Based on the evidence compiled in the leaked Anti-Corruption Bureau (ACB) report, the graft body will have a tough time to convince a judge to convict either Pioneer Investments or President Peter Mutharika in the highly publicised Malawi Police Service food ration deal, a former State prosecutor has said.
The prosecutor, who is now retired and is now a law lecturer at a private university, says based on the evidence he has seen and on the sequence of correspondence between the parties involved makes it hard for the prosecution to build a solid case.
“Look here, the evidence that we have seen in the leaked report seems to be conclusive because if the ACB had additional evidence, it would have been included in the report. So my opinion is based on premise that this is the only evidence the ACB has on its body,” he said.
The prosecutor explained that while the evidence that the ACB gathered hints at misprocurement in the manner in which the contract was awarded, the report does not provide concrete evidence to pinpoint at the crime.
“Convicting a crime in the justice system is based on the notion of providing evidence to show, beyond reasonable doubt, that someone committed the crime. The evidence before us does not do that,” he said, pointing to the gaping holes in the ACB report.
“What the investigators did was to cherry-pick evidence that makes Pioneer Investments look guilty without really giving us the whole picture. You can tell from the report that the investigators already had a guilty verdict in mind. They were not fair and reasonable,” he said.
According to the prosecutor explained that the three grounds for conviction all lack ‘conviction’.
“For a start their main case is that the supplier demanded an increment of 20 percent on the contract price based on the depreciation of the Kwacha. The supporting documents that MPS used to support this increment from Treasury states indicates that the Kwacha actually depreciated 26 percent from the time the contract was awarded to the time the payment was made. So the claim could have been valid on these grounds,” he said.
He added that although the Public Procurement Act states that there should be no adjustment on the contract price, delays on the part of government machinery versus an unstable Kwacha make it impossible to adhere to the Act.
“Are Pioneer Investments the first ones to alter the contract price since the Act was amended? Of course not. I have evidence which I can flush out to show that scores of other supplies have altered their prices after the contract has been signed. So we can’t start pointing fingers at him now because a precedent has been set,” he said.
The second charge the Pioneer Investments face was on charging interest owing to delays in payment?
“How is charging interest on an invoice an crime? It’s a basic accounting principle. If you have taken out loan to supply goods and the client is taking too long to pay, you push the cost of the accruing interest onto the client. Simple accounting. It’s nothing sophisticated. Besides, are Pioneer Investments the first to charge interest on an invoice? So why are people acting surprised?”
The prosecutor also crushed the prosecution’s third charge, that Pioneer Investment’s K145 million donation to the DPP was fraudulent.
“Since when has it been a crime for someone to donate money to someone or to an institution? The charge against Pioneer Investments is that they wrote out the cheque a day after they received their payment from the Police ration deal? So what? Maybe they had pledged that amount to the party and they were only able to pay out the some once they received the payment from government. There is no crime there.
“If the ACB wants to prosecute on those grounds, they have to establish first, that the DPP or the president had an influence over the contract. Otherwise they are wasting their time,” he said.
The prosecutor says if anyone wants to make donating money to DPP a crime, then they should level the playing field by strengthening the law and ensuring that the law applies to all parties.
“He who seeks equity should come with clean hands. We have to make sure that this works for everyone. Even UTM, where are they getting the money to print all that party cloth and cars? You think that money is clean money?”
The prosecutor hinted that the delay by the ACB to prosecute the case could be based on the fact that they realise that they have a weak case.
“They are under so much pressure to prosecute this case. If they had a solid case, it would already have come before the courts. So maybe they realise afterall that they have a weak case,” he said.