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Government has said it will not be bound to incorporate into a Bill all recommendations by the Law Commission aimed at strengthening the Anti-Corruption Bureau (ACB) as expected by its leading bilateral donor, Britain.
Reacting to British High Commissioner Norman Ling’s remarks last Friday in Lilongwe, Attorney General Peter Fachi said on Tuesday government and Parliament will not act as a rubber stamp of Law Commission’s views.
“What the British High Commissioner is saying is tantamount to abolishing an elected government and Parliament, and instead giving legislative powers to the Law Commission. What the High Commissioner is expecting does not happen anywhere in the world,” said Fachi.
Fachi said the recommendations will be considered on merit, pointing out that no one should expect government to implement them wholesale.
“We could be poor, of course, but we do not deserve to be pushed around like that. What is the point of having a government and Parliament if the Law Commission can make laws in this country?” queried Fachi.
Speaking to newly trained ACB prosecutors and investigators at Malawi Institute of Management (MIM) in Lilongwe Friday, British High Commissioner Norman Ling noted that President Bakili Muluzi already made a commitment to support the amendments in his 2002 State of the Nation address.
“My government supports recommendations made by an eminent team of professionals under the Law Commission for amendments to the Corrupt Practices Act. We look forward to incorporation of all the Commission’s recommendations into a Bill,” said Ling.
A special review Law Commission chaired by High Court judge George Chimasula Phiri, among other things, recommended that the ACB should not seek the Director of Public Prosecutions (DPP)’s consent to prosecute.
Chimasula Phiri said the DPP already has powers to intervene and take over or discontinue prosecutions by the bureau [or any other prosecuting agency], saying the requirement for his consent was a duplication that serves no purpose.
The commission also recommended the enactment of a provision to allow the ACB to investigate public officials on how they acquire wealth. Phiri said if Parliament passes a Bill accrued from the recommendations, those who fail to account for their sudden wealth will be liable for prosecution.
The 10-member commission, among them the DPP, law commissioner Elton Singini, ACB deputy director Alex Nampota, economists, academicians and religious leaders also recommended that new offices be set up to address common corrupt practices in public bodies which are not properly or adequately covered under the existing act.
These, according to Phiri, include abuse and misuse of public office, use of undue influence on public officials, peddling and unexplained property public officials possess.
The commission also recommended that there should be appropriate provisions for tracing and confiscating proceeds of crime derived from corruption offences, including the return of any money that may be held in bank accounts.
According to Chimasula Phiri, the commission also recommended that some serious offences similar to corruption be shifted to the Corrupt Practices Act to avoid the risk of such offences being declared invalid by the courts.
He said the commission would also want the ACB to be empowered to arrest, without a court warrant where necessary. This, he said, would secure evidence or attendance of suspects before court.
The review also lobbies for the abolishment of mandatory sentence of five years imprisonment for core corruption offences, saying such a sentence is considered, because of its severity, to be a cause of unwarranted acquittals since courts tend to be reluctant to convict where they have no judicial discretion on sentencing.
Government selectively implemented recommendations by Law Commission on the a technical review of the constitution in 1998. Some were heavily modified while others were ignored, like one proposing that a winner in a presidential race should get over 50 percent of the total vote or two top contestants should compete in a rerun.
Notable of the recommendations that were modified government is section 65 of the constitution. The commission recommended that MPs who resign from their sponsoring party must seek fresh mandate from their constituents, while those who get dismissed must only lose their seats subject to a High Court confirmation.
But government, beside just resigning from a sponsoring party, added [in a bill presented to Parliament] as a reason for crossing the floor, joining another party, organisation or association with political objectives.
Also modified was a recommendation to reduce a quorum for transacting business in Parliament from two-thirds to half. Government proposed in its Bill that it should be slashed further to one-thirds. Parliament rejected the proposal, settling for the commission’s recommendation.
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