The pragmatic approach in the fight against corruption in Africa: Is amnesty to ‘thieves’ a justifiable move in the justice context of Malawi at the moment?

However, 57% of respondents say suspects who refund proceeds from corruption should be granted amnesty―Afrobarometer Survey (on Malawi), published April 14, 2022

 

Introduction

Latest Afrobarometer findings (published April 14, 2022) carry some intriguing statistic on opinions of Malawians over whether granting amnesty on corruption crimes can represent a fresh start in the fight against corruption in the country. Among other important findings on the level of corruption in the country, the survey reveals that a good 57% of Malawians support the legal instrument of amnesty. Specifically, these respondents say that suspects who refund proceeds from corruption should be granted amnesty. Not long ago, a heated debate had ensued in the country over the same issue after the government had floated the idea of a 60-day amnesty on corruption crimes to those who would come to the open on proceeds of crime. In that debate, those opposed to this legal instrument presented arguments, which soon elevated themselves  to a legendary status, namely that granting amnesty to ‘thieves’ was a clear affront to the rule of law, kind of turning impunity into an object of veneration. Whether rightly or wrongly, they also pointed to ‘the fact’ that this instrument ‘does not point to  precedent on the architecture of international law’. Eventually, their stance assumed the upper hand, beating many into submission, leaving the debate in the hands of fast-talking social commentators and eloquent lawyers, most of whom, as would be expected, opposed to this innovation. In the end, a picture emerged that seemed to suggest that the idea of amnesty to ‘thieves’ was or is undersubscribed. This manner of handling debate proved sentiments Freeman (2009) expressed on the topic correct.

 

According to Freeman, one problem surrounding debate on amnesty is that there tends to be no or little audience beyond the legal profession. Freeman has therefore invited others to the debate, arguing that, though the legal perspective tends to dominate this debate, it should only be one among the many. This paper argues that those who cite the rule of law as the reason for lampooning amnesty to corruption crimes overlook the following three important factors:

 

(1) that the context within which corruption is fought in Africa is unique owing to such issues as neo-patrimonialism and Africa’s level of development, evidence which calls for unique and novel approach to the question;

 

(2) that the instrument of amnesty can, in fact, be used to enhance the rule of law in returning stolen property to res publica, the people; and

 

(3) that amnesty of corruption crimes―be it civil or criminal―can proffer the best starting point in that it can facilitate the efficient return of the greater part of resources that belong to the people, thereby playing a public administration tool of efficiency.

 

On the question of context within which corruption is fought in Africa, this discussion demonstrates that the neo-patrimonially captured state in which most countries are means that the fight against corruption through only Western-forged strategies will be fine, as far as they go. The discussion therefore demonstrates that answers to the evil of corruption in Africa do not necessarily lie in transposing the Western institutions onto the African political reality but for a political-economy analysis of both African and Western institutions, which can give us context-based evidence on preconditions of successful institutions and robust anti-corruption strategies (Ganahl, 2013).

 

On the second point―the rule of law―this paper shows that amnesty can, in fact, enhance the inherent role of the rule of law in a liberal state like Malawi, namely to keep in check representative democracy to ensure it better serves res publica, that is to say, public interest. On this account, this paper is premised on what Richard Posner (2003) describes as the theory of pragmatic liberalism, where representative democracy is constrained by legality or the rule of law.

 

On the last question, my arguments perch on another theory Posner developed―the theory of law and economics, or simply economic analysis of law―an attempt that employs the concepts and reasoning methods of modern economic theory in order to gain a deeper understanding of legal problems, and to bring greater rationality to legal argumentation (Mathis, 2009, citing Behrens, 1986).

 

The following sections represent the scaffolding within which my arguments advance:

 

(1) Neo-patrimonialism, state capture and context within which corruption is fought in Malawi and Africa

(2) Weakness of deliberative liberalism in the face of neo-patrimonialism, and why the fight against corruption must assume pragmatic liberalism and economic analysis of law

(3) Reasons people oppose granting of amnesty on corruption crimes

(4) Recommendations

(5) Conclusion

 

Let me start by narrating a story that should help my reader measure the extent to which most of us are willing to go to mask truth. This is important because people taking part in debates as controversial as the one at hand tend to present a masked face; I will be as honest as possible.

 

The Corrupt Practices Act gives the President of the Republic of Malawi the powers to appoint the Director of the Anti-Corruption Bureau (ACB), Malawi’s corruption-fighting body. Following the interviews for the post, Ms Martha Chizuma came out top. For the reason, her name was submitted to the President so he should present it to the Public Appointments Committee of Parliament for confirmation. For whatever reason, the House rejected her, a move that smacked of injustice and hypocrisy. The civil society organisations and the general public in the country were inflamed. A friend of mine happened to be among the incensed CSOs, vehemently fighting for Ms Chizuma. Sensing danger, Parliament reversed their decision. Ms Chizuma was finally confirmed ACB Director.

 

When I asked this friend of mine what reasons they had defying Parliament after it had rejected her appointment, the response this friend of mine gave me left me groggy.

 

“You think Martha will succeed there?” this person said.

 

“Why not?” was my reply, surprised.

 

“No, she won’t,” head shaking, this person said.

 

“If you knew she won’t, why did you go all the way fighting the Public Appointments Committee, anyway?” I wanted to know.

 

“You want an honest answer?”

 

“Yes,” I said.

 

“Politics,” the friend replied, coolly.

 

The person is my friend, but I told that person in the face: “Then you’re not being honest with the President.”

 

Why on earth a people would so vehemently fight to install her there when they harboured some ill feeling towards her is beyond me. Whatever is happening to her I am not surprised.

 

Again, why did I have to start with this prologue? Well, to remind one another that we have many who speak with forked tongue. I will try not to repeat that mistake here.

 

Neo-patrimonialism, state capture and the context within which corruption is fought in Malawi and Africa

Latest Afrobarometer findings (April 14, 2022) reveal that Malawians do know (about) corrupt politicians, corrupt bureaucrats and corrupt entrepreneurs but they know implications for reporting them can be too much for them (the people reporting) to bear. The situation is dire as “almost eight in 10 Malawians (78%) say people risk retaliation or other negative consequences if they report corruption to the authorities” (p. 1). Why this is the case is an important question, important because it can help reveal a lot about the context within which the fight against corruption takes place in Africa in general (and in Malawi in particular). And this context must matter to us. In fact, one key finding in the 2016 United Nations Economic Commission for Africa’s African Governance Report IV reminds us that broader African governance context matters if we are to understand corruption. The Report thus entreats us “to move the debate beyond the present corruption indicators and assess corruption in a broader African governance context” (p. xiv). This, again, is important, important to help us understand the complexity of this issue in Africa and whether the strategies and instruments we rely on do have the teeth to bite in such a context. My stand from now going forward is that none of the armour we hoist as a magic wand in the fight against corruption will yield dividends in this weak and captured setting without us applying the novel approach, something sui generis in nature.

 

In almost all African countries, democratic structures and institutions are either captured or so weak, they almost do not exist at all. This context means that, from the word go, the fight against corruption comes up against a brick wall. Eventually, the whole effort takes something of a directionless circus. The reason is simple: institutions and structures in Africa are so weak and heavily captured, often they serve the interests of the party in power. According to the United Nations Economic Commission for Africa (2016), where institutions are weak, accountability mechanisms take a heavy beating, windfall political leaders and officials seize upon it to misuse national resources and abuse their power without being checked. Weak institutions is therefore an issue because “a lack of…institutions (a key component of accountability) has been shown to be one of the most important determinants of corruption” (Shah & Schacter, 2004, p. 42 as cited in the 2016 United Nations Economic Commission for Africa’s African Governance Report IV, p. 21).

 

Neo-patrimonialism is to blame for this weak state. It is a problem elsewhere, for example, in Eastern European countries where a study in which Loftis (2015) had used data from more than 600 European Commission directives in the 10 former communist European Union (EU) member states, demonstrates that “politicians delegate to trusted bureaucrats to diminish political responsibility for policy” (p. 1). But this is nowhere near the pandemic levels of corruption this side of the world where neo-patrimonialism has turned it into just another topic.

 

According to Wolfe and Müller (2018, p. 101), citing Erdmann and Engel (2007) and Weber (1997), neo-patrimonialism refers to “a system of governance where patrons and clients exchange rents for loyalty, as in an archetypal patrimonial society, but existing within the legal framework of a rational bureaucratic structure.” This governance model, also called patron-clientelism, sucks the national resources dry while, overnight, turns political leaders and those politically exposed therein Government Rich. The reason is that this model “relies heavily on state capacity to distribute economic and symbolic goods, combined with careful calibration of bureaucratic and political appointments along ethnic and regional lines in order to maintain loyal support” (Daddieh, u.d., p. 6).

 

The concept of the New Rich: Government Rich refers to people who become rich overnight as a result of their being connected with the government in power. These are the equivalents of the Oil Rich, the Silicon Valley Rich, the Dot-Com Rich. According to Schweizer (2011), the New Rich: the Government Rich are the powerful politicians who use insider deals, insider trading and taxpayer money to become filthy rich in a short period of time. Schweizer gives the example of Dennis Hastert, the man he says was elected to Congress in 1986 and rose to be Speaker of the House in 1999. Schweizer writes that when Hastert first went to Congress, he was only worth between $50,000 and $100,000 with other assets of roughly $170,000. He observes that this had remained the case until he became Speaker of the House, but that when he resigned in 2007, he had a reported net worth of $11 million. Schweizer suggests that such money could only be explained by crony capitalism.

 

In Africa, under the governance model of neo-patrimonialism, politics keeps churning its own equivalents of Government Rich, those who go in with a meager earning but grow filthy rich and powerful overnight through connection to prominent entrepreneurs, friends to the patron, one on whom everything in the society pivots.

 

In an entrenched patron-clientelism model, everything belongs to the all-powerful patron leader. Those who make laws, for example, do so with their eyes on their leader, to please him. They do so because it is this Master who selected and endorsed them in the first place. All of them, everyone―the Inspector General, the Army Commander, the CEOs, District Commissioners, name them―report to him or they will risk losing out on both the windfall and the grand feast. For serving him well, the master gives them the keys unto the vault of the national cake―good jobs, mine ownership, other business opportunities, ‘commissions’, good education, protection from prosecution, name it.

 

Patron leaders tend to accumulate excess powers. In fact, they never submit to true power-sharing, going oblivious to the fact that twenty-first century governance subsists in co-governance―inclusive governance. This exacerbates the problem of corruption as no one grows bold enough to wrestle the colossus. In fact, extant evidence shows that leaders who surround themselves with a lot of powers tend to preside over a lot of corruption. In the words of Rosenfeld (2004), “state-dominated societies tend to be characterized by widespread moral cynicism, the lack of personal agency on the part citizens, weakened civil institutions, and correspondingly high levels of corruption” (p. 25.).

 

In Kenya, President Mwai Kibaki who had promised to trim his powers once elected, reversed the decision when he realised neo-patrimonialism feeds on excess powers. No wonder his leadership turned a haven for corruption. And writing of Kenya, Khamisi (2018), makes a startling revelation on the extent of the problem of neo-patrimonialism (clientelism, nepotism and cronyism) and corruption in the country. Of Kenya’s London High Commission, for example, Khamisi (p. 489) submits that,

 

During the entire duration of Kenyatta’s rule, the top diplomat came from the Kikuyu community [Kenyatta’s tribe): Joseph Njoroge (1963-1970); Ngethe Njoroge (1970-1978). When Moi came to power in 1978 up to the time he left in 2002, seven out of eight High Commissioners were Kalenjin: Shadrack Kimalel (1978-1981); Bethuel Kiplagat (1981-1983); Benjamin Kipkulei (1983-1986); Sally Kosgei (1986-1991); Simon Bullut (1991-1992); Josephat Ruto (1992-1997); Nancy Kirui (2000-2005). Mwanyengela Ngali, a Taita, (1997-2000), was the only non-Kalenjin. President Kibaki replaced Ngali with Joseph Muchemi, a Kikuyu (2005-2009); Ephraim Ngare, a Kikuyu (2009-2014). President Uhuru appointed a Luo, Lazarus Ombai Amayo in 2014, who served beyond Uhuru’s first term in office.

 

Neo-patrimonialism is put into a sharper focus again when Khamisi (2018) reveals about immediate family members being given preference for diplomatic posts, a typical sickening misallocation of precious human resources. On this, Khamisi (p. 492) writes:

 

During the grand coalition government of President Kibaki and Prime Minister Odinga, the latter’s sister was fished from the University of Nairobi for the consul general’s position in Los Angeles. It made no sense for a chemist to be appointed to head a diplomatic mission. It was pure nepotism and Kenyans made that known to the government. At the same time, Kibaki ensured her daughter, Winnie Wangui Mwai, was given a plum job at the Ministry complete with a security detail in tow.

 

Even for business success, you have to rely on the goodwill and blessing of the patron leader. In Malawi, what the former Speaker of Parliament, Right Honourable Davis Katsonga, reveals on this is enlightening. According to Honourable Katsonga, “In Malawi, the biggest employer is Government. Even private companies that you have, most of them can’t survive without [business] orders from Government” (Times Exclusive with Hon. Davis Katsonga, 23rd November, 2019). The same applies to political parties. On this, Honourable Mwenefumbo, former Member of Parliament, confesses, unembellished: “Freedom and rights in parties do not work … anything to the contrary they call you a ‘rebel’” (Cruise 5 with Frank Tumpale Mwenefumbo, 12th June, 2018).

 

The problem with uncontrolled patronage is that it “poses the biggest threat to state-building in democracies whose party systems are underinstitutionalised, volatile, and unpredictable [since such] systems do not generate quality party competition and, hence, do not provide voters with the information and leverage to hold governing parties accountable” (O’Dwyer, 2006, p. x).

 

The problem of patronage is often traced to how states develop, which is determined by a number of factors, most conspicuously, a country’s political culture, path of democratic transition, previous democratic experience, and level of economic development (O’Dwyer, 2006). It is not the preserve of this discussion to analyse each one of these factors. However, one factor―path of democratic transition―deserves some mention or attention here. In short, we need to understand the nexus between neo-patrimonialism and the nature of transition our leaders had adopted when the country was moving from the single-party state to the multiparty one we are in today. This is important to help us appreciate why corruption keeps soaring and why every government that comes to power adopts same thieving strategies and uncontrolled appetite for accumulation.

 

The manner in which Malawi transitioned from the single-party dictatorship following the 1993 Referendum exposed the nation and left a yawning chasm on Malawi’s architecture of democracy, a defect that has defied correction over the years. Like most African countries, Malawi keeps performing poorly as far as consolidation of her democracy is concerned. According to Chinsinga (2008), “a democratic regime is considered consolidated if and when the rules of the democratic game are respected and considered legitimate by all significant groups. [In other words], democratic consolidation becomes a reality if, and only if, democracy is the only game in town” (p. 9).

 

The case of Malawi is that we ran away with democracy before we had put in place institutions that would ensure everyone respected the rule of the game of democracy. This made Malawi the defective democracy it is today, one where democracy finds room simply because the nation manages to conduct the so-called free and fair elections, and nothing more, actually. Apart from the elections, the rest of the Malawi room of democracy is occupied by the patron leader or leaders, where, borrowing from O’Dwyer (2006), very institutions meant to facilitate democracy or good governance themselves come to constitute instruments for frustrating effective government.

 

Our case, critical at the moment, is like that of the former Communist countries. Discussing why former communist countries ended up carving patronage systems rather than consolidated democracies, O’Dwyer (2006, p. 7), citing Shefter (1994) writes that the fact that electoral competition was introduced before the consolidation of the postcommunist state administrations meant that the avenue was created for patronage politics, enabling underdeveloped and resource-hungry parties to raid the administration for their own party-building. In other words, when parties are established before democratic institutions are put in place to guide those political parties, births of patrons result. In Malawi, political parties were born within the same period institutions were being set up. In fact, in some cases, political institutions were hastily put together to help raise governance institutions. The patrons we created at the time keep passing the baton to those who will perpetuate cronyism, vehemently opposing scrutiny and smooth transition. To dismantle this patronage system is almost impossible or perhaps requires redesigning the whole structure. However, unless we agree to put in place incentives that will entice the master to acquiesce, the efforts will yield disappointingly.

 

These I say because when these patrons or their clients are threatened, they use every means or adopt every measure at their disposal to ensure perpetuity or to preserve the status quo. Worse still, there is no absence of foot soldiers to run them errands. Effective fight against corruption will have to overcome this wall of brass, a proposition next to impossible.

 

Further dilemma within the neo-patrimonially compromised setting is encountered when our laws fail to take to task the transnational player. It should be said in the manner of Fisman and Golden (2017) that there are basically four types of participants in corrupt activities: elected public officials (politicians), government bureaucrats, businesses, and ordinary citizens. What is conspicuously missing here is the role the transnational stakeholder plays in perpetuating corruption locally.

 

The transnational stakeholder has no motivation to toe the line because the demand of accountability is almost non-existent in his world. In the United Kingdom, for example, he comes before a lenient regime. According to (Bello, 2016, p. 75), “There are also those that complain about the UK as a haven for money laundering because of an apparently lax sentencing regime. … gives an example of China, where white collar criminals are sentenced to death for corruption, but in the UK a similar offence would not attract more than a few years that would even be suspended after a year or two in jail.”

 

Other complexities arise from one inherent character of neopatrimonialism, namely abhorrence of instruments that would enhance an open society, for example, a robust access to information (ATI) legislation. In most African countries, the ATI legislation was captured right at birth. One strategy neo-patrimonial governments use lies in selecting for custodian of the legislation a body well-versed in law so ordinary people will be terrified to ask serious questions where things stall. It is the same logic that such countries use to kill corruption cases, where a case brought before a court of law can last decades and no one will question it for the simple reason that it is still under consideration, that courts know what they do, that you don’t have to push courts.

 

The problem of weak open society instruments is compounded by yet another, human-made as well, namely that instruments that should be talking to each other―complementary policy instruments―are made to fight each other. It is common knowledge that a robust Open Government regime would enable back-end access to public information and declaration of assets regime that talk to each other if these were placed under the same institution. Strangely, they are perched miles apart so declaration of assets does not achieve the intended objectives since no one accesses these documents. In the end, the people’s focus is merely whether someone has declared or not, a naïve way of interpreting the object of regimes of declaration of assets. In this way, the citizens fail to demand explanations over how such assets or liabilities were acquired, and whether the mode of acquisition is such as would be supported by law.

 

Neo-patrimonialism has also rendered inept the fight against corruption by insisting on adopting strategies designed in the West, a different context, for use in Africa. These instruments are promoted by such institutions as the World Bank, USAID, UN Office on Drug and Crime (UNODC), USAID Anticorruption Strategy, and the 2003 UN Convention Against Corruption. They are powerful instruments as they are, but neo-patrimonialism in Africa has found a subtle way of using them to punish dissent or scrutiny. This is the reason these instruments work with speed against those in the opposition.

 

Neo-patrimonialism abhors the fight against corruption because it poses a great threat to the patron leader and those around him or her. He will pay lip-service and make the West believe he means true. For me, one way would persuade the patron to acquiesce, namely use of restorative justice of which amnesty is one. We should not assume that everything will be returned, but at least something will, and from then, our land can start afresh. And for those who doubt this, Genger (2018) reminds that the fact that the fight against corruption often appears under numerous themes should remind us that “corruption is a form of violence that is difficult to analyse and resolve under one descriptive concept and with one intervention strategy” (p. 20) (emphasis mine). It is incumbent upon Malawians, therefore, to identify instruments that can work better in the Malawi context.

 

Van Schoor (2017), citing prominent scholars in the field of corruption who include Kaufmann (2005), Lambsdorff (2007), Mungiu-Pippidi (2011), Rothstein (2011), and Pieth (2012), has argued that “if the desired outcome is not achieved by the focus on enforcement and prosecution because laws are existent to a large extent, but not applied, it may be time for a paradigm shift towards a more indirect and incentive-based approach and prevention-based approach to corruption” (p. 3). I subscribe that the fight against corruption in the context of Malawi requires the incentive-based approach. For me, such an approach will come from the readily available yet controversial legal instrument of amnesty on corruption crimes.

 

Amnesty, even on non-corruption crimes, always proves controversial. In South Africa, for example, amnesty, as widely touted as it is for bringing the South Africans together, had not come without difficulties. There, some people had vigorously opposed to the idea of amnesty. In Azanian Peoples Organisation and Others v. President of the Republic of South Africa and Others (1996) (8) BCLR 1015 (CC), for example, the Azanian Peoples Organisation (AZAPO), including Stephen Biko’s widow challenged section 27 of the Promotion of National Unity and Reconciliation Act 34 of 1995. This is the Act that established the Truth and Reconciliation Commission. Section 27 provided a conditional grant of amnesty if the applicant engaged in full disclosure of any role played during apartheid, such as torture. This role had to be for a political purpose. The Applicants argued that section 27 denied them the fundamental right to a trial, which was guaranteed in the Interim Constitution by section 22. The Court not only granted criminal amnesty but also granted civil amnesty.

 

So, what is amnesty?

 

Well, amnesty is one of the legal instruments that have the effect of displacing individual criminal accountability. According to Freeman (2009), other legal instruments with the same effect include pardons, statutes of limitation, and the various types of standing immunities recognised in treaties and domestic legislation. Freeman (2009, p. 13) therefore defines it as

 

an extraordinary legal measure whose primary function is to remove the prospect and consequences of criminal liability for designated individuals or classes of persons in respect of designated types of offenses irrespective of whether the persons concerned have been tried for such offenses in a court of law.

 

Amnesty does not entail attempts to overlook or bypass the justice system, for “amnesty presupposes that there is a legal system, which is based on punishment as legal consequence for criminal acts” (Günther, 2001, p. 3). Günther (2001, p. 3) adds that amnesty

 

is therefore not concerned with a particular case, but requires a general law enacted by the legislative power. Furthermore, an amnesty does not necessarily require a court verdict, but also addresses cases where the proceedings are not yet terminated or even started. These two features distinguish amnesty from mercy: mercy is a decision of the executive power to revoke the criminal sanction of a court verdict in a particular case

 

Nations have adopted the legal instrument of amnesty for various reasons. The table below summarises the reasons.

Country	Purpose of amnesty	Year
Morocco	Correct past injustices	1994
Chile	Entrench impunity	1978
Croatia	Given in postconflict contexts	1996
Guatemala	Given in midconflict contexts	1983
Portugal	Given in nonconflict contexts	1974
Peru	Extinguish liability for most serious human rights offenses	1995
Democratic Republic of the Congo	Extinguish liability only for less serious offenses	2003
Uganda	Given to encourage lower-level combatants to break rank	2000
Uruguay	Conceded as part of a pacted transition	1986
South Africa	Democratically adopted as laws by parliament	1995
Zimbabwe	Imposed unilaterally by the executive branch	1988
Sierra Leone	Negotiated in peace accords	1999
France	Apply only to state agents	1962
El Salvador	Apply only to non-state actors	1992
Aceh/Indonesia	Accompanied by commitments to formal transitional justice measures	2004
Angola	Not accompanied by commitments to formal transitional justice measures	2002
Mozambique	unconditional in nature	1992
Algeria	Impose numerous preconditions	1999

 

Amnesty does not always result in an agreement. Schäfer (2001, p. 18) writes that

 

In South Africa, for example, initial enthusiasm has been replaced by an increasing sense of disillusion, and a feeling that the TRC has left the country as divided as before. In Chile, an amnesty of a very different kind, the self-amnesty of its former dictator Pinochet, was initially seen as a necessary condition for a peaceful transition to democracy. But when the British House of Lords had to decide its very lawfulness under international law, the grief of his victims regained its voice and showed the world a Chile whose transition to democracy remains precarious—because of, not despite, the amnesty.

 

As far as war and peace is concerned, amnesty is a very old practice. Kaguongo and Musila (2009) cite O’Shea (2002) as giving evidence of amnesty in the second millennium before Christ. According to Kaguongo and Musila, in 1826 BC Pharaoh Rameses II of Egypt is said to have fought the battle of Kadesh with the Hittites, one that was followed by a peace treaty which incorporated the notion of amnesty.

 

I must confess that amnesty on its own is a controversial topic, and applying it to corruption crimes can prove even more controversial. But anywhere, “policies to control corruption will always be controversial and contested” (Rose-Ackerman, 2012, p. 3). Thus, the fact that this instrument is controversial must never dissuade us from thinking on how we can innovatively employ it to deal with the growing problem of corruption in this country. Remember, latest Afrobarometer findings (published April 14, 2022) show corruption on the increase in Malawi. In fact, “Two-thirds (66%) of Malawians say that corruption has increased over the past year, including 57% who say it has increased ‘a lot’” (p. 1).

 

One reason why adoption of amnesty on corruption crime should be considered is that most of the traditional methods we have applied to deal with corruption have failed us, mostly because of incensing neo-patrimonialism. Perhaps the fact that corruption keeps soaring in Malawi despite our belief in the rule-bound approach should teach us this approach will not give us all the answers. Perhaps it is now time for us to assume pragmatism in the way we fight this evil.

 

Weakness of deliberative liberalism in the face of neo-patrimonialism, and why the fight against corruption must assume pragmatic liberalism and economic analysis of law

The idyllic picture of a liberal state or liberal democracy is that of representative democracy put in check by law. Posner (2003) refers to these two herculean legs, that is to say, representative democracy and law, as the twin pillars of the liberal state. It must be mentioned that there are two approaches to express the way representative democracy is perceived or the way representative democracy is put under check, namely pragmatic liberalism and deliberative liberalism. He calls the form of democracy in deliberative liberalism deliberative democracy. As for the practice of law under deliberative liberalism, he characterises it as rulebound or principle-bound adjudication.

 

The important distinction between the way pragmatic liberalism and deliberative liberalism view voting and behaviour or action of elected officials is that, in the former, voting and human behaviour are not necessarily guided by reason but by interest. Pragmatic liberalism is therefore skeptical of human behaviour or action to always stick to or follow rules and principles. Incentives for them, therefore, should go beyond rules and reason, but should instead consider the total picture, emphasising institutional and material factors because these are the very issues they use to make decision on a matter. Put simply, elected officials or citizens will not take particular paths simply because they reason or there are rules they follow; they will do so by considering more institutional and material factors. In a neo-patrimonial system like Malawi, for example, people will consider such factors as the political culture, the benefits they will derive from their action, among others, to make a decision. Similarly, a person who is protected by such a system will never indulge in corruption because he or she reasons or she fears the law, but because of other factors, mostly institutional and material.

 

Deliberative liberalism, on the other hand, believes that adjudication or means of constraining political or government officials is guided by rules or principles. For deliberative liberalism it is rule-bound or principle-bound adjudication that matters, not context.

 

The following excerpt from the introduction in Posner (2003, p. 1) aptly conveys that there are times when deliberative liberalism dismally fails, circumstances where law must allow pragmatism to take care of issues:

 

First there was the investigation and impeachment of President Clinton, and people said, yes, he’s a crook but he’s been an effective President and we should be pragmatic and offset his effectiveness against his misbehavior. Then came Bush v. Gore, where the Supreme Court handed George W. Bush the Presidency, and people said—or at least the critics of the decision, who were many, said—that the Court had acted out of an excess of pragmatism, wishing to spare the country the spectacle of a botched Presidential succession. Finally there were the September 11, 2001 terrorist attacks and in their wake people began to say that civil liberties would have to bend to pragmatic concerns about public safety. These disparate episodes focus sharply the question of the proper role of pragmatism in law, and in government generally.

 

Considerations for pragmatic liberalism have been applied in the United States, a setting that has enjoyed over two hundred years of independence and freedom. Will it be recklessness for a nation that has known independence for only fifty-eight years to try it out?

 

Two years ago, in South Africa, the country’s former Public Protector, Thuli Madonsela, surprised the nation when she suggested that public servants implicated in grand corruption there should be given the chance to apply for amnesty. In “Why an amnesty for grand corruption in South Africa is a bad idea”, dated November, 3, 2020, Richard Calland criticises Madonsela, wondering why someone who had stood steely against President Jacob Zuma and his network of corruption could take a position so diametrically opposed to what she had stood for.

 

Calland is asking a pertinent question: Why should someone who had stood against corruption, tackling powerful people like Zuma suddenly begin to favour the idea of amnesty? Well, she has come face to face with reality, namely that the issue is so complex because the network supported by corrupt officials is huge and everywhere. In short, she has realised that sometimes a hardline approach to issues only leads to more chaos. And she was right. For example, if the people had taken heed to this, would the destruction Kwa Zulu Natal witnessed recently have occurred? I do not think so.

 

Professor Madonsela must have learnt that deliberative liberalism does not always present the best answer. Perhaps she is now embracing pragmatic liberalism.

 

In our neighbour Mozambique, a study that examined the people’s positions regarding corruption amnesty laws showed that the idea of amnesty on corruption crimes is not altogether farfetched. According to Cruz and Mullet (2019), 30% of the respondents said that officials convicted of corruption would never deserve to be amnestied, 28% said repentant attitude was the only determinant of acceptability, while 42% stated that the amount of money embezzled also mattered (p. 84). Cruz and Mullet had asked 303 Mozambican adults to rate the extent to which amnesty applicants deserved to be amnestied, according to three factors: (a) the applicant’s status (e.g. former minister), (b) the amount of money embezzled, and (c) the applicant’s attitude during the hearing (e.g. revelation of important information).

 

Two years ago, here in Malawi, the Public Affairs Committee (PAC) had made an interesting proposal that bordered on amnesty (see Zawadi Chilunga’s “PAC asks Malawi Gvt to discontinue Muluzi [K1.7 billion] case: ‘Chakwera, MCP took this position already’” dated January 5, 2021, nyasatimes). These sentiments were contained in a statement the Public Affairs Committee had released at the time, assessing governance trend in the country for the year 2020.

 

In the statement, PAC had proposed dialogue or political solution as the answer to the case. According to PAC, “The government expenditure on such a prolonged matter [it started in 2005] is huge and the tendency to activate such a matter for political gains has been a dent in the pursuit of the rule of law.” The PAC came bolder, observing, “The use of a statute in such a manner is tantamount to the ‘weaponisation’ of the law―the view that has been voiced previously.” The PAC had used the notion of economic analysis of law here, considering which between the two constitutes the greater good.

 

A day later, the Malawi Law Society (MLS) took PAC by the scruff of the neck, calling the proposal attempts to elevate politics over rule of law. In the wisdom of the MLS, political settlement was no option, because the courts have the capacity to conclude such a case. Over a year later, Lady Justice, this blind-folded woman, in one hand scales of justice, in another the piercing mighty sword of justice, is nowhere near completing the case, and this case was born in 2005.

 

Previously, on March 1, 2020, The Nation had carried a story carrying the headline “Muluzi case needs political solution―ACB boss” (by Frank Namangale). According to the article, the Anti-Corruption Boss at the time, Reyneck Matemba, confessed at the time, and this was his personal view, that the corruption case against former President Bakili Muluzi required a political solution because it was not prosecutable. Mr Matemba had observed that no one would come at the bureau and successfully prosecute Muluzi in the case that was, at the time, clocking 14 years.

 

A month later, another news article revealed that the Parliamentary Legal Affairs Committee was putting pressure on the ACB to discontinue the case (see “ACB to evaluate Muluzi case within 90 days on logical conclusion” by Owen Khamula. The 90 days went; we are in 2022, June.

 

Today, 57% of Malawians say they support the idea of amnesty. Where is the wisdom in neglecting this voice if it is indeed public interest that we purport to serve?

 

People who take the hardline stance against corruption in Africa soon realise that there comes a time when pragmatic liberalism rather than deliberative liberalism must take the upper hand. Our President, Dr Lazarus Chakwera had taken a tough stance on fighting corruption, dismissing members of his cabinet on allegations only. Even Professor PLO Lumumba was bought in by this diligence. Today, even after names of members of his cabinet have been mentioned in a document in court, a court in the United Kingdom, he has assumed the pragmatic approach, observing in his Tuesday, May 31, 2022 speech:

 

And now, let me address the media reports of corruption allegations against senior members of my Administration. I am aware that both the publication and the source document from the United Kingdom have now circulated widely across social media and other platforms. And according to the reports, the British man being investigated by British authorities was here in Malawi two months ago; then he was arrested and questioned in the UK on his return there; then he was released on bail without being charged; then he applied to court for the conditions of his bail to be amended; and then was denied the amendments he applied for because the National Crimes Agency argued against the application on the basis of the seriousness of the allegations against him, including the allegation that he had corrupted senior officials in my Government, including my Vice President, my Chief of Staff, the Solicitor General, the Inspector General of the Malawi Police Service, the Chairperson of the Public Procurement and Disposal of Assets Authority (PPDA), and a Malawi Police Service lawyer.

 

When one considers the names, rather the titles, named in the document, one tends to wonder what it was to be like if the President had maintained his hardline stance. The question would be: Were we not going to turn ourselves into a laughingstock of sorts on the Continent if we had jumped in, head first, dismissing them all? Pragmatism, call it wisdom here, had to come in to save us great embarrassment. And so the President went on:

 

But it is not enough for me to feel angry. You elected me to make decisions that make our country better. And I took an oath of office that when making any decision, including in matters of justice, I would do so “according to law without fear or favour, affection or ill-will.” That means my decisions as President must uphold certain principles of justice, regardless of my feelings and frustrations. It is these principles of justice that make us a civilized society, and so we cannot sacrifice them in the name of anger and anguish.

One of those principles is that every citizen has a constitutional right to defend themselves against an accuser, and at this point, none of these individuals have been charged by any court where they can answer for themselves. Another principle is that everyone’s side of the story must be heard, and at this point, none of these individuals have even been invited for interviews or questioning by investigators to hear their side of the story, and now a whole week has passed since the allegations against them were reported, yet our investigators have not even seen the need or urgency to interview them. A third principle of justice is that everyone is presumed innocent until proven guilty of a charge tendered in a credible court of law, and at this point, no court in Malawi has charged these individuals of any crime.

 

So, what was his decision on this? Well, this is what the President said:

 

It is because I am required by law to uphold these principles that I have always waited for our own respected investigators or courts to bring charges against someone before taking executive action concerning their position. Of course, I do respect the credibility of courts in other countries like the United Kingdom and I respect the credibility of media reports here at home, but I cannot compromise our sovereignty by basing my presidential decisions on anything other than the Constitution. The Constitution binds me to base all my decisions on the law as applied by the law enforcement agencies in Malawi and adjudicated by the courts in Malawi.

 

What is the lesson in all this? Well, that there comes a time when we have to embrace pragmatism or risk destroying even the little we have as a nation. Socialisation has taught our leader pragmatism in politics matters.

 

Recently, some people have been demanding the resignation of the Vice-President who has been mentioned in the said court document. In one article, “Pressure mounts on ‘corrupt’ Malawi Vice-President to resign for involvement in bribery, money laundering” (available at www.nyasatimes.com), Charles Kajoloweka is said to have said that it will only be fair for those on the list to submit voluntary resignations or they will face ‘mammoth demonstration’. Kajoloweka is Executive Director for Youth and Society.

 

The article quotes another activist, Robert Banda of the Institute of Public Accountability, an anti-corruption governance watchdog as lamenting the lenient stance the Anti-corruption Bureau has taken on those on the list. According to Banda,

 

We know she is friends with the Vice-President Chilima and belong to the same Church but personal interests should not lead to some people being treated as sacred cows. Why has ACB not arrested the Vice-President and all those involved in the scandal? The British Crime National Agency shared the list with ACB so why there is no action from her officer?

 

As I am writing this, courts in the country are presiding over case upon case involving corruption. In one case, a former Minister of Energy in the current Tonse Government, Mr Newton Kambala, is alleged to have made attempts to influence the National Oil Company of Malawi (NOCMA) to award contracts of 2020/2021 fuel supply for the advantage of Orxy, Finergy and Trifugira Fuel companies. Two others, Mr Enock Chihana, President of Alliance for Democracy (AFORD) and Mr. Chris Chaima Banda, Presidential Adviser on Strategy, are alleged to have aided and abetted Hon. Newton Kambala when he attempted to influence the award of the contract to supply 40000 metric tonnes of fuel to a company known as Finergy. Some revelations coming from the proceedings are proving too explosive for a country the size of Malawi.

 

Only a few days ago, the High Court in Lilongwe dismissed the application for Judicial Review by another former Minister in the current ruling Tonse Alliance, Kezzie Msukwa, who was asking the court to declare that his arrest in December 2021 was illegal. According to “Malawi High Court accuses ex-Minister Kezzie Msukwa of court-shopping” by Mwayi Mkandawire (dated June 3, 2022):

 

Msukwa was arrested by Anti-Corruption Bureau (ACB) in December at Partners in Hope Hospital in Lilongwe where he was receiving medication. His arrest was on allegation that he facilitated the illegal sale of land to a businessperson at the time he was Minister of Lands. Msukwa is alleged to have received millions in bribes and a vehicle following the dubious deals. (Malawi24.com)

 

Only four months ago, a story ran in the papers on another official. In one online newspaper, it carried the headline: “Presidential aides in messy K370m money scandal using Chakwera (the President’s) name” (see nyasatimes dated February 17, 2022).

 

In the same way, there are more cases in court currently involving a number of former ruling Democratic Progressive Party officials too and other bureaucrats. And, there are even more distressing pieces of news about officers in the judiciary who benefited from school fees from some business persons, and if all these would come to light, I am not sure who would stand to condemn the other. This snapshot of issues tells me there must be a revolutionary way out of this, after which we shall revert to the default setting. For me, amnesty is that route out or we must brace ourselves for more embarrassment.

 

But even after presenting this picture to my people, there are so many who will consider all this writings of a fool. But why do so many people oppose granting of amnesty on corruption crimes? Well, one oft-cited reason is that this instrument can undermine the rule of law. In the following sections I discuss the validity of this argument and many others. I will demonstrate that the seriousness of the issue at hand requires more than clearing the rubble; it requires an honest discussion that should lead to a revolution by all Malawians of good will. By revolution I mean a consensus of ideas to redesign our institutions and to put in place sluices to ensure everyone is adhering to these principles.

 

Reasons people oppose granting of amnesty on corruption crimes

There are a number of reasons people present on why granting amnesty to ‘thieves’ flies in the face of justice in the context of Malawi. I respect them all, but I wish to advise that most such arguments pale in the face of evidence in the context of the neo-patrimonial setting of most African countries at the moment.

 

(1) Undermining the rule of law

The notion of ‘the rule of law’ is often contested, but it is generally agreed to signify:

“the empire of laws and not of men”: the subordination of arbitrary power and the will of public officials as much as possible to the guidance of laws made and enforced to serve their proper purpose, which is the public good (res publica) of the community as a whole. When positive laws or their interpretation or enforcement serve other purposes, there is no rule of law, in its fullest sense, but rather “rule by law”––mere legalism––in service of arbitrary power (Sellers, 2016, p. 5).

 

What this means is that

 

When we have and maintain a legal system that serves the common good of society as a whole, then we have the rule of law (because the laws rule and not men), we have liberty (because the law prevents oppression), and we live in a republic (because government advances the res publica or “common good” of its subjects). The rule of law, liberty, and republican government are three facets of the same substantive good, secured only where the laws rule and protect us from tyranny and oppression. When positive laws and their interpretation and enforcement serve the public good, and prevent domination by any person or group of persons, then we have the “imperium legum,” the rule of law in its fullest and best sense: “the empire of laws and not of men.” (Sellers, p. 5)

 

But if we can accept that we understand what “a government of laws, not of men” means then something should surely be wrong with us. On this, I concur with Sánchez-Cuenca (2003) who expresses surprise that we all pretend we understand this statement yet it is at best ambiguous. Sánchez-Cuenca proffers a reason for questioning this absurd view of this metaphor. According to Sánchez-Cuenca,

 

A government cannot consist of laws. A government of laws can only mean that the rulers are bound by what the law establishes, that is, that a government of men complies with the laws. The underlying confusion is also apparent in other, equally misleading phrases that people link to the rule of law, such as “the sovereignty of the law” or “the supremacy of the law.” All this is empty rhetoric. The law, being a human creation, must necessarily be subject to human will. In fact, the very term “the rule of law” is in itself rhetorical. The law cannot rule. Ruling is an activity, and laws cannot act (p. 62).

 

In short, this insistence on the rule of law as “a government of laws, not of men” overlooks one important truth―anything that is under the control of humans is subject to manipulation, and according to Clark and Lee (2013), citing Buchanan and Tullock (1962), the explanation is simple and it lies in public choice, also called the economics of politics.

 

Among others, public choice or the economics of politics provides that, in democracies, all affairs are run by politicians or at least, at the helm are politicians, and politicians do not make decisions or choices based on what government should do but on the rules political agents follow when making decisions that determine what government actually does. Clark and Lee explain further that, to understand politics, we need to understand the individual because, when making political decisions, individuals are no less influenced by self-interest than when they are making market decisions. What Clark and Lee mean by this is that it does not matter the rules or constraints―procedural or substantive―we may put to contain or constrain errant behaviours, individuals will follow their own rules, those they find working and beneficial to them when making those decisions. It also means that incentives for individuals to act in certain ways lie within those individuals―self-interest.

 

We have seen politicians, sometimes aided by church leaders, chiefs, name them, work to manipulate both procedural and substantive rules in Malawi. We have seen how laws which had been entrenched at the formation of our Constitution being flouted, being changed willy-nilly. Over the years, we have seen how systems and institutions meant to serve the rule of law have been used to subvert the very rule of law―courts being used to punish innocent dissent, institutions targeting those without power, especially those in the opposition.

 

So, what is the argument here? Well, we should be careful when we carelessly cite the rule of law as a basis for defending our positions, because this same notion of “a government of laws, not of men” has been used to serve partisan interest, especially in neo-patrimonial settings like Malawi. Of course, this does not mean that we should disregard the concept of the rule of law altogether, but that we must exercise caution lest we should encourage investing too much power in those in power who may use it to serve self-interest. This is important because institutions we put in place to ensure that democracy is serving the people are largely in the hands of the elites. Thus, “while democracy is a procedure that includes and involves all citizens, the rule of law is much more of an elite-driven affair” (Linder, Bächtiger & Lutz, 2008).

 

To check against contexts where the rule of law may begin to serve interests other than those of justice as is often the case in neo-patrimonial contexts, this discussion adopts a robust architecture. In this architecture, the rule of law is just one of the many important notions. Thus, I adopt the core elements or core constituents of good governance, also called democratic governance, as presented by the United Nations Development Program (2009) as cited in Mudacumura (2014, p. 2), namely “participation, rule of law, transparency, responsiveness, consensus orientation, equity, effectiveness and efficiency, accountability and strategic vision.”

 

Adoption of this robust framework allows the discussion to approach the question of good governance by considering the core characteristics of good governance, and this makes the definition robust rather than limited. This aligns with one of the underlying assumptions of this discussion, namely efforts aimed at good governance or democratic governance must strive to meet these core characteristics of democratic governance. By extension, the more of these a policy measure or instrument meets, the better that policy instrument, and so, the quicker we must adopt that policy tool. To put it in more clear terms, the exercise of prudence in a public administrator would advise him or her to go for a policy instrument that is able to achieve more of these core constituents. And so, if I would speak without contradiction, I am for the amnesty-to-corrupt-offence route because it is the only path, controversial and difficult though, that promises to achieve the majority of core democratic elements, including the rule of law, the consensus route. In my opinion, a mechanism that would efficiently (timely and quickly) facilitate return of property to the people should be adopted. What is the use spending billions to secure a million in the end? Economic analysis of law would never support such an inefficient approach.

 

The second reason my conviction sides with the 57%, that is, those advocating the use of the legal instrument of amnesty to deal with the endemic and systemic problem of corruption in Malawi is that our current approach to the fight against corruption has adopted with diligence initiatives designed in the West for use on Malawi in Africa. This is not wrong per se, but when adopting policy instruments, we must remind ourselves that context matters. In other words, “fuller understanding of the broader context within which policy works should help policy-makers both when thinking about possible approaches to tackling a given problem and when they come to consider putting a particular solution into effect” (A Practical Guide to Policy Making in Northern Ireland, n.d., p. 9).

 

It is the same reason, that is, searching for a robust approach to issues, that has persuaded me to adopt a definition of corruption that takes into account many facets of the local context. This paper therefore defines corruption in the fashion of Johnston (1996) as cited in Kroeze, Vitória and Geltner (2018), namely “the abuse, according to the legal or social standards constituting a society’s system of public order, of a public role or resource for private benefit” (p. 2).

 

Kroeze, Vitória and Geltner tout this definition for being more encompassing. The three researchers thus observe that this definition demonstrates that corruption “can be both legally and socially defined” (p. 2). This definition is in tandem with the current approach to the fight against corruption, namely use of an assortment of strategies rather than the ‘one size fits all’ approach espoused in the fight against crime in Malawi currently.

 

The people who argue that granting amnesty on economic crimes will serve no purpose whatsoever in Malawi apart from promoting impunity base their arguments on the theory of legal punishment where the state invokes its authority in order to inflict pain, deprivation, or some other form of suffering upon the offender (Tunick, 1992, p. 2). Basically, there are two broad views to punishment: one view espoused by the utilitarians, the other by retributivists.

 

According to Tunick (1992), the utilitarian believes that “we punish to deter future crime, or incapacitate the dangerous criminal, or perhaps reform him, but, in any case, that we punish for some future good, or to augment social utility, and that in punishing we are, and should be, guided by the principle that we should augment pleasure and decrease pain” (p. 14). On the other hand, the retributivist “believes that we punish to mete out justice, express society’s righteous anger and condemnation, and vindicate right, and that in punishing we are, and should be, guided by the principle that we should punish only when doing so serves justice and right” (Tunick, p. 14).

 

According to Hallevy (2013), “retribution is the most ancient purpose of punishment in criminal law [and] is based on the feeling of revenge [to the extent that] in modern criminal law retribution embodies the contemporary expression of the ancient feeling of revenge” (p. 16). Hallevy adds that in modern times, vendetta, lynch, or lethal duel are based on this concept―revenge―kind of lex talionis―an eye for an eye―punishing the same organ that caused the offense―suffering for suffering.

 

When one considers the question of corruption, the majority of the people submit to punitive strategies. On this, Genger (2018) writes that “punitive strategies strongly recommend that all recovered loots and illegal funds be returned and re-circled into the economy. In addition, the strategies encourage whistleblowers (the press) to be firm in this struggle” (p. 22). For such people, granting amnesty to corruption crimes is simply unheard of. However, such people seem to overlook one important question in this war, namely whether our insistence on punitive strategies has produced the desired results. This paper will demonstrate that the reason we espouse punitive strategies at the expense of alternative instruments is that we fail to understand the multi-dimensional nature of crime and the importance of context when fighting economic crimes or when developing and implementing any policy instrument. Even the OECD itself, takes cognizance of this reality. Thus, “in addressing corruption and good governance, the OECD takes a multidisciplinary approach which includes fighting bribery of foreign public officials, combating corruption in fiscal policy, public and private sector governance and development aid and export credits” (OECD, 2011, p. 3).

 

Similarly, as I have already demonstrated, those who blame amnesty for being in direct contradiction of the object of the rule of law seem deprived of what the rule of law actually means. According to Bingham (2011), the coining of the expression ‘the rule of law’ is attributed to Professor A. V. Dicey, the Vinerian Professor of English Law at Oxford. Bingham writes that Professor Dicey first used the expression in his work An Introduction to the Study of the Law of the Constitution, published in 1885. Bingham, however, points out that although Professor Dicey had coined this expression, the idea of ‘the rule of law’ traces to Aristotle.

 

Dicey gave three meanings of the rule of law. First, ‘that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.’ By this, so says Bingham (2011), Professor Dicey meant that when we say someone has broken some rule, it must never be a rule dreamt up by some clever official in order to convict or punish someone; it must be for a proven breach of the established law of the land. Thus, “it must be a breach established before the ordinary courts of the land, not a tribunal of members picked to do the government’s bidding, lacking the independence and impartiality which are expected of judges” (Bingham, 2011, p. 13).

 

Does the neo-patrimonially weak and captured context in African governance proffer this neutral context? I doubt.

 

Bingham quotes the second meaning of the notion of the rule of law according to Professor Dicey as being that every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. What this means is that no one is above the law, and all are subject to the same law administered in the same courts.

 

When the question of rule of law is emphasised without due regard to context, unintended consequences result. Developments in South Africa are proving this correct.

 

On January 7, this year, Ms Lindiwe Sisulu, South Africa’s Minister of Tourism, lashed out at the country’s Constitution, asking whether the “rule of law” has served to truly emancipate the South African poor (see “Hi Mzansi, have we seen justice?”). Her argument is that indigenous South Africans succumbed to “rule of law” since apartheid was “legal” just as the Jim Craw laws in the United States, and colonialism were. For her the poor South Africans are the victims of this “rule of law”.

 

Ms Lindiwe characterises colonialism, even in its current disguised form, as “organised crime, the robbery of other people’s land and resources, as well as the exploitation and use of their labour” (para 4). For her, the South African Constitution, she compares it to Panadol, has legitimised all that wrongdoing under the “rule of law”. In her world, the Truth and Reconciliation Commission headed by Desmond Tutu did not go far: what South Africa needs today is economic reconciliation.

 

Ms Lindiwe is forthright (para 7):

 

What we have instead witnessed under a supreme constitution and the rule of law since 1994 has been the co-option and invitation of political power brokers to the dinner table, whose job is to keep the masses quiet in their sufferance while they dine caviar with colonised capital (CC).

 

If people like Lindiwe, a Minister in Cyril Ramaphosa’s Government, can take the boldness this bold, something must be wrong with the so called rule of law when it applies to poor South Africans. No wonder, the President quickly met her and offered a statement. According to the President, he had “specifically admonished the Minister about her attack on the judiciary when she said: “Today, in the high echelons of our judicial system are those mentally colonised Africans, who have settled with the worldview and mindset of those who have dispossessed their ancestors.” Ms Lindiwe, however, quickly disowned the apology, saying she stands by her words.

 

Ms Lindiwe is daughter to apartheid icons Walter Sisulu and Albertina Sisulu, and she is a member of the ruling African National Congress (ANC). This speaks volume of the direction politics in South Africa is taking, something, I feel, requires serious dialogue outside the formal setting of courts. In short, a political answer is seriously required in this political question.

 

Would I say the same of Malawi? Well, some have claimed judges have had school fees paid for their wards. I have heard of people boasting they paid school fees for some judges now in high places in this country. The audio circulating on the social media where the current Anti-Corruption Bureau Czar was airing her heart out to a “confidante” has demonstrated that even she herself does not have all the faith in some members of the judiciary. What does all this mean? Well, that somewhere the pail is leaking, leaking heavily, that we must do something to bring sanity to the fight against corruption in this country; but do we have that answer?

 

Well, the question of amnesty is the best starting point, a handy one.

 

Sometimes I feel like the people who see no sense in amnesty do not understand the magnitude of the problem. In Malawi, some culprits are keeping the Joker in their lockers, some against people sitting in judgement. Do we have to wait until someone points at the bench itself like was the case in the Hansie Cronje story in South Africa?

 

Robinson and Parry (2018) narrate a story involving Hansie Cronje, captain of a South African cricket team unbeaten in 14 tests and considered by many one of the greatest cricket players of his generation. Robinson and Parry write that this hero, he offered England a chance to win the final test of their 1999–2000 tour of South Africa, was later found (by the ‘King Commission’) to have benefited from a payment of £5,000 and a leather jacket to ensure a result had favoured England in that context. What is more moving is that the Commission itself is blamed for failing to get to the bottom of things. Cronje died on July 1, 2002 in an air crash which some said was non-accidental. It is also argued that if the full truth were known it would be catastrophic, no wonder both administrators and players had kept quiet about it. According to Robinson and Parry (citing Murt, 2003), no sooner had the explosive revelations began to come out than the King Commission closed shop.

 

Malawi should not wait for explosive waves to hit the vessel. We can, as a nation, begin to debate these issues and arrive at some consensus without destroying each other.

 

In Malawi, corruption is now so intertwined with our custom or daily life, you can never tell whether you are aiding and abetting in the vice. In his speech to the Nation, on the Anti-Corruption Bureau, on Monday, January 24, 2022, the Head of State, Dr Lazarus Chakwera alluded to this:

 

I believe this army of Malawians of courage and integrity exists, and if you consider yourself to be in its ranks, your time to shine your light and expose the darkness of corruption has come. Shining your light means pointing out those who paid or received bribes or demanded bribes. But it also means admitting that corruption is so deep in our country that many of us may have benefitted from its proceeds without even knowing it. It means admitting that we all need to be more vigilant about where the money we spend comes from. Because at this point, few of us can guarantee that none of the funds donated by foreigners, or used to pay for our education, or our political campaigns, or our wedding reception, or our funeral ceremonies, or our church buildings, or our shopping, or our travel, came from acts of corruption. …

But as you shine your light, be sure to take great pains to always conduct yourself professionally, ethically, collaboratively, and legally. Malawi simply cannot afford to lose your light because of a careless mistake or because you exposed yourself to evil people who will not hesitate to betray you or use you to descend Malawi into chaos. (Throughout, emphasis mine.)

 

From what the President has alluded to, are you surprised political parties in this country have gone 27 good years without being audited? Well, according to “Political parties go 27 years unaudited” by Mandy Pondani, the office of the Auditor General recently disclosed that in the last 27 years political parties that receive government funds through Parliament have never seen an auditor, a clear violation of provisions of the Public Finance Management Act.

 

Interestingly, all beneficiary political parties in the country admitted to this, claiming they lack money to pay auditors. Interestingly, they boast top-of-the-range vehicles these political parties. Perhaps they just lack commitment to tenets of our democracy. Now, if something as simple as auditing for funds from Parliament, something we all know about, presents something of a burden, a task impossible, what is it that political parties in Malawi keep that would beat our imagination if it came to the fore? Well, we can never know; we can only speculate.

 

According to Rose-Ackerman (2012), “private wealth influences public choices in many legal ways, such as campaign contributions, lobbying expenses, financial conflicts of interests, consultancy payments to the politically connected, and public relations campaigns designed to influence public opinion on particular issues” (p. 32). For her, “crackdowns on political corruption should be complemented by increased transparency of campaign funding, or a move toward public financing. Limiting the role of money in politics requires a holistic approach that covers legal as well as illegal funds” (p. 32).

 

In Malawi, the situation is so complex, very few among us can claim absolute uprightness. In such a setting, who do we trust to steady the ship? Amnesty, the sort of amnesty that comes from the people, should give us a starting point. I do not think the President is against this people-centric move; I think what he is against is that it should come from the elite with little or no contributions from the people themselves. Or perhaps I quoted him wrong when he said (in his January 24 speech):

 

… I have directed the Minister of Justice to inform the Attorney General that I do not support the offer of amnesty to those who defrauded Government and the Malawian people. Although the idea of an amnesty was a campaign promise enshrined in our manifesto as a way of speedily recovering Government’s stolen assets, it cannot be effected without a clear legislative framework that allows it to be implemented lawfully and without appearing soft on corruption. The Minister of Justice is thus on instruction to review this policy and work with the Attorney General in designing a sound alternative for recovering Malawi’s stolen treasure. (Emphasis mine.)

 

What does this mean? Well, that any idea on amnesty must come from representatives of the people. The assumption is that the MPs will have first consulted their constituents so that we will adopt an instrument that is informed by consensus. Remember, “laws expressed by acts and legislative instruments can only be truly effective if they rest on broad societal support [and this is because] a transparent and inclusive legislative process functions as a kind of democratic check on government action: it guarantees sufficient deliberative activity before a government may act” (Voermans, ten Napel & Passchier, 2016, p. 279).

 

Here, the President is not asking lawyers, unless my knowledge of discourse analysis Late Hankon Kamwendo, our beloved Professor, taught us long ago in that great linguistics class, has left me instantly. The President has floated the idea for the people to debate on, after all this gentleman, as someone with background in philosophy, believes in debate. In fact, in his January 24 speech, he makes mention of this when he says, “I consider that debate to be healthy, because Ms Chizuma’s conduct, or the conduct of any public officer, is neither infallible nor beyond scrutiny nor above the law.”

 

The debate the President is talking about is whether Ms Chizuma, Malawi Chief Corruption Fighter, had not offended principles of a public officer when she lampooned some members of the judiciary, church, and others, for condoning corruption in the country. This was contained in an audio in which she was pouring her frustrations over lack of support from various offices in the country, sections she says are working to derail her efforts or are not doing enough to support her efforts.

 

Perhaps you would want my position on this. Well, the issue is in court.

 

It should be mentioned that the idea of amnesty to financial crimes has been touted in manifestos by some of the Tonse Alliance members too. For example, the United Transformation Movement of Vice-President, in its manifesto, talks of “Giv[ing] a 30-day amnesty that shall be declared for the restitution of proceeds of crimes” (p. 21). So, I am not making things after all.

 

(2) Extent and complexity of corruption

Sometimes people do not want to hear anything amnesty because they view the damage corruption has caused their people and wonder why such evil people should be given this “privilege”. What Rose and Peiffer (2019, p. vi) writes on corruption could make the dead turn in their graves:

 

Globally, an estimated 1.8 billion people annually pay a bribe to get a public service that they are entitled to receive, such as health care, or to avoid onerous regulations requiring such things as a permit to make a living as a street trader. The number of people experiencing bribery each year is so large because many of the countries viewed as practising good governance, such as the Scandinavian states, have only a few percent of the world’s population. Conversely, corruption is high in the world’s most populous countries. In India, an estimated 807 million people are caught up in bribery each year, and in the People’s Republic of China, 290 million. The 10 countries contributing the largest number of bribe payers to the global total include undemocratic countries such as Russia, as well as countries that hold free or partly free elections such as Mexico and India.

 

Van Schoor (2017), citing Rothstein and Varraich (2014) characterise corruption as a major threat to the rule of law, democracy, and human rights as it hampers economic development and endangers the stability of democratic institutions and the moral foundations of society. Van Schoor then cites a 2016 study by the International Monetary Fund which concluded that the annual cost of bribery alone worldwide is “estimated to be at about US$1.5 to US$2 trillion, which corresponds to roughly two percent of the global Gross Domestic Product (GDP).

 

Today, corruption is everywhere. An article entitled “Exclusive: Audit finds nepotism, corruption, and worse at the African Union Commission” by Rumbi Chakamba (dated February 19, 2021) gives a damning revelation about the extent of corruption even at the African Union Commission itself. Among the vices identified were issues of nepotism, unverified qualifications, recruitment, and contract anomalies.

 

A 2014 article by The Auschwitz Institute for the Prevention of Genocide and Mass Atrocities (see “Corruption and genocide: Lessons from Rwanda”, dated April 18, 2014) presents a link between corruption and the genocide that happened in Rwanda in 1994. The article writes of Rwanda that, among many factors, a combination of corruption, political tensions and economic failure had precipitated that most horrific genocide of the modern era (para 5).

 

In Silent accomplice: The untold story of France’s role in the Rwandan Genocide, Andrew Wallis demonstrates that with the economy of Rwanda hard hit by declining coffee and tea prices, drought and shutting down of mines, in the late 1980s, President Habyarimana’s family and friends grew rich in power and became addicted to corruption which was prevalent in every area of the country’s political life (2006, p. 17). Something that went beyond the nepotism scale was going on in Rwanda. In fact Wallis writes: “An ‘apartheid’ system was savagely enforced, even keeping Hutu and Tutsi children apart at school and making sure only the former could later gain government or professional employment” (p. 18).

 

It is also said that when details of corruption scandals in Habyarimana’s government leaked out, the regime simulated motor vehicle accidents, where critics were run over or killed (Gourevitch, 2011, p. 55). In fact, the whole reason the Rwandese Patriotic Front, a rebel army mostly by Rwandese refugees in Uganda, attacked Habyarimana’s regime from October 1, 1990, was to set up a political programme that sought to end tyranny, corruption and the ideology of exclusion which generates refugees (p. 56).

 

Some people do not want to hear anything amnesty because they fail to appreciate the complexity of this concept. This is because, for a number of reasons, corruption is elusive. First, it “is a transnational governance challenge that is very difficult for any government to tackle (Rasche, 2012, p. 679; Scherer & Palazzo, 2008, p. 423). Second, corruption is a phenomenon that is difficult to grasp as it occurs in so many different forms. Third, the sheer magnitude of corruption and the profound negative consequences that creep into all spheres of society make corruption one of the great challenges of this epoch” (Van Schoor, 2017, p. 11).

 

Although this complexity forces many to resignation, this situation does, in fact, present us with an opportunity to employ an assortment of strategies rather than punitive strategies and policies alone. Manacorda (2014, p. 14), for example, has argued on the problem of overreliance on the punitive strategy, observing:

 

Corruption has become an area in which it is appropriate to test forms of intervention that are complementary or alternative to criminalization. This is a result of the paradox that within this field there is an abundance of punitive measures, but these have demonstrated a high level of inefficacy. The alternative modes of intervention are characterized by a combination of punitive and preventive measures, and also include responses of a civil and administrative nature which are aimed at reparation and prevention.

 

This discussion encourages use of all the bureaucratic strategies alongside other innovations, for example, restorative justice of which amnesty is one. Amnesty also promises efficiency in recovery of stolen assets.

 

Macroeconomists have condemned corruption for eating into development expenditure due to the inefficiencies and ineffectiveness that national corruption may have on economic growth (Rose & Peiffer, 2019, p. 127). Would one not be forgiven to attribute the fight against corruption to inefficiency if it takes a decade to prosecute a single high-profile case involving some Government Rich? Would it not be better to strike a deal and see some of the assets returned within a short period (of time)?

 

This discussion was my contribution towards this “designing a sound alternative for recovering Malawi’s stolen treasure,” to quote the President in his January 24 speech. Because, like it not, this treasure must be given back to the people but there must be a proper mechanism, one that will be built on consensus and efficiency. This property must also be returned through a manner that reflects justice in its pristine state. If not, those in power today will someday ask why they had not seized on the opportunity to start afresh with the mandate or backing of the people.

 

Today an opportunity has presented itself before us to debate these issues yet those who should have been leading in this noble endeavour have abandoned post, leaving us who know not our left hand from our right to purloin the debate with our jaundiced opinions. Like it or not, this time next year this issue shall return, now as a political campaign tool, beginning of another cycle.

 

We must never hide behind the so-called rule of law to run away from our duty to debate on this important matter. The topic of amnesty is always controversial; understandably, its debate must likewise be controversial. After all, that is what amnesty itself does, for it is “an extraordinary legal measure whose primary function is to remove the prospect and consequences of criminal liability for designated individuals or classes of persons in respect of designated types of offenses irrespective of whether the persons concerned have been tried for such offenses in a court of law” (Freeman, 2009, p. 13).

 

I doubt whether what is happening in Malawi on many issues constitutes rule of law. It is important to note that formal law is usually applied first to non-elites (“rule by law”); the shift to “rule of law” occurs when the elites themselves accept the law’s limitations” (The World Bank World Development Report 2017: Governance and the law, p. 15). I think what this means is that, unless the rich come to a realisation that formal law won’t account for every problem, and that a people need to collectively come together to address issues that concern them, rule of law remains elusive.

 

Moreover, rule of law constitutes many things, but at least it entails that the supremacy of regular as opposed to arbitrary power in that all citizens, including those in power, must respect the rule of law or simply the supremacy of law. Thus, “at its core, a government based on the rule of law is subject to regulation by law in its exercise of power” (Ma & Wang, 2018, p. 1). But does it work like this in neo-patrimonial settings?

 

Some have argued that amnesty does not have precedent in Malawi. Well, if by precedent they look to court alone, no, there isn’t. But, if we look at our history, well, the General Amnesty Act (Cap. 14:05) does give us some guidance. We can mould something after that pattern, something context-based, something that employs flexibility for the good of Malawi. This won’t happen because we are assembling on the street, or demanding some resignation; it will happen because we want to see things change through negotiation as equals to reach a consensus as a nation.

 

Recommendations

First, engage legislative overhaul to change the structure of the Anti-Corruption Bureau to align with the context of Malawi in the twenty-first century. For me, giving a single person the huge responsibility to run a body entrusted with that huge responsibility in a terrain ruled by neo-patrimonialism, clientelism and strong tribal allegiance, is an accident waiting to happen. The structure we have today lacks consensus and is prone to manipulation. The ACB needed decision by committee, that is, required a team, a commission of sorts, guided by men and women of integrity, two of which with law background. Let that group comprise professionals from public administration and political science as well so that the reasoning there takes into account all the three facets of governance―law, management, and politics. What we have today is an institution that lacks a balance; its eyes are set on the so-called rule of law, something that is subject to abuse in a context like Malawi where consolidation of democracy remains a fickle wish.

 

Performance of most institutions and structures in a democracy will depend on the level at which a country’s democracy is. You do not expect perfection in the fight against corruption when you are failing to institute open governance structures. This is why I have always advocated institution of a sunshine atmosphere in Malawi. If you take a live fish out of water, it will live for a while, but it will soon succumb. Fighting corruption without the architecture on which the fight should rest is problematic. My second recommendation, therefore, is that Malawi should establish a whole ministry whose job will be to ensure true openness of our institutions. This will specifically help in implementing issues of access to public information, declaration of assets, facilitation of debate among Malawians on issues affecting them, and things national unity. One would say, But we have the Ministry of National Unity in the country. We do, yes, but it is an institution that was established with an eye to limit damage rather than heal the broken terrain. Honestly, if that institution was serious about healing a polarised Malawi, the first thing it should have done would have been inviting and bringing all Malawians together to heal the damage many suffered during the demonstrations against the Peter Mutharika regime and the Malawi Electoral Commission. When that failed to happen, I doubted the rationale for this public entity.

 

Malawi requires healing for this simple reason: there must come a time when a people have to confront history and devise a way to heal. From that point (on), a nation starts afresh. If not, history has a very strong memory and has a way to repeat itself, viciously, most of the times. This is one of the reasons I support amnesty on corruption crimes: there should come a time when a nation must start afresh.

 

Malawi lacks strong civil society architecture that should complement the justice system in matters involving prosecution. In Malawi, when someone is condemned by our courts, even on flimsy evidence, the possibility for him or her to raise a voice against that injustice is almost zero. We have seen crimes that represented political revenge rather than justice pass with no one raising a voice to ask. No one can because neo-patrimonial system has many avenues through which it can exact revenge or vengeance on those dissenting. The easiest and most painful is tampering with your economic sustenance. A critic will very easily lose his or her job, and no one will say anything over that.

 

In America, there are strong independent organisations, for example, the Innocent Project founded in 1992 by two wonderful lawyers (Barry C. Scheck and Peter J, Neufeld) with a heart to serve humanity. Their website (innocentproject.org) gives the following as the object of the organization: to free the innocent, prevent wrongful convictions, and create fair, compassionate, and equitable systems of justice for everyone. In most African countries, men and women who stand up in the fight against true injustice get condemned and destroyed in the most ruthless fashion, and people mourn them and blame them for fighting authorities. In this fashion, our democracy heads to the grave.

 

I know someone will say, But we have an independent judiciary here.

 

Well, thank you very much, but remember: in matters of justice, it is good insurance not to trust people too much because even human rights itself, this “lingua franca of global moral discourse” (Andreopoulos & Arat, 2014, p. 3., citing Beitz & Goodin, 2009, p. 1), can be abused and misused.

 

My recommendation therefore is that our leaders must encourage honest debate on issues and respect those who take a contrary view. We will gain more as a nation this way.

 

Lastly, let political scientists in the country devise funding alternatives to political parties. The mechanisms we have in the country restrict politicians too much. There should be a mechanism which should allow political parties which meet a certain threshold to benefit from some business to a defined limit. That will ensure that all political parties that meet that threshold will have some money for campaign. If not, then a super businessman will come and capture them in advance so that when they take over power, this business person should recoup with a trillion interest the “investment”.

 

In America parties have known powerful financiers. We do not have that type of business persons locally. Where do we expect these political parties to extract money from? We can, as a nation, devise something that will see all of them benefit in some way from some business within the territory. I know it will sound controversial. I would rather adopt this controversial strategy than pretend that politicians won’t solicit money, inviting themselves to be captured.

 

In my opinion, the Political Parties Act is a naïve piece of legislation that assumes Malawi is America. Let us be honest and address all the matters that concern us the robust way.

 

Conclusion

The approach we took on amnesty for people involved in corruption invited a lot of suspicion because it was top-bottom, rather than bottom-up. A debate like that should not have started from the upper echelons of power, the Attorney General, as that gave the impression the initiative was coined to shield present Tonse Government corrupt officials. In this way, it lacked the voice or contribution of the masses and hence devoid of legitimacy. Moreover, the appropriate ministry to have initiated this move should have been that of National Unity, and not, as was the case here, the Attorney General.

 

This discussion has demonstrated that the first reason many fail to appreciate amnesty on corruption crimes is that many still espouse the initiatives designed in the West, a completely different context, to apply to Africa, Malawi, to be precise, a yet completely different context. There is a limit to which this can work. This I say because neo-patrimonialism has its own way of hijacking matters for its own benefit, to perpetuate power.

 

The paper has also demonstrated that the legal instrument of amnesty initiated by the people and discussed and adopted by the legislature promises to meet as many core democratic constituents (rather than a select few as does the hardline approach the West makes us believe will do the job for Africa and Malawi) as possible.

 

The discussion has also demonstrated that corruption has affected every level of society in Africa, right from the brain of the Continent itself―the African Union Commission―to national legislatures, judges, the executive, to the lower bases of society―messengers, clerks, market fee collectors, tinsmiths, name it. This discussion concludes that such a malaise requires nothing but a complete overhaul of systems, not merely changing people in offices. For me, nothing but amnesty on corruption crimes offers the sure-fire solution for this bleeding nation to start afresh. From then on, it will make sense to let the implementation of our corruption legislation grip vice-like and bite serpent-like. I believe that there comes a time in a nation when a demarcation must be made to break away with the past in order to forge a negotiated future. I find no better time and better mechanism to achieve this than applying this legal instrument―amnesty―today. It is a difficult subject, understandably controversial, one people would be happy to keep away from, but aren’t crises there for a people to deal with head on? I think this is the safest route for our national consensus to carve for ourselves a free and peaceful environment for both our time and that of our children and their children.

 

I love my country.

 

GOD bless this Great Nation.

 

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