone
who is senior to him/her. At the workplace, for instance, the superiors reported against may victimize thewhistle-blowers indirectly by trying to find other reasons against them which may lead to their dismissal orother administrative actions. It is therefore proposed that the country should look for alternative remedies
such as relocating the whistle-blowers to other countries with different identities once their identities havebeen known by the suspected persons. However, this requires adequate funds, which is a big problem in ourcountry.
After receiving the reports of alleged corruption, investigations commence. In the course of investigations,investigators may also discover other corruption-related offences such as tax offences, money-laundering,theft or fraud. Where necessary, the ACB shares this information with relevant national authorities such as
the Financial Intelligence Authority (FIA), the Malawi Revenue Authority (MRA) and the Malawi Police
Service, among other agencies. The ACB also involves the commercial banks and other financial institutions,especially when there is need to get bank statements for suspected individuals. Where the ACB feels it cansolely investigate these offences, it does so as provided for in Section 10(1) (e) of the Corrupt Practices Act.3
Where it feels other institutions such as the Malawi Police Service should also assist, the responsibility is also
shared with them. This is what happened in the case study involving loss of funds by the Malawi Government
referred to above.
B. Investigation and Prosecution
To successfully investigate and prosecute a case, it is important that witnesses and accomplices cooperatewith the criminal justice authorities. However, most of the witnesses and accomplices cooperate when they
feel that they are protected by law. Article 32 of UNCAC provides for protection of witnesses, experts andvictims.4 In accordance with this Article, Section 51(A) of the Corrupt Practices Act also provides for protectionof witnesses and experts by prosecuting those who victimize them for their testimony in court, as is the casewith whistle-blowers mentioned above. However, for fear of persecution from those whom they testified
against or their agents, some witnesses may choose to become hostile during court proceedings. For instance,
in a certain case, a traditional leader (Village Headman) who reported against as senior traditional leader towhom he reports (Group Village Headman) as being corrupt in distribution of subsidised farm inputs, became
hostile and disowned the witness statement which was recorded from him despite signing for it. The ACB
is now prosecuting this traditional leader for giving false information to the ACB.
During investigations, there are also some instances which require the use of special advanced techniquessuch as undercover operations, electronic surveillance or interception of communications. However, the ACB
does not have capacity to use such kind of investigative techniques. In addition, the constitutional right toprivacy does not allow interception of communication. With availability of funds, it is the wish of the ACB touse such special investigative techniques where necessary and within the prevailing laws.
Where the case is transnational, there is need for international cooperation and mutual legal assistance.
To facilitate this, Malawi is party to various international agreements, one of them being the Southern Africa
Development Community (SADC) Protocol on Mutual Legal Assistance in Criminal Matters. Where there isno such agreement, embassies of the two countries involved are engaged if the two countries have diplomaticties. In the case of the procurement of the 100,000 metric tonnes of maize from Zambia mentioned earlier,2

Article 33 of UNCAC states, “Each State Party shall consider incorporating into its domestic legal system appropriate
measures to provide protection against any unjustified treatment for any person who reports in good faith and reasonablegrounds to the competent authorities any facts concerning offences established in accordance with this Convention.”
3
Section 10(1) (e) states, “The functions of the Anti-Corruption Bureau shall be to investigate any offence under any written
law disclosed in the case of investigating any alleged or suspected corrupt practice or offence under this Act.”
4
Article 32 of UNCAC states, “Each State Party shall take appropriate measures in accordance with its domestic legal
system and within its means to provide effective protection from potential retaliation or intimidation for witnesses andexperts who give testimony concerning offences established in accordance with this Convention and, as appropriate, for theirrelatives and other persons close to them.”

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although mutual legal assistance was not obtained, the Police to Police cooperation was used to gather
intelligence with the view to procure mutual legal assistance as both Malawi and Zambia are parties to the
SADC Protocol on Mutual Legal Assistance in Criminal Matters.

IV. EFFECTIVE MEASURES AND PRACTICAL CHALLENGES TO COLLECTING
AND ANALYSING ELECTRONIC DATA
A. The Current Situation of Electronic Evidence
The type of electronic evidence observed in cases involving high-profile individuals varies from case tocase. In the case where the Malawi Government lost huge sums of money through suspicious payments tovarious companies, for instance, the electronic evidence gathered was the online payments generation andapprovals in the IFMIS, telephone communication between accomplices, recovered e-mail communication,
electronic financial transactions between accomplices and location of the accomplices using telephone service
providers.
To gather the above-mentioned electronic evidence, electronic devices seized in most cases include cell
phones/smartphone data, personal computers/laptops, tablets, routers, dongles, modems, CDs/DVDs,
wireless network cards, external drives, USB, flash memory cards and digital cameras, among others. In thecase study cited above, the electronic data that was collected by the ACB was analysed at the Malawi Police
Service as the ACB did not have forensic equipment at that time. However, this had challenges as there was
mistrust between the Police and the ACB on how the information was handled. Secondly, even the equipment
at the Malawi Police Service did not have the capacity to extract data from all the gadgets seized and toanalyse it. The best practice was to analyse the collected electronic data at the ACB as it would be handled
by selected few individuals who could be trusted and trained to handle such sensitive information.
B. Effective Measures and Practical Challenges to Collecting and Analysing Electronic Evidence
For any investigator to effectively carry out a search and seizure operation, collect electronic evidence
from a crime scene and analyse it, he/she has to be trained to do that task as electronic evidence can easilybe altered or destroyed if not properly handled.5
When one is employed as an investigator at the Anti-Corruption Bureau in Malawi, he/she undergoes anintensive training in investigative skills for a period of about eight weeks. During this period, investigators
are taught basic skills on how to conduct search and seizure operations, including at a crime scene where
electronic evidence may be collected. Such basic skills include how to handle a computer/laptop at a crime
scene when you find it switched on or off or how to handle a cell phone when seized from a potential witness
or suspect. The training also covers basic skills on how to analyse data obtained from such electronic devices.
The trainees are not however, trained on how to analyse complex electronic data which require some
software and equipment which is not readily available at the time of training.
In 2016, the ACB, with funding from Irish Aid, procured forensic equipment and established a forensic
laboratory at its head office in Lilongwe, the capital of the country. The forensic laboratory, which is referred
to as a Forensic Data Unit (FDU), is where all electronic data collected from all the investigators acrossMalawi is analysed. The forensic equipment procured is a Universal Forensic Extraction Device (UFED)
Touch 2 with its associated software, such as TD2, TD3, ENCASE and FTK. Two investigators have been
specifically trained in forensic investigation to run the FDU, alongside with two other ICT personnel. All theother investigators from all three regional offices of the ACB submit their collected electronic devices to the
FDU for analysis.
To ensure that there is effective collection of electronic evidence, all investigators are encouraged to beaccompanied by any of the two investigators or ICT officers trained in forensic investigations whenever they
are going for a search and seizure operation where electronic evidence is expected to be collected.
The FDU also serves other law enforcement agencies in the country, including the police, as theirsoftware licences have expired and they are unable to renew them. So far, the FDU has successfully analysedelectronic data for ten (10) different cases from within the ACB and five (5) cases brought by the Malawi
5

US Department of Homeland Security, Presentation on Managing Static Digital Evidence.

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Police Service. The most electronic devices brought for analysis are cell phones and computer/laptops.
The biggest challenge the ACB faces in running the FDU is renewing licences for its software as they
are very expensive. The institution also wishes to train more investigators in forensic investigations but isfailing to do so because the training is expensive as it has to be done outside the country, preferably in Kenya
or South Africa. It is therefore recommended that, with the little resources available, the ACB should
gradually train at least one or two investigators at each regional office to reduce dependency on the head
office whenever the regional offices would like to collect and analyse electronic evidence.

V. EFFECTIVE MEASURES TO OVERCOME POLITICAL INTERFERENCE AND
ENSURE THE INTEGRITY OF CRIMINAL JUSTICE AUTHORITIESAs indicated earlier, the Anti-Corruption Bureau (ACB) of Malawi is a Government Department, and it iscreated under Section 4 of the Corrupt Practices Act.6 Section 4(3), which provides for the independence of
the ACB.7 Much as this section provides for the independence of the ACB, some believe that there is, to someextent, political interference in the manner the ACB operates as the Director and the Deputy Director of theinstitution are appointed by the President of the country as provided for in Section 5 and 7 of this Act.8
Section 5(1) provides for the appointment of the Director, while Section 7(1) provides for the appointment of
the Deputy Director. Although the appointments of the two are subject to confirmation by the Public
Appointments Committee of Parliament, some believe that these provisions have potential to compromise
the independence of the ACB.
Additionally, Section 11(1) (a) of the Corrupt Practices Act also empowers the Director of the ACB toauthorize in writing any officer of the ACB to conduct an inquiry or investigation into alleged or suspected
offences under this Act. This implies that for any investigation to commence, the Director has to authorizethat investigation. He/she has the discretion to either authorize the investigation or not. After authorizationof investigation of some cases, there have been instances where the Director has ordered pending arrests ofsome high-profile political figures connected to the President, who is the appointing authority of the Director
and the Deputy Director of ACB. This constitutes an obstruction of justice offence, but there is no law
prohibiting the Director from doing such things. To overcome this challenge, it is recommended that the law
should be amended such that the Director of the ACB and his/her deputy should be recruited on merit
through interviews instead of being appointed by the President.
As already indicated, some cases are recommended for prosecution after investigations are completed.
The ACB has its own prosecutors to prosecute corruption and other related cases. However, it does not havepowers to prosecute without the direction of the Director of Public Prosecutions.9 Although the Corrupt
Practices Act has a caveat to the Director of Public Prosecution’s withholding consent, this has potential tocompromise the independence of the ACB in prosecuting corruption cases as the consent may sometimes
take unnecessarily long to be granted. This challenge can also be addressed by amending the law to allow
the ACB to prosecute corruption cases without getting consent from the Director of Public Prosecutions.
When the consent is granted and the matter goes to court, the cases are heard by either Magistrates orHigh Court judges, depending on the nature of the matter. Every case starts in a Magistrate Court, but some
may be committed to the High Court depending on the amounts of money involved and other factors.
Whether the matter is at a Magistrate Court or at the High Court, there may be political influence during
adjudication of some cases, especially when they involve high-profile individuals connected to senior
6

Section 4 of the Corrupt Practices Act states, “There is hereby a body to be known as the Anti-Corruption Bureau whichshall consist of the Director, the Deputy Director and such other officers of the Bureau, as may be appointed under Section 9.”
7
Section 4(3) of the Corrupt Practices Act states, “The Bureau shall exercise its functions and powers independent of thedirection or interference of any other person or authority.”
8
Section 5(1) of the Corrupt Practices Act states, “The President shall, on such terms and conditions as he thinks fit, appoint
the Director, and the appointment of any person as Director shall be subject to confirmation by the Public Appointments
Committee.”
9
Section 10(1) (f) of the Corrupt Practices Act states, “The functions of the Bureau shall be to, subject to the direction of the
Director of Public Prosecutions, prosecute any offence under this Act.”

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government or political party officials. This is so because, in Malawi, the head of the judiciary (chief justice),
Supreme Court and High Court judges are appointed by the president of the country. This challenge can bealleviated by removing presidential powers from the president to appoint the chief justice as well as the High
Court and Supreme Court judges as these have influence and control over the magistrates who may presideover some cases involving high-profile individuals. The chief justice and the judges have to be appointed
through promotion after attending interviews.
Since its establishment in 1998, the ACB has been regarded as an institution of high integrity. To ensure
integrity of the investigators and prosecutors as well as all its employees, the institution rigorously vets
candidates who succeed during interviews before being offered employment. However, there is no integrity
testing conducted on these prospective employees.
Besides the vetting process, the investigators and prosecutors, just like any other employee of the ACB,
are given a copy of the Code of Conduct and Standing Orders for the institution (referred to as Bureau
Standing Orders) on the first day of their employment. Every employee of the ACB also declares his/her
assets upon joining the institution and continues to do so at the beginning of every financial year.
To further ensure integrity of its employees, the ACB also offers a competitive remuneration package to
its employees including the investigators and prosecutors, though it is not among the highest paying
institutions in the country. The judges, on the other hand, have better remuneration packages as they havespecial conditions of service different from those of the ACB. It is therefore recommended that the ACB
should start conducting integrity tests on its employees and lobby the Malawi Government to provide more
funds to the institution to make it one of the highest paying employers in the country to strengthen the
integrity of its employees.

VI. CONCLUSION
Malawi, just like many countries across the world, faces the challenge of high-profile corruption. The AntiCorruption Bureau of Malawi detects, investigates and prosecutes such cases in the country’s courts of law.
However, adjudication of such cases may at times be affected by political influence as the country’s president
has powers to appoint the head of the judiciary and the head of the Anti-Corruption Bureau. Such challenges
may be addressed by removing the presidential powers of making these appointments. This will ensure
independence of the two institutions.

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