Chapter 4

INSTITUTIONAL RESPONSES TO ORGANISED CRIME IN MALAWI

Background

Since the transition to the multiparty era from a single-party dictatorship, there has undoubtedly been a marked increase in criminal activity in Malawi. This unfortunate coincidence has fed the assumption that the rise in criminal activity is attributable to the abuse of personal liberties enshrined in and guaranteed by the 1994 Constitution of the Republic of Malawi.

Before 1994, Malawi was an autocratic state run single-handedly by former President Kamuzu Banda, through the Malawi Congress Party. The government had an enormous security machinery in what was known as the Malawi Young Pioneers and the red-shirted Youth League, which were branches of the ruling party. Ordinary citizens also acted as police informants on any suspected transgression, however trivial. On occasion, suspects would be arrested without a warrant and detained at the will of the regime.

The government had established traditional courts to deal speedily with serious criminal offences. No lawyer was allowed to represent any accused persons in such cases. It was therefore improbable that any person or group of persons would involve themselves voluntarily in organised crime. The fear of apprehension and ruthless punishment was a great enough deterrent. Statistics show that few major crimes were committed in Malawi during the ruthless years of Banda’s rule.

The advent of multiparty democracy in Malawi has seen a marked increase in crime, including organised crime. Criminal groups, which are loose affiliations of individuals varying in size in many cases, have since mushroomed. These groups have tended to be small and based on family, community or tightly constituted ethnic links. The conventional wisdom that organised crime is the preserve of structured hierarchies lauded over by godfathers is not substantiated in Malawi, where illicit activity is conducted by a complex and changing network of criminal groups and organisations. These organisations have generally involved themselves in a multiplicity of activities, including:

armed robbery;

drug-trafficking;

corrupt practices;

motor vehicle theft;

money-laundering; and

fraud.

The list is obviously not exhaustive. The challenge presently facing Malawi is to have effective, comprehensive legislation to combat organised crime committed by perpetrators who are able to change their organisations and identities rapidly to suit the requirements of tasks as they arise. It is therefore imperative to consider the existing legislation against what it is meant to achieve, and thus evaluate whether Malawi needs more effective legislative measures. This chapter highlights the laws in force in Malawi with the aim of evaluating whether or not more legislative measures are required.

Legislation on trafficking in firearms and ammunition

It is common knowledge that Malawi has generally been a peaceful country and that it has never provided a lucrative market for the firearms and ammunition trade. The known trade in firearms is mostly between Malawians and Mozambicans and not among Malawians themselves. This has been largely due to the influx of refugees from Mozambique during the time of the civil war in Mozambique.

The legislation which is in force to combat arms-trafficking is the Firearms Act, chapter 14:08, which provides "for regulating, licensing and controlling, transportation, dealing in and possession of firearms and ammunition and for matters connected therewith and incidental thereto."

This piece of legislation was evidently designed on the assumption that people will be law-abiding and will seek licences and permits before acquiring firearms. Furthermore, the punishments stipulated by the Act for transgressors are grossly inadequate (see table).

Except for the general offence of the unlicensed possession of firearms, all other offences are punishable with fines and prison sentences that are grossly inadequate. In response to the increase in armed robberies, the courts have started to impose harsh sentences and adopt a strict attitude to the granting of bail.

It is suggested that the sentences elaborated above should be made more punitive if they are to be a realistic deterrent to would-be offenders intent on using firearms in their criminal frolics.

Laws against domestic and crossborder motor vehicle theft

The Road Traffic (Regulations and Licensing) Regulations 2000 made under the Road Traffic Act (chapter 69:01) control crimes related to motor vehicle thefts. Under the Regulations, every motor vehicle should be registered by its title holder. The requirement that an application for registration of a motor vehicle acquired outside Malawi must be accompanied by an acceptable identification of the title holder and the owner of the motor vehicle, as well as customs and police clearance, enables the police to detect vehicles which may have been stolen outside Malawi. This is also true of Road Traffic (International—Circulation) Regulations which require that vehicles in international traffic should have proper identification marks. Although the penalty prescribed under the Regulations for non-compliance is a somewhat inadequate fine, the requirements for registration have assisted the police to combat crossborder motor vehicle thefts.

At the same time, it can be argued that the Regulations have been designed mainly as a means of revenue collection through registration and licensing fees and that they are therefore not a strong deterrent against persons determined to break the law.

In contrast, section 331 of the Penal Code (chapter 7:01) criminalises the receiving or bringing into Malawi of property dishonestly acquired or stolen outside the country, an offence punishable by imprisonment for up to seven years. This general section is much more effective in deterring potential perpetrators. However, the above pieces of legislation only focus on motor vehicles which have been brought into Malawi from other countries. A large number of motor vehicles are stolen in Malawi and used there. Many have been stolen from government departments, parastatal organisations, individuals and private companies. Some thefts have involved collusion between employees (mainly drivers) and thieves. The vehicles stolen have not been traced, although ownership appears to have been transferred. Transfer of internally acquired vehicles is relatively easier because there is no police clearance required.

It appears to be a simple matter to legislate a requirement for police clearance before any vehicle is transferred, regardless of its origins. The present practice, where even a ‘ghost owner’ may ‘complete’ a change of ownership leaves a lot to be desired as it opens the way for fraud and other criminal acts. It is also suggested that an application form for change of ownership, on which verifiable details of the identity of the transferor and transferee are entered, should be designed and prescribed.

Laws against the possession of and trafficking in drugs

The trafficking in what is commonly known as ‘Malawi gold’ - Indian hemp - manifests how organised crime has grown in Malawi. To put it bluntly, drug-trafficking occurs on a rather large scale. As recently as 16 February 2001, the police at the Mwanza border post impounded a truck headed for Zimbabwe carrying 15 bags of Indian hemp, each weighing 50 kilograms, as well as four travel bags loaded with the illicit drug. Last year, in co-ordination with SARPCCO, the police impounded 80 000 kilograms of Indian hemp, in a total of 1 198 drug-related cases. In this operation, 1 040 individuals were arrested, of whom 1 010 were Malawian nationals, and the rest Zimbabweans and South Africans.

Indian hemp is grown in the remote areas of Malawi, but finds its way to the cosmopolitan city of Lilongwe and the commercial hub of Blantyre. From within the borders of Malawi, the drug is exported to neighbouring Mozambique, Zimbabwe, South Africa, Zambia and even Botswana. A case in which a truck-load of Indian hemp from Malawi was intercepted in Harare just before the drug was exported to Europe shows that markets for the drug are situated as far away as Europe. This business is now increasingly run by sophisticated syndicates under cover of, or in conjunction with legitimate commercial activity such as import and export enterprises.

The legislation to deal with the possession of and trafficking in drugs is the Dangerous Drugs Act (chapter 35:02), which is designed to control the importation, exportation, production, possession, sale, distribution and use of dangerous drugs. Its major strength is in the hefty penalty provided under section 19:

"Any person who acts in contravention of and fails to comply with any provision of the Act …

(b) who in Malawi aids, abets, counsels, or procures the commission in a place outside Malawi of an offence punishable under a corresponding law in force in that place, or does an act preparatory to or in furtherance of an act which if committed in Malawi would constitute an offence against this Act shall be liable to a fine of K500,000.00 and to imprisonment for life."

The astronomical penalty sometimes has the negative effect of punishing disproportionately. This could be the case in respect of offenders found in possession of very small quantities of drugs for personal use. Fortunately, courts rarely impose the maximum penalty of imprisonment of life for minor offenders. All in all, the act is adequate and it is up to the authorities to utilise it to counter drugs-trafficking.

Legislation against money-laundering

Prior to June 2000, there was no specific laws against money-laundering in Malawi. The domestic legislation which existed in the form of the Reserve Bank of Malawi Act (chapter 44:02), the Banking Act (chapter 44:01) and the Exchange Control Act (chapter 45:01) and its Regulations, contained regulatory measures which could be used to detect money-laundering.

In terms of the newly introduced section 331A of the Penal Code (chapter 7:01), money-laundering is committed if:

a person engages, directly or indirectly in a transaction involving property that the person knows to be tainted; or



the person receives, possesses, conceals, disposes of or brings into Malawi property that the person knows to be tainted.

Tainted property is property derived or realised directly or indirectly from unlawful activity either within or outside Malawi.

As can be seen from the above definition, the legislation is not clear enough. The offences outlined in section 331A do not cover all the possible instances of money-laundering. There is need to consolidate all legislation which has the objective and capacity of preventing money-laundering so that it can be applied in a more co-ordinated manner than is currently the case. Modern technology has provided criminals with new tools that enable them to launder huge illicit profits across borders and continents. New legislation that includes measures for the tracing, seizing and forfeiture of the proceeds of crime and the monitoring of large-scale cash transactions is required.

The new legislation should also contain measures for the implementation of bilateral and multilateral arrangements and the promotion of international co-operation to detect and control economic crime in its organised form.

Mutual assistance legislation

Domestic legislation on mutual legal assistance exists in the form of the Service of Process and Execution of Judgments Act (chapter 4:04) and the Evidence by Commissions Act (chapter 4:03).

The former applies to both civil and criminal cases, and is intended:

"to provide for the service in Malawi of any court of record of Zambia or Zimbabwe, the execution in Malawi of civil judgments of any such court and for matters incidental to the foregoing and connected therewith."

The Evidence by Commissions Act is described as:

"An Act to provide for the taking of evidence within or without Malawi in relation to proceedings pending before courts within or without Malawi for the ascertainment of foreign laws and for other purposes connected therewith."

The domestic legislation is deficient in that its application is confined only to two other countries, Zambia and Zimbabwe. The Act has to be broadened to bring in other countries, particularly those in the SADC region with which Malawi has most of its dealings. The legislation is also silent with regard to:

the transfer of detained persons of one country to another country to assist in investigations, prosecutions or judicial proceedings;



executing searches and seizures; and



examining objects and sites.

Another aspect lacking in the domestic legislation is the issue of bank secrecy, which is not specifically addressed. It could be amended by the addition of a new section stipulating that mutual legal assistance shall not be declined on the ground of bank secrecy.

Extradition laws and agreements

The Extradition Act (chapter 8:03) makes provision for the extradition of offenders from and to Malawi. The Act provides that the relevant minister may enter into arrangements with the government of any designated country for the surrender, on a reciprocal basis, of fugitive offenders. The designated countries are the United Kingdom, South Africa, Lesotho, Botswana, Tanzania, Zambia and Zimbabwe. It goes without saying that there is a need for other countries to be included. Angola and neighbouring Mozambique are countries that readily spring to mind.

The legislation otherwise provides proper diplomatic channels for the surrender of fugitive offenders. It thus helps to prevent interference with the sovereignty of other countries by making it unnecessary for one country’s agents to infiltrate another country for the purpose of arresting fugitive offenders. The legislation further takes human rights issues into account by refusing requests for the arrest of fugitive offenders that might have the effect of infringing on the exercise of political, religious or other freedoms by such individuals.

Laws to augment investigative capacity

No laws to augment investigative capacity have been enacted. There is no provision for special investigative techniques such as electronic or other forms of surveillance and undercover operations for the purpose of effectively combating organised crime. However, the police is empowered under assorted legislation, such as the Police Act (chapter 13:01) and the Penal Code (chapter 7:01) to search any person reasonably suspected of having committed an offence, with or without a warrant. The police may also enter any premises for the purpose of conducting a search with or without a warrant.

Under the Bankers Books Evidence Act (chapter 4:05), a judge or magistrate may authorise a police officer, by warrant, to investigate the account of any specified person in any banker’s book. In terms of section 50 of the Banking Act, any employee of the Reserve Bank should disclose any information relating to the business of any bank or financial institution if directed to do so by a court of law.

It must be noted that, under the Corrupt Practices Act (Act 18 of 1995), which is discussed below, officers of the Anti-Corruption Bureau may have access to all records if authorised by a warrant issued by a magistrate. Section 43(1)(e) of the Corrupt Practices Act empowers the Director of Public Prosecutions to require any bank to furnish any information that would assist in expediting an investigation. The Director of Public Prosecutions may also require a legal practitioner to state whether he or she had acted at any time on behalf of any person in connection with the transfer or investment by such a person of any moneys out of Malawi or within Malawi. The Corrupt Practices Act insists that such information must be provided, notwithstanding the effect that compliance would be to disclose information, or a communication that is privileged. The derogation of lawyer/client privilege does not extend to information which came to the lawyer’s knowledge for the purpose of any proceedings began or contemplated before a court. It also does not extend to information given to him or her to enable him or her to give legal advice to a client. The derogation under section 51 only applies to instances where the lawyer has acted for the client in any financial transaction or other business dealing that is related to an offence under the Act (section 51(3))

The most positive aspect about the Bankers Books Evidence Act and the Corrupt Practices Act is the overriding of bank secrecy, which can augment the capacity of the police to investigate matters relating to, and trace the proceeds of corrupt practices and money-laundering. The Corrupt Practices Act is even more encompassing in that it further waives the privilege that traditionally exists with regard to information exchanged between lawyer and client.

All in all, Malawi needs legislation to provide for electronic or other forms of surveillance and undercover operations for the purpose of combating organised crime.

Anti-corruption legal mechanisms

The law dealing with corruption in Malawi is mainly to be found in the Corrupt Practices Act (Act no 18 of 1995). It is also contained in the Penal Code. The former Act makes provision for the establishment of the Anti-Corruption Bureau of which the functions are, inter alia, to:

take measures for the prevention of corruption in public and private bodies;



receive and investigate complaints of alleged or suspected corrupt practices; and



investigate any conduct of any public official who, in the opinion of the Bureau, may be connected with or conducive to corrupt practices and to report this to the minister.

The Corrupt Practices Act incorporates a stiff penalty regime as a deterrent against potential offenders.

The Act extends very wide investigative powers to the Anti-Corruption Bureau, giving it virtually unlimited capacity to access information. It is therefore disappointing that, since its inception, the Anti-Corruption Bureau has not secured the conviction of any of the prominent people suspected of corruption. The Bureau has been unsuccessful in almost 99% of the cases it brought to court. Consequently, the public now questions:

whether the Anti-Corruption Bureau lacks capacity and/or skill;

whether the courts are failing to interpret the law; or

whether legislative measures defining corruption are not broad enough.

The Anti-Corruption Bureau director, Gilton Chiwaula, told a press conference in 2000 that there was need for a review of the present law on corruption because the existing law had been "tested and found in need of improvement." On Tuesday 13 February 2001, the deputy director of the Anti-Corruption Bureau, Alex Nampota confirmed that the Corrupt Practices Act was currently under review. The review would cover:

the definition of corruption;

the protection of informants;

evidential aspects; and

arrest and search without a warrant from the court.

The scope of the definition of corruption will probably be widened. It is suggested that the proposed amendments should allow the Bureau to investigate matters currently lying outside its mandate. Declarations of assets and liabilities by public officials should be deposited with the Bureau.

The other problem is that some cases are brought to court in haste without proper preparation. A recent case in point is that against former Minister Brown Mpinganjira who was acquitted of corruption charges in March 2001. The Anti-Corruption Bureau needs more lawyers to assist in the prosecution of cases brought to court.

A major weakness of the Corrupt Practices Act is its failure to grant institutional and functional independence to the Anti-Corruption Bureau. The Act constitutes the Bureau as a government department and its director and deputy director are appointed by the president, who is also empowered to remove them from office. The Anti-Corruption Bureau cannot institute prosecutions under the Act without the written consent of the Director of Public Prosecutions. The Bureau is susceptible to undue influence by the executive branch of government.

It is suggested that amendment to the Corrupt Practices Act should be made with regard to the appointment of the director and deputy director of the Bureau. As is the case with the office of the Ombudsman, nominations for appointment to the office of director or deputy director should be received from the public following a public advertising process initiated by the clerk to the National Assembly. The successful candidate would be appointed by the Public Appointments Committee in accordance with specific requirements, which may be set down in the Act.

An impediment to the Anti-Corruption Bureau’s exercise of its investigative powers is a provision that is open to abuse by government ministers. In the case of investigations directed at a government department, the Bureau cannot have access to any information unless a search warrant is served personally on the relevant responsible minister. After service of such a warrant, the minister has a period of seven days to object to a court. It is conceivable that such an objection could be made in bad faith, or that the notice period could be used to frustrate detection by the Anti-Corruption Bureau. It is therefore suggested that the relevant provision should be reviewed to plug a gaping loophole.

Laws relating to the forfeiture of the proceeds of crime

The Forfeiture Act (chapter 14:06), which was repealed soon after Malawi adopted its new democratic dispensation, was a draconian statute. It empowered the Minister of Home Affairs to declare a person or persons subject to forfeiture. A criminal conviction or finding of civil liability was not required. The minister would merely make a declaration if he or she was satisfied that any person:

was or had been acting in a manner prejudicial to the safety of the economy of the state or subversive to the authority of the lawfully established government; or



while employed in the public service, had committed any theft of money or property received by virtue of his or her employment, whether or not such person has been convicted of theft.

The enforcement of the Act caused untold nightmares, particularly to political opponents of the ruling oligarchy during the one-party era. Under the new constitutional order, forfeiture is conditional upon conviction. Section 30 of the Penal Code provides that a court, in addition to or in lieu of any penalty which may be imposed, may order the forfeiture of any property which has passed in connection with the commission of the offence. Section 384 of the Penal Code empowers a court to order the forfeiture of any forged bank note, currency note or any counterfeit coin. Section 37 of the Corrupt Practices Act entitles a court to order the person convicted of an offence to pay to the rightful owner the value of any gratification actually received.

The Exchange Control Regulations under section 3(3)(d) empower the court to order the forfeiture of any currency in respect of which an offence has been committed.

As can be seen from the above, forfeiture may be imposed on an offender in addition to any custodial sentence imposed. It should be noted, however, that there are no forfeiture provisions in the legislation on money-laundering, the trafficking of dangerous drugs and firearms and motor vehicle theft. It is suggested that provisions should be incorporated to include forfeiture, rather than leaving it to the court to rely on the general provisions of the Penal Code.

Conclusion

There is an urgent need for more effective legislative measures in Malawi to combat organised crime. The list considered in this article is not exhaustive. The domestic law must cover all serious crimes involving organised criminal groups. The Law Commission, which was established under section 132 of the Constitution, is empowered to review and make recommendations relating to the repeal and amendment of laws.

Section 211(1) of the Constitution of the Republic of Malawi provides that any international agreement ratified by an Act of parliament shall form part of the law of Malawi if so provided for in the Act of parliament ratifying the agreement. Malawi therefore needs to enact legislation ratifying the United Nation Convention Against Transnational Organised Crime so that it forms part of the domestic legislation, in order to bring the latter into line with the Convention.