Malawi Attorney General giving himself powers he does not have, says law professor

A professor of law says Attorney General Thabo Chakaka Nyirenda is claiming amnesty powers which he does not have at law and which will allow him to be legislator, criminal investigator, prosecutor and judge.

According to the law professor, Nyirenda, if allowed to go ahead with the amnesty plans, will have the freedom to sell prosecutions to the highest bidder.

Professor Danwood Chirwa of University of Cape Town in South Africa, made the remarks in reaction to a press conference which Nyirenda held yesterday to clarify the decision to issue a 60-day amnesty allowing corruption suspects to refund stolen money.

Nyirenda during the briefing insisted that the amnesty is supported by the law and that it is aimed at recovering funds while reducing backlog of cases.

However, Chirwa said the amnesty offered by Nyirenda is not supported by law. He also noted that the AG was confusing amnesty with immunity from prosecution in exchange for cooperation in investigations or prosecutions, and with a plea bargain.

“By claiming amnesty powers he doesn’t have at law, the AG is acting in a realm of his own imagination which will allow him to be legislator, criminal investigator, prosecutor and judge —in short, a god! Without relevant law to regulate such awesome powers, he will trump up rules at his whim as he did today, and decide who to give amnesty, who not to, when, what offences, etc, without any check by the courts or other appropriate body,” said Chirwa.

On Nyirenda’s claim that amnesty will result in government recouping its lost money, Chirwa described the argument as “a populist move wrapped in manifestly illogical reasoning”.

He added that Nyirenda assumes that the stolen money is in someone’s banks somewhere, unspent or invested, not already blown away or dissipated, and it can be readily be given back.

“This is at best naive, and at worst foolish. Moreover, the law is clear that restitution is not a substitute for an appropriate sentence for criminal behaviour. At most, it can be taken into account in reducing a prison term,” said Chirwa.

During the press briefing, Nyirenda noted that some corruption cases have dragged on for years without conclusion and there have been cases where suspects, after being acquitted, have gone on to sue government. He then argued that the amnesty will lead to conclusion of some cases and reduction of cases.

But Chirwa said Nyirenda has already advertised that he has no evidence to prosecute the culprits hence there is no reason why some suspects would come forward to incriminate themselves.

He said: “The truth is that you can only force a suspect to confess if you have evidence that could land them in jail.

“If he has no evidence of who was involved and their roles, then he cannot determine how much each person stole and how much they must be required to pay back. In turn he cannot account to the public how much he has collected against how much was actually lost.

“If he knows how much was stolen and some of the players involved, then he must have a basis for such knowledge. He must use that knowledge to carry out further investigations or at least prosecute those against whom there’s evidence,” said Chirwa.