Malawi Law Society (MLS) has proposed corruption proofing of legislative enactments as one of the mechanism to deal with corruption before it happens.

During the 2023 MLS annual general meeting and conference in Mangochi from March 23 to 26 under the theme ‘Beyond rhetoric and impunity: Law, governance and economic transformation’, the society said the legislative enactments could supplement investigations and prosecutions by designated State agencies.

In its communiqué dated March 31 2023, the meeting also questioned the appointment of judges into Executive positions, arguing that poses a potential conflict with the doctrine of separation of powers, particularly absolute separation of powers.

But in an interview yesterday, lawyer Justin Dzonzi said it would be naive to think that pieces of legislation would end a social problem. He said laws are limited to people that are caught.

He said: “Laws cannot stop social problems. We have Penal Code, for example, which punishes murder, theft and a lot more offences. But have people stopped stealing, murdering one another?”

Mpaka: Public officers are only trustees

Dzonzi, who is executive director of Justice Link, said corruption is a rational crime which people commit not because they are ignorant or do not realise it is wrong, but because they want an economic benefit such as electricity or water connections to their homes.

On appointment of judicial officers into Executive positions, he said the claim that it has potential to cause conflict is unfounded because no one was born to serve a particular arm of government.

“It has no real basis. In any case, the appointee has a right to turn down the offer. There is no real basis for overprotecting the Judiciary,” said Dzonzi.

But MLS argued in its resolutions that there was a need to interrogate what public and private interests necessitate the appointment of judges to serve in the Executive positions and what measures can be taken to safeguard this practice against abuse of power.

Examples of judicial officers appointed to the Executive positions include Lloyd Muhara, who served as Secretary to the President and Cabinet in  Peter Mutharika administration and Agnes Patemba, currently serving as Malawi’s Deputy High Commissioner to the United Kingdom.

The AGM communiqué stated that the persistence of corruption in Malawi is well documented as are its heinous effects.

It reads in part: “Malawi’s response to combating corruption has involved the adoption of legislation and the establishment of a dedicated agency for dealing with the vice.

“These efforts notwithstanding, the fight against corruption continues to be a lopsided venture with the country registering negligible commendable progress while reports of serious corrupt practices continue to surface and continue to deem the hopes and aspirations of the ordinary people.”

The communiqué states that corruption in Malawi has become systemic; adding it seems particularly rife is in the realm of public procurement.

“The conference noted that while the law may commonly be invoked in aid when tackling corruption, it is important to critically reflect on its contribution in fostering and/or enabling corruption.

“By specifically focusing on the law on public procurement, the conference demonstrated that this regime of law by containing ambiguous terms, giving public officials broad discretion, conferring public officials with overboard freedom to create subsidiary legislation or regulations, creating burdensome processes, retaining gaps in regulatory or administrative procedures, and giving certain groups preferential treatment in procurement process motivates, enables and creates opportunities for corruption,” reads the communiqué. 

The lawyers also argue in their communiqué that despite having progressive constitutional provisions on separation of powers, the reality remains characterised by the promotion of self-interest State actors.

MLS president Patrick Mpaka said in an interview yesterday his body is reminding all holders of public office that they are only trustees to deliver tangible development to all the people of Malawi.

Minister of Information and Digitisation Moses Kunkuyu, who is government’s official spokesperson, acknowledged a questionnaire sent to him to react to some of issues raised in the communiqué, but he did not by press time.

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