Combating Corruption and Enhancing the Rule of Law: A Critical Analysis

of the Proposed Asset and Financial Disclosure Law for Politicians and Public

Officials in Malawi

Austin Bwagadu Boli Msowoya

[Student Number: 00057604901]

Seminar Paper submitted in partial fulfillment of the requirements of the

Degree of Master of Laws, Democratic Governance and Rule of Law

[April, 2008]

i

Table of Contents I. Introduction ........................................................................................................................................... 1

II. Overview of the Proposed Asset and Business Interests Disclosure Law ............................................ 5

III. Theory and Legislative Reform: Lessons from Other Jurisdictions ................................................. 7

1. General and Substantive Provisions .................................................................................................. 9

a) Code of Ethics ............................................................................................................................. 10

b) Scope of Application ................................................................................................................... 14

c) Forms of Corruption in Malawi’s Public Sector ........................................................................ 19

2. Procedure and Enforcement ............................................................................................................ 21

a) When to File ................................................................................................................................ 21

b) Contents of Disclosure Statements .............................................................................................. 23

c) Retention Periods ........................................................................................................................ 25

d) Public Access .............................................................................................................................. 25

e) Penalties and Sanctions .............................................................................................................. 26

3. Institutional Framework .................................................................................................................. 28

4. Whistleblower Protection ................................................................................................................ 30

IV. Recommendations ........................................................................................................................... 31

V. Conclusion .......................................................................................................................................... 35

1

I. Introduction

Politicians and public officials in many African countries often use their positions to

accumulate unimaginable wealth through insidious abuse of public resources for private gain.1

Corruption itself has reached calamitous proportions in Africa, severely undermining economic

growth and devastating the delivery of public services.2 Unethical behavior has seriously

compromised the integrity of politicians and public officials; persistent grand corruption and

bureaucratic bribery3 have led to the corrosion of confidence and trust in public institutions.

4 If

1 For seminal discussions on corrupt accumulation of wealth by public officials in Africa, see generally

Constanze Bauer, „Public Sector Corruption and its Control in South Africa,‟ in CORRUPTION AND

DEVELOPMENT IN AFRICA: LESSONS FROM COUNTRY CASE STUDIES, 218-229 (Kempe Ronald Hope,

Sr., & Bornwell C. Chikulo, eds., 2000); SUSAN ROSE-ACKERMAN, CORRUPTION AND GOVERNMENT:

CAUSES, CONSEQUENCES AND REFORM, 9-38 (1999); Mobutu Sese Seko of Zaire, US$5 billion (1965-

1997) and Sani Abacha of Nigeria, US$ 2-5 billion (1993-1998) are among the most notoriously corrupt

leaders in the world who accumulated unimaginable wealth during their respective reign in spite of the

poverty in their countries, see http://www.u4.no/themes/political-corruption/introduction.cfm (last

accessed on March 8, 2008). 2 See Francis Xavier Musonda, „The Effective Administration of Criminal Justice for the Prevention of

Corruption by Public Officials,‟ in CORRUPTION, DEMOCRACY AND GOOD GOVERNANCE IN AFRICA:

ESSAYS ON ACCOUNTABILITY AND ETHICAL BEHAVIOUR, 56-61 (Kwame Fringpong & Gloria

Jacques, eds., 1999). 3 Sam Mpasu, a former Minister in the United Democratic Front (UDF) Government in Malawi, was

implicated in a multi million-dollar scandal involving the procurement of pencils from a British firm.

Charged with flouting government procedures, he was convicted on April 8, 2008 and sentenced to six

years in jail; see The State –v- Sam Mpasu, Crim. Cas. No. 17 of 2005 (Unrep., Judgment & Order of

Sentence on file with Author); see also AFRICAN PATH, April 8, 2008, available at

http://www.africanpath.com/p_blogEntry.cfm?blogEntryID=4338 (last accessed on April 10, 2008)

(reporting Mpasu‟s conviction and sentence); The Muluzi Government was also compelled to dismiss

Dennis Kambalame, Chief Executive at the country‟s only petroleum importing government-controlled

corporation, for mismanagement, abuse of office and graft that resulted in a loss of $14m, see AFRICA

RESEARCH BULLETIN: POLITICAL, SOCIAL AND CULTURAL SERIES, Nov.1st-30th 2000, Vol. 37 Issue

11 Page 14181B, (Published Dec. 21, 2000), available at http://www.blackwell-

synergy.com/doi/abs/10.1111/1467-825X.00119 (last accessed on April 4, 2008); Dennis Kambalame is

still serving a sentence of six years imprisonment, see Dingiswayo Madise, „Challenges in the Fight

Against Corruption in Malawi: Some Thoughts,‟ 4, Paper presented to a meeting on Deepening the

Judiciary‟s Effectiveness in Combating Corruption, UNECA, Addis Ababa, Ethiopia, Nov. 19-23, 2007)

available at http://www.uneca.org/dpmd/events/corruption/Malawi.pdf (last accessed on April 4, 2008). 4 In Zambia, Malawi‟s neighbor on the East, corruption was so rampant that a Cabinet Minister attempted

to cash a government check made out in his name for US$165000.00 ostensibly to pay printing

2

development efforts are to reverse the trend at all, it is imperative that the control and eradication

of endemic and systemic corruption in the region take compelling primacy and urgency.5

In attempts to eschew unethical behavior among politicians and public officials, many

African polities have promulgated and implemented asset and financial disclosure laws.6 These

laws are intended to restore integrity and accountability by subjecting politicians and public

officials to public scrutiny, thereby increasing confidence and trust in the public sector and

government institutions.7 Malawi, grappling with reform initiatives of its own to reduce and

eliminate corruption, has developed an asset and business interest disclosure law for politicians

and public officials.8 A Special Law Commission on the Development of Legislation on

companies contracted to undertake printing contracts for his ministry, see Bornwell C. Chikulo,

„Corruption and Accumulation in Zambia,‟ in CORRUPTION AND DEVELOPMENT IN AFRICA: LESSONS

FROM COUNTRY CASE STUDIES, supra note 1 at 161, 165-171. 5 See Kempe Ronald Hope, Sr & Bonwell C. Chikulo, „Introduction,‟ in CORRUPTION AND

DEVELOPMENT IN AFRICA: LESSONS FROM COUNTRY CASE STUDIES, supra note 1 at 1; endemic and

systemic corruption has ominously pervaded public life and private enterprise in African states with

negative impacts on developmental efforts, see generally CORRUPTION, DEMOCRACY AND GOOD

GOVERNANCE IN AFRICA: ESSAYS ON ACCOUNTABILITY AND ETHICAL BEHAVIOUR, supra note 2 at

3 passim; corruption undermines constitutionalism and threatens the very notion of the rule of law.

Ronald Noble, Secretary General of Interpol, addressing the 10th International Anti-Corruption

Conference (IACC) in Prague in October 2001 said: “[T]he most sophisticated security systems, best

structures, or trained and dedicated security personnel are useless if they are undermined from the inside

by a simple act of corruption [. . .]” quoted in USAID ANTICORRUPTION STRATEGY, 8 (2005). 6 Ghana, Zambia, Tanzania, Uganda, Kenya, Botswana, South Africa and Nigeria are some of the

countries in Sub-Saharan Africa that have enacted such legislation. Most of the anti-corruption programs,

however, have been instigated at the behest of western donor agencies and financial institutions, see

generally Stephen P. Riley, „Western Policies and African Realities: the New Anti-Corruption Agenda,‟

in CORRUPTION AND DEVELOPMENT IN AFRICA: LESSONS FROM COUNTRY CASE STUDIES, supra

note 1 at 137, 139-147. 7 See Bonwell C. Chikulo, „Corruption and Accumulation in Zambia,‟ in CORRUPTION AND

DEVELOPMENT IN AFRICA: LESSONS FROM COUNTRY CASE STUDIES, supra note 1 at 161, 173; Joseph

R. A. Ayee, „Ghana: The Continuing Search for Cures in the Fight Against Corruption,‟ in CORRUPTION

AND DEVELOPMENT IN AFRICA: LESSONS FROM COUNTRY CASE STUDIES, supra 183, 189-190; Sahr

J. Kpundeh, „Controlling Corruption in Sierra Leone: an Assessment of Past Efforts and Suggestions for

the Future,‟ in CORRUPTION AND DEVELOPMENT IN AFRICA: LESSONS FROM COUNTRY CASE

STUDIES, supra 198, 213. 8 Malawi passed the Corrupt Practices Act in 1995, (Act No. 18 of 1995) and established the Anti

Corruption Bureau in March, 1997. The Bureau began operations in February, 1998; the latest high

ranking civil servant to be convicted by the Bureau was Sam Safuli, Secretary for education now serving

3

Declaration of Assets was appointed for this purpose on February 6, 2007 comprised of nine

commissioners.9 Having completed its draft report, the Special Commission is at present

conducting nation-wide consultations on its recommendations.10

The proposed disclosure law is

generally well conceived and has potential to achieve its intended objectives. However, it has

inherent conceptual and practical defects that, unless pragmatically addressed, will undermine

efforts to restore integrity among politicians and public officials.

This seminar paper reviews the proposed disclosure law and argues for its modification to

take cognizance of, and address these conceptual and practical oversights. It should be pointed at

the outset that in order to preserve brevity and clarity of organization, the discourse will not

austerely follow the sequential arrangement in the proposed statute; a concise thematic

discussion of the crucial and relevant elements of the legal framework will instead be adopted.

The paper first analyzes general substantive provisions; the paper critiques the statute‟s

proposed principles of ethical conduct; its limited scope of application; 11

and its attempt to

legislate normative obligations across an extensive and diverse public sector.12

The paper posits

a two year jail sentence, see Raphael Tenthani, „Jail for Malawi School Fraudsters,‟ BBC NEWS, Aug. 3,

2006, available at http://news.bbc.co.uk/2/hi/africa/5241588.stm (last accessed April 9, 2008); Lamba,

infra, note 97 at 258-267; Mutuwafhethu John Mafunisa, „Enhancing Accountability and Ethics in the

Public Service: The Case of the Republic of South Africa,‟ in CORRUPTION, DEMOCRACY AND GOOD

GOVERNANCE IN AFRICA: ESSAYS ON ACCOUNTABILITY AND ETHICAL BEHAVIOUR, supra note 2 at

238, 240-245. 9 Hereinafter “The Special Commission.” The author was one of two Attorneys that served as Program

Officers for the Special Commission: He researched and authored parts of the Special Commission‟s draft

report, see MALAWI LAW COMMISSION, DRAFT REPORT OF THE SPECIAL LAW COMMISSION ON

DECLARATION OF ASSETS, LIABILITIES AND BUSINESS INTERESTS BY PUBLIC AND ELECTED

OFFICERS (hereinafter “THE DISCLOSURE REPORT”) 4, 8-11(forthcoming 2008, on file with author); see

also The Malawi Law Commission Press Release, Feb. 6, 2007, available at http://www.lawcom.mw

(last accessed March 25, 2008). 10

Alison M‟bang‟ombe, Deputy Chief Law Reform Officer, Malawi Law Commission, Personal

Communication, April 18, 2008. 11

ROSE-ACKERMAN, supra note 1 at 82-84, 113-126. 12

The positivist theory of law as command by a superior sovereign obliging obedience was posited by

John Austin in his celebrated work the Province of Jurisprudence Determined, see JOHN AUSTIN,

4

that broad, phased implementation of the law is preferable to instantaneous fragmented

implementation. The paper then analyses procedural provisions: Initial filing requirements,

frequency, contents of disclosure statements and public access to disclosure records. In the

discourse, the paper considers intrusions into privacy rights implicated by the procedural

provisions; the paper questions whether the proposed legal framework sufficiently addresses

such intrusions to safeguard the statute‟s constitutionality.

An examination of enforcement mechanisms and institutional framework follow

thereafter; would broader administrative disciplinary sanctions and guarded criminal penalties

better strengthen the effectiveness of the proposed legislation? Implicitly, the paper inquires

whether corruption, constitutionalism and the rule of law are interconnected;13

does preventing

wealth accretion, by enforcing financial disclosures and upholding ethics among politicians and

public officials, reduce corruption and enhance the rule of law? A succinct, albeit rudimentary

discussion of whistle blower protections proposed in the statute is undertaken towards the end,

but only to demonstrate that whistleblower protections should not have been included within the

financial disclosure legislation.

The paper‟s comparative analysis of experiences in Africa and elsewhere is

inopportunely limited owing to research constraints and non-availability of primary resource data

LECTURES ON JURISPRUDENCE, 11-17 (Robert Campbell, ed., (Scholarly Press, Inc. 1977) (abr. 1913);

H.L.A HART, THE CONCEPT OF LAW, 18-25 (2d ed., 1994); TOM TYLER, WHY PEOPLE OBEY THE

LAW, 19-39 (1990); see also Joseph Raz, „The Obligation to Obey: Revision and Tradition,‟ in THE

DUTY TO OBEY THE LAW: SELECTED PHILOSOPHICAL READINGS, 159-175, 161-163, 172 (William

A. Edmundson ed., 1999) (critiquing the instrumentalist contention that citizens have a moral obligation

to obey the law of a reasonably just state). 13

For a comprehensive treatment of the philosophy of the rule of law in modern

constitutionalism, see generally, BRIAN Z. TAMANAHA, ON THE RULE OF LAW: HISTORY,

POLITICS, THEORY (2004); MICHAEL NEUMANN, THE RULE OF LAW: POLITICIZING ETHICS (2002);

and for a concise discussion of the implication of corruption on the rule of law, see Robert Lutz, „On

Combating the Culture of Corruption,‟ 10 Sw. J. L. & Trade Am. 263, 263 (2004).

5

on implementation of disclosure laws from these jurisdictions.14

Consequently substantial

reliance is placed on US comparative experiences: On ethics, conflict of interest, and disclosure

laws. The paper nevertheless asserts that challenges faced by African states implementing

disclosure laws are ostensibly similar to Malawi‟s because the conceptual blueprint is largely

analogous.

II. Overview of the Proposed Asset and Business Interests Disclosure Law

Malawi‟s proposed assets and business interest disclosure statute is divided into seven

parts and contains three schedules.15

Part I contains the short title,16

interpretation provisions,17

definitions18

and scope of application.19

Part II contains the objectives of the disclosure law20

and

guiding principles of ethical conduct.21

14

This information would have been invaluable to support some relevant claims, assertions, and

conclusions. Nevertheless, the accessible literature on experiences in African countries where ethics and

disclosure laws have been implemented support these assertions. Still, the analysis of primary source data

premised on actual surveys in these jurisdictions would have provided authoritative empirical

substantiation, see Bonwell C. Chikulo, „Corruption and Accumulation in Zambia,‟ in CORRUPTION AND

DEVELOPMENT IN AFRICA: LESSONS FROM COUNTRY CASE STUDIES, supra, note 1 at 173 (discussing

the Zambian experience where a code of ethics was enacted as far back as 1973; Joseph R. A. Ayee, in

CORRUPTION AND DEVELOPMENT IN AFRICA: LESSONS FROM COUNTRY CASE STUDIES, supra, 189

(discussing Ghana‟s less than successful Code of Conduct under which a large section of senior public

officers failed to comply with disclosure requirements six months after the law came into force; and John

Erero & Tony Oladoyin, „Tackling the Corruption Epidemic in Negeria,‟ in CORRUPTION AND

DEVELOPMENT IN AFRICA: LESSONS FROM COUNTRY CASE STUDIES, supra, 280, 284 (discussing

how the Code of Conduct adopted from the 1974 reforms and entrenched in the 1979 Nigerian

Constitution never gained prominence and corruption within the Code of Conduct Bureau itself

“adversely affected its legitimacy.). 15

The Public Officer‟s Declaration of Assets, Liabilities and Business Interests Bill 2007 (hereafter “The

Disclosure Bill 2007”). 16

The Disclosure Bill 2007, s. 1. 17

Id., s. 2. 18

Id., s. 3. 19

Id., s. 4.

6

Part III establishes the office of the Director of Public Officer‟s Disclosure of Assets,

Liabilities and Business Interests.22

This part also provides procedures for appointment,23

qualifications and removal from office of the Director and his deputy;24

the appointment of an

acting director when need arises;25

the appointment of officers and staff of the Directorate;26

and

the powers and functions of the Director.27

Part IV establishes and provides for powers and functions of a Parliamentary Committee

on Declaration of Assets and Business Interests28

to supervise disclosure requirements under the

Constitution.29

Part V stipulates substantive and procedural provisions of the disclosure law, sets

out initial filing requirements and frequency of filing disclosure statements;30

outlines details of

assets and business interests subject to disclosure31

and establishes retention periods for

disclosure records.32

Part VI provides access to disclosure statements by the public.33

Part VII provides

miscellaneous provisions; creates offences under the disclosure law and establishes attendant

20

Id., s. 5. 21

Id., s. 6. 22

Id., s. 7. 23

Id., s. 8. 24

Id., s. 9. 25

Id., s. 10. 26

Id., s. 11. 27

s. 12-13. 28

Id., s. 14. 29

The Constitution of the Republic of Malawi, 1994, s. 213 (4). The current Constitution of the Republic

of Malawi was adopted in 1994 (hereafter “The Malawi Const.”) replacing the Republican Constitution of

1966, thereby effecting an epochal paradigm shift, ousting Dr. Hastings Banda‟s authoritarian one-party

dictatorship in favor of a pluralist constitutional democracy, see TIYANJANA MALUWA, INTERNATIONAL

LAW IN POST-COLONIAL AFRICA, 149 (1999); FIDELIS EDGE KANYONGOLO, MALAWI JUSTICE

SECTOR AND THE RULE OF LAW, 4, 27-29 (2006). 30

The Disclosure Bill 2007, s. 15. 31

Id., s. 16. 32

Id., s. 17. 33

Id., s. 18.

7

sanctions and penalties for breaches of disclosure requirements.34

This part also provides for

disqualification from public service of officers adjudged guilty for violating disclosure laws;35

provides protection of whistleblowers under the disclosure law,36

sets penalties for divulging

whistleblower identity.37

This part sanctions false or malicious claims made by whistleblowers38

and finally provides powers to make regulations39

and effect amendments to the schedules.40

III. Theory and Legislative Reform: Lessons from Other Jurisdictions

As earlier acknowledged, Malawi‟s proposed disclosure law is generally well conceived.

In theory at least, the law addresses pertinent substantive, procedural and enforcement issues that

will inspire instillation of probity and accountability in politicians and public officials. Still,

conceptual and practical defects inherent in the proposed law necessitate adjustment for its

efficacious, effective and sustainable implementation. Consequently, some provisions will need

alteration, others strengthening and, in some cases, complete reconstruction.

Generally, there is broad consensus on the qualities that characterize an effective legal

framework to address corruption.41

The United States, in particular, possesses copious resources

34

Id., s. 19. 35

Id., s. 20. 36

Id., s. 21. 37

Id., s. 22. 38

Id., s. 23. 39

Id., s. 24. 40

Id., s. 25; The proposed law contains three schedules: A list of public offices subject to disclosure

requirements, id., s. 4; the initial disclosure statement form, and the annual disclosure statement form, id.,

s. 15 (1) & s. 15 (3) (a). 41

The UN has published several legislative resources that provide a comprehensive overview of practical

reform considerations on anti-corruption reforms, see generally CORRUPTION: COMPENDIUM OF

INTERNATIONAL LEGAL INSTRUMENTS ON CORRUPTION, (United Nations Office on Drugs and Crime,

2nd

ed., 2005), available at http://www.unodc.org/pdf/corruption/publications_compendium_e.pdf (last

8

in this area owing to its extensive historical experience with ethics, financial disclosure and

conflict of interest regulation in public service.42

This collective literature compellingly suggests

that a sound disclosure legal framework should reflect, and take into account geopolitical,

historical, social and cultural factors of the polity in which the reform measures are to be

implemented.43

Therefore, any proposed legal framework should necessarily comprise legally

binding rules, predictable administrative procedures and well designed, functioning enforcement

mechanisms.44

This is particularly significant for reform efforts in Malawi, as it is for the other

African jurisdictions, given the short experiences with disclosure laws and the scale of public

sectors potentially subject to financial disclosure regulation.

accessed on March 15, 2008); GLOBAL ACTION AGAINST CORRUPTION: THE MERIDA PAPERS (United

Nations Office on Drugs and Crime, ed., 2004), available at

http://www.unodc.org/pdf/corruption/publications_merida_e.pdf (last accessed on March 15, 2008); and

THE GLOBAL PROGRAMME AGAINST CORRUPTION: UN ANTI-CORRUPTION TOOLKIT (United Nations

Office on Drugs and Crime, ed., 2004), available at

http://www.unodc.org/pdf/crime/corruption/toolkit/corruption_un_anti_corruption_toolkit_sep04.pdf (last

accessed on March 15, 2008). 42

The historical account of US financial disclosure experiences leading to passage of the Ethics in

Government Act 1978 (Pub. L. No. 95-521, 92 STAT. 1824 (1978)) is particularly interesting, dating

back to 1946 when Senator Wayne Morse introduced resolutions to require senators file annual statements

of income and financial disclosures. It was not until thirty two years later that the Federal Government

enacted the Ethics in Government Act of 1978; see U.S Cong. & Adm. News ‟78, 4238-4240; see also

ROBERT N. ROBERTS, WHITE HOUSE ETHICS: THE HISTORY OF THE POLITICS OF CONFLICT OF

INTEREST LEGISLATION, 7-32 (1988) (discussing ethics in the early republic from 1789-1861), 73-91

(beginning 1958, discussing Congress‟ passage of joint resolution establishing a code of ethics for federal

government employees), 131-146 (chronicling the deterioration of ethical standards during the Nixon

administration culminating in Watergate; perhaps the biggest impetus for the Carter ethics reform

program), 147-170 (beginning 1976, discussing Carter‟s commitment to ethics reform during his

presidency campaign through to Congress‟ passage of the Ethics in Government Act in 1978). 43

Ibrahim F.I. Shihata, „Preface: Good Governance and the Role of Law in Economic Development,‟ in

MAKING DEVELOPMENT WORK: LEGISLATIVE REFORM FOR INSTITUTIONAL TRANSFORMATION AND

GOOD GOVERNANCE, xvii-xxvi (Ann Seidman et al. eds., 1999). 44

Id., at xvii-xix.

9

1. General and Substantive Provisions

The Constitution of Malawi stipulates asset and business interest disclosure requirements

for politicians and public officials.45

Section 88A provides disclosure requirements for the

President and members of Cabinet.46

Section 213 provides disclosure requirements for members

of the National Assembly and senior officers in the public sector.47

45

See note 29 above and accompanying text. 46

The Malawi Const., s. 88A provides: -

88A – (1) The President and members of the Cabinet shall not hold any other public office and shall not

perform remunerative work outside the duties of their office and shall, within three months

from the date of election or appointment, as the case may be, fully disclose all of their assets,

liabilities and business interests, and those of their spouses held by them or on their behalf as

at that date; and, unless Parliament otherwise prescribes by an Act of Parliament, such

disclosure shall be made in a written document delivered to the Speaker of the National

Assembly who shall immediately upon receipt deposit the document with such public office

as may be specified in the Standing Orders of Parliament.

(2) Any business interests held by the President and members of the Cabinet shall be held on

their behalf in a beneficial trust which shall be managed in such manner as to ensure

conformity with the responsibilities and duties of their offices.

(3) The President and members of the Cabinet shall not use their respective offices for personal

gain or place themselves in a situation their material interests conflict with the

responsibilities and duties of their offices.

47

The Malawi Const., s. 213 provides: -

213 – (1) In addition to the President and members of the Cabinet as provided by Section 88A, the

holders of the following offices, that is to say –

(a) a member of the national Assembly;

(b) a public officer of such senior grade or position as shall be specified under subsection

(2);

(c) an officer of such senior grade or position as shall be specified under subsection (2), of –

(i) a corporation, board, commission, council, or similar body established by or

under an Act of Parliament;

(ii) any other body, corporate or incorporate which in accordance with any Act of

Parliament is subject to the same statutory procedures for financial control and

accountability as apply in common to a body referred in subparagraph (i),

10

a) Code of Ethics

The Malawi Constitution does not expressly stipulate a code of ethics in its Disclosure

Clauses. However, the Special Commission intuitively considered inclusion of a code of ethics

on grounds that the objective of the Act “to promote confidence in the public service,” can only

be achieved “if corrupt practices are [eradicated].”48

From this observation, the Commission

deduced that the Constitution not only required financial disclosures but also implicitly subjected

politicians and public officials “to some principles of ethical conduct.”49

But, despite these astute

shall, within three months from the date of his or her election, nomination or

appointment, as the case may be, fully disclose all his or her assets, liabilities and

business interests and those of his or her spouse held by him or her or on his or her behalf

as at that date; and, unless Parliament otherwise prescribes by an Act of Parliament, such

disclosure shall be made in a written document delivered to the Speaker of the National

Assembly who shall immediately upon receipt deposit the document with such public

office as may be specified in the Standing Orders of Parliament.

(2) For the purpose of paragraphs (b) and (c) of subsection (1), the National Assembly shall

specify the grades and positions of the officers required to disclose assets in accordance

with that subsection, and shall do so by resolution passed by the majority of the members

present and voting and which shall be published in the Gazette.

(3) Notwithstanding subsection (1), in the case of those persons who, at the commencement

of this section, hold the offices to which this section applies, the period within which they

shall comply with subsection (1) shall be a period of three months –

(a) from the commencement of this section, in the case of members of the National

Assembly;

(b) from the date of the publication of the resolution under subsection (2), in the case of

others.

(4) There shall be a Committee of Parliament appointed by the National Assembly which

shall have the function of monitoring the compliance with the requirement on the

disclosure of assets under Section 88A (3) and under this section and the Committee shall

have all the powers necessary to perform this function. 48

THE DISCLOSURE REPORT, supra note 9 at 8. 49

Id.

11

observations, the Special Commission resolved not to develop and recommend an exhaustive,

practical and enforceable code of ethics.50

The Commission reasoned as follows:

[I]n Malawi, the law on declaration of assets, liabilities and business interests should be

restricted to [. . .] declarations of assets, liabilities and business interests. [M]ost

international anti-graft Conventions to which Malawi is a party merely encourages [sic]

the adoption of codes of ethics and conduct rather than the incorporation of such codes in

legislation dealing with declaration of assets, liabilities and business interests.

Secondly, the Commission [is] mindful of its mandate, which is to develop

legislation on declaration of assets, liabilities and business interests for public and elected

officers to provide minute details for the proper implementation of sections 88A and 213

of the Constitution.

Thirdly, the Commission observe[s] that having the legislation restricted to

matters of assets, liabilities and business interests shall not be totally unique to Malawi as

several other countries have taken the same direction (citation omitted).51

The Special Commission proposed instead mere guiding principles of ethical conduct:52

“Integrity, honesty, accountability, responsibility, and fairness; transparency, rule of law [sic],

professionalism and impartiality of public officers.”53

The proposed law is inherently deficient in proposing mere aspirational principles of

ethical conduct instead of an exhaustive and enforceable code of ethics.54

The objectives of the

50

The Special Commission concluded that its mandate was limited to developing the asset and liabilities

disclosure law despite observations that international anti-corruption conventions, to which Malawi is

party, encourage the development of codes of ethics for political and public officials, see The UN

Convention Against Corruption, Art. 8., Oct. 31, 2003, 43 I.L.M. 37, G.A. Res. 58/4, U.N. GAOR, 58th

Sess., at U.N.Doc.A/RES/58/4 (2003), available at

http://www.unodc.org/pdf/crime/convention_corruption/signing/Convention-e.pdf (last accessed on

March 15, 2008); the SADC Protocol Against Corruption, available at

http://www.osisa.org/files/transparency_cd/LAWS/SADC%20Protocol%20Against%20Corruption.pdf

(last accessed on March 4, 2008); and the AU Convention on Prevention and Combating Corruption,

available at http://www.africa-

union.org/Official_documents/Treaties_%20Conventions_%20Protocols/Convention%20on%20Combati

ng%20Corruption.pdf (last accessed on March 26, 2008): and again despite the fact that in comparative

countries like Uganda (The Leadership Act), Tanzania (The Public Leadership Code of Ethics Act), and

Kenya (The Public Officers Ethics Act ), the respective statutes include matters of ethics in addition to

disclosure requirements, see THE DISCLOSURE REPORT, supra note 9 at 9-10). 51

THE DISCLOSURE REPORT, supra note 9 at 10. 52

The Commission justified its resolutions in part form the fact that statutes from Ghana and Sri-Lanka

do not include codes of ethics. Instead the Special decided to leave the promulgation of codes of ethics to

individual institutions within the public sector, id. 53

The Disclosure Bill 2007, s. 6 (1).

12

proposed statute presuppose a public service premised on integrity, trust and public confidence.

Given that Malawi intends to root out endemic and systemic corruption that pervades the public

sector, these virtues can only be instilled in the public service through rigorous enforcement of

ethics. While the proposed guiding principles of ethical conduct enjoin public officers not to use

their office for self enrichment, avoidance of activities inconsistent with official duties; and

misappropriation or misuse of public property,55

they do not prohibit public officers from private

employment or entrepreneurial activities.56

More importantly, reversing the erosion of

confidence and trust in public institutions in Malawi will require enforcing stringent standards of

ethical behavior among politicians and public officials that only a practical and enforceable code

of ethics can help achieve.57

Codes of ethics establish unambiguous standards of conduct and behavior for employees,

thereby “helping to instill fundamental values that curb corruption.”58

Further, codes of conduct

54

The Special Commission acquiesced on the inadequacy of mere aspirational principles of ethics: “[O]n

their own, principles of a code of ethics [sic] are particularly difficult to enforce. They must be translated

into a code of conduct for enforceability [. . .;] the enactment of a code of conduct helps to improve the

integrity of an organization and thereby prevent corruption,” see THE DISCLOSURE REPORT, supra note

9 at 9. 55

Id., s. 6 (2) (a)-(e). 56

Id., Proviso to s. 6 (2) (e). 57

In Nigeria, a study to assess the integrity and capacity of the Justice System in three Nigerian states

conducted by the Global Programme against Corruption of the United Nations Office on Drugs and Crime

in collaboration with the Nigerian Institute of Advanced Legal Studies recommended, inter alia, the

stringent enforcement of codes of ethics, see ASSESSMENT OF THE INTEGRITY AND CAPACITY OF THE

JUSTICE SYSTEM IN THREE NIGERIAN STATES: TECHNICAL ASSESSMENT REPORT, 48 (United Nations

Office on Drugs and Crime, ed., 2006), available at

http://www.unodc.org/documents/corruption/publications_nigeria_assessment.pdf (last accessed April 5,

2008). 58

Codes of conduct also normally establish uniform standards for “training, discussion of standards and,

where necessary, modification of standards;” and they provide procedures and sanctions for violations of

and non compliance with established ethical standards, see THE GLOBAL PROGRAMME AGAINST

CORRUPTION: UN ANTI-CORRUPTION TOOLKIT, 133 (United Nations Office on Drugs and Crime, ed.,

2004), available at

http://www.unodc.org/pdf/crime/corruption/toolkit/corruption_un_anti_corruption_toolkit_sep04.pdf (last

accessed on March 15, 2008).

13

provide a basis for disciplinary action, including dismissal, for violations of prescribed standards.

They safeguard employees against abuse of the disciplinary process for “corrupt or other

improper purposes since employees know in advance” the standards by which they are to

abide.59

Comparable statutes that have codes of ethics also underscore the significance of

including practical enforceable ethics in the proposed legislation. Besides, the promulgation of

separate codes of ethics by separate constituents of the public sector in Malawi opens up

possibility for disparities in ethical standards that cannot be reconciled post facto.60

The

disclosure law should therefore include a comprehensive, practical and enforceable code of

ethics with uniform standards of behavior in line with the Special Commission‟s prior

observations.61

59

Id. 60

The U.S. Ethics in Government Act, for instance, introduced stringent amendments to ethical standards

with which federal employees were to comply with, including post-employment restrictions on

employment federal employees can subsequently engage in, see 18 U.S.C. § 207. The 1978 Act, in

similitude to Malawi‟s proposed law, was passed to “preserve and promote the accountability and

integrity of public officials and of the institutions of the Federal Government and invigorate the

constitution[al] separation of powers between the three branches of government,” see 4 U.S Cong. &

Adm. News, ‟78, 4237. 61

THE DISCLOSURE REPORT, supra note 9 at 9.

14

b) Scope of Application

Although primarily premised on seniority, the Malawi Constitution envisions broad

application of asset and financial disclosure requirements across the public sector.62

The

President, members of Cabinet, the National Assembly, and senior members of the civil service

all fall within the purview of the Constitution‟s stipulation.63

Again, the Constitution extends the

scope of disclosure requirements to bodies, corporations and institutions otherwise independent

of, but in which government has a fiscal or supervisory interest.64

The Special Commission,

however, altered the scope of disclosure requirements on argumentation that some positions in

the public sector are prone to corruption more than others.65

The Commission thus resolved to

propose a schedule specifying positions subject to disclosure requirements based on two

premises: That comparable jurisdictions in Africa have similar schedules66

and that the general

anti-corruption law would cover gaps inadvertently left by the schedule.67

From the foregoing observations, the scope of application proposed by the Special

Commission seems entirely tailored on schedules from comparative jurisdictions within Sub-

Saharan Africa.68

This is a significant conceptual oversight and will result in practical problems

implementing and enforcing the proposed financial disclosure law. The specificity of the listed

62

See notes 48 & 49 above. 63

Id. 64

Id. 65

THE DISCLOSURE REPORT, supra note 9 at 12-13. 66

For example Kenya, Uganda and Ghana; THE DISCLOSURE REPORT, supra note 9 at 13. 67

Id. 68

Id., see also http://www1.worldbank.org/publicsector/civilservice/assetsbycountry.asp?index=3 (last

accessed on March 8, 2008), (Ghana‟s Public Office Holders (Declaration of Assets and

Disqualifications) Act, 1998); and

http://www.lawsofkenya.com/app/frames.asp (last accessed on March 8, 2008), (Kenya‟s Public Officers

Ethics Act).

15

categories, justified by the Commission as reflecting the reasoning that certain public positions

be subject to disclosure requirements on account of the nature of their responsibilities (rather

than seniority) is premised on arbitrary classification at best, and is thus susceptible to challenges

on discriminatory grounds.69

Moreover, the proposed list will lead to unanticipated adjudicatory

uncertainty, as positions inadvertently not listed, but otherwise crucial for the effectiveness of the

disclosure law, may be adjudged excluded due to ambiguities in statutory construction.70

Contrary to the Special Commission‟s reasoning, the scope of the financial disclosure law ought

to take cognizance of the forms of corruption uniquely prevalent across Malawi‟s public sector.71

Thus, the proposed law should astutely target the broadest coverage possible;72

not only to attain

69

The Malawi Const., s. 20. 70

US -v- Barnes, 222 U.S. 513 (1912); see also Clifton Williams, „Expressio Unius Est Exclusio

Alterius,‟ 15 Marq. L. Rev. 191, 191 (1931); the maxim expressio unius est exclusio alterius is applicable

in statutory construction in Malawi; see Malawi Human Rights Commission –v- AG, Misc. Cas. No. 1119

of 2000, 6 (Unrep., on file with Author); Malawi, a former protectorate of Great Britain, received English

Common Law through Article 15(2) of the British Central Africa Order-in-Council 1902; see FRANZ

VON BENDA-BECKMANN, LEGAL PLURALISM IN MALAWI: HISTORICAL DEVELOPMENT 1858-1970

AND EMERGING ISSUES, 36-37 (2007). 71

Compare; US Ethics in Government Act 1978 requires broad coverage of federal employees, infra note

106; see also U.S. OFFICE OF GOVERNMENT ETHICS, PUBLIC FINANCIAL DISCLOSURE: A

REVIEWER‟S REFERENCE, 2-2 (2d. ed., 2004) (a compilation of guidelines for federal employees on

disclosure requirements). 72

Contra Transparency International‟s evaluation of Kenya‟s Public Ethics Act, suggesting that low level

echelons in the public sector should be excluded, stating:

Mandatory wealth declaration is not a one-size-fits-all remedy that is equally

valuable whether applied to a top minister or a low-ranking immigration officer. An asset

declaration system, like any reform program, should balance the need for

comprehensiveness against the costs and practicalities of administration and enforcement.

It should take into account that in some areas asset declaration may not be the most

effective or efficient means of monitoring and controlling conduct.

Judged in these respects, the Public Officer Ethics Act probably goes too far in

applying declaration requirements to all public officials and employees. In the long term,

Parliament should consider narrowing the declaration requirements to exclude employees

in low-level or nonsensitive positions [sic]. In the short term, perhaps the best the

government can do is to prioritize its enforcement efforts, concentrating enforcement

resources on higher-level officials and key areas of government.

See James Luh, „Public Officer Ethics Act Provisions for Declarations of Income, Assets, and Liabilities:

Evaluation and Recommendations,‟ 2 available at http://www.tikenya.org/documents/assetdeclaration.pdf

(last accessed on April 7, 2008); but see infra at page 18 et seq for counter argumentation on coverage of

16

uniformity of treatment but more importantly, to ensure the widest and efficacious probity within

the public sector.73

As in any other country, Malawi‟s public sector comprises numerous constituencies only

partially reflected in the disclosure requirements of the Constitution.74

In broad parlance, these

constituencies fall within the three branches of government: The Executive,75

the Legislature,76

and the Judiciary77

all of which need to be subject to the disclosure requirements. The

Legislature comprises members of parliament and the entire parliamentary service.78

The

Judiciary comprises Justices of the Supreme Court, Judges of the High Court, Professional

Magistrates and non-professional magistrates all of whom, to safeguard the integrity of the entire

Judiciary, should be subject to disclosure requirements.79

In addition, the Judiciary has

innumerable officers of varying ranks in administration and support positions that cannot be

excluded from the application of the disclosure law.

Admittedly, the executive forms the bulk of the public sector. It includes the regular civil

service, which in its own right comprises several sub groups.80

The public sector also includes

quasi-government bodies such as constitutional bodies mandated to carry out specific public

duties: The Malawi Law Commission, the Malawi Human Rights Commission, the Anti-

Corruption Bureau, the Office of the Ombudsman and other constitutional institutions providing

low level employee echelons premised on forms and prevalence of corruption; and objectives to eradicate

corruption in African public sectors. 73

Bornwell Chikulo, „Corruption and Accumulation in Zambia, in CORRUPTION AND DEVELOPMENT IN

AFRICA: LESSONS FROM COUNTRY CASE STUDIES, supra note 1 at 161. 74

The Malawi Const., ss. 88A & 213; see notes 46 & 47 above and accompanying text. 75

Id., s. 7. 76

Id., s. 8. 77

Id., s. 9; see also Chaps. VI, VIII & IX. 78

Id., ss. 48-74. 79

Id., ss. 103-119. 80

Id., ss. 78-102, Chap. XX, ss. 186-194.

17

legal services of one sort or other.81

Then there are autonomous institutions established by

Parliament which carry out public functions and services: The University of Malawi, the Malawi

College of Health Sciences, the Natural Resources College; the Botanical Gardens, the Malawi

Examinations Board; the Malawi Revenue Authority and other similar institutions.82

There are

uniformed services under government ministries but which are independently managed; the

Malawi Defense Forces, the Malawi Police Service and the Civil Aviation Services.83

Lastly,

there are statutory bodies established by Parliament but managed as private corporations

independent of government control but which are nevertheless subject to parliamentary or

executive fiscal supervision:84

The Petroleum Control commission, Electricity Supply

Corporation of Malawi, Water Board Services and Malawi Hotels Limited & c. Although in

exhaustive, this list is representative of the diversity and breadth of Malawi‟s public sector.

In light of this scale, difficulties will inevitably arise if the financial disclosure law is

holistically and instantaneously implemented across the entire public sector.85

The proposed

scope therefore needs be modified to provide for a step by step implementation running over a

period of several years. The law should primarily target select categories such as elected officials

81

Id., Chaps X, XI & XII. 82

See http://www.malawi.gov.mw/Statutory%20Corporations/Home%20%20Parastatals.htm (last

accessed March 31, 2008) 83

The Malawi Const., Chaps XV, XVI, XVII & XIX. 84

Id., s. 213 (1) (c) (i) & (ii) 85

A Transparency evaluation of Kenya‟s Public Ethics Act underscores the difficulties of administering

disclosure requirements over a large sector. The evaluation report states: -

The Public Officer Ethics Act‟s declaration requirements reach all public

officials and government employees, from the President to government messengers.

Efforts to reduce corruption certainly must target government at all levels. But by

requiring all public employees to declare their assets, the government has created a

monumental administrative task. According to the most recent Economic Survey, public

sector employment in Kenya stood at 659,000 persons in 2002.12 Declaration

requirements may apply to some additional persons who are not included in that figure.

See Luh, supra note 72 at 2.

18

and senior public officers involved in decision making.86

After successful implementation of this

phase, the second phase could target medium management public officials comprising the bulk

of Malawi‟s bureaucracy.87

Finally, the law should then be implemented across low-level public

officers; consistent with Malawi‟s unique forms and prevalence of corruption, rather than

discriminate on grounds of fiscal responsibility.88

An examination of implementation challenges

faced by comparative jurisdictions gives credence to this proposition. Experiences from Ghana,89

Nigeria,90

Poland,91

and Zambia92

all show that holistic and instantaneous implementation of

disclosure requirements over a large public sector is highly problematic. On the other hand,

experiences in the United States where ethics standards were implemented gradually over a

period of time show greater success. 93

The enforcement of ethical standards within the Executive

86

See note 85 above and accompanying text. 87

George B.N. Ayittey, „Combating Corruption in Africa: Analysis and Context,‟ in CORRUPTION AND

DEVELOPMENT IN AFRICA: LESSONS FROM COUNTRY CASE STUDIES, supra note 1 at 104 et seq. 88

See Case Comments, Public Employees Financial Disclosure Law Requiring Detailed Disclosure From

Low-Echelon Employees Not Unconstitutional, Barry –v- City of New York, 712 F.2d 1554 (2d. Cir.

1983), 62 Wash. U. L. Q. 307, 337-350 (1985). 89

See Ayee, supra note 4 at 189-190; see also

http://www1.worldbank.org/publicsector/civilservice/assetsbycountry.asp?index=3

(last accessed on March 8, 2008). 90

http://www.lawsofkenya.com/app/frames.asp (last accessed on March 8, 2008);

http://www.tikenya.org/documents/assetdeclaration.pdf (last accessed February 25, 2008). 91

http://unpan1.un.org/intradoc/groups/public/documents/NISPAcee/UNPAN027519.pdf (last accessed

March 14, 2008). 92

See Chikulo, supra note 4 at 173-177. 93

US experiences with public ethics, especially in the executive branch can be traced back to the

formative years of the Republic. While George Washington‟s administration was unquestionably regarded

as ethical with high standards of fitness of character, Thomas Jefferson removed officeholders during his

administration that had used their positions for political advantage. Jefferson also removed a number of

officials appointed by John Adams in suspicious circumstances towards the last days of his presidency,

see WILLIAM G. TORPEY, FEDERAL EXECUTIVE BRANCH ETHICS, 11, 13 (1990); again, during

Jefferson‟s administration, the Post Master General, Gideon Granger, was removed from office for

lobbying in the House of Representatives for the advancement of land companies in which he had

invested, see ROBERT G. VAUGHN, CONFLICT-OF-INTEREST REGULATION IN THE FEDERAL

EXECUTIVE BRANCH, 3 (1979); The Connecticut code of Ethics Commission, available at

http://www.ct.gov/ethics/lib/ethics/2006_guide_for_contractors.pdf (last accessed on March 22, 2008);

New Jersey, see Martin L. Haines, „Judicial Financial Disclosure Is Good, But Increased Disclosure Is

Better,‟ 167 N.J.L.J. 1315, 1315 (March 25, 2005); and New York, available at

19

Branch of the U.S. Government is evident in the strict manner that possibilities of conflicts of

interest are monitored by the Department of Justice through advice to the President on numerous

appointments within the federal government. 94

Finally, a phased implementation has the advantage that it is easier for senior

management, once subjected to stringent integrity standards, to influence junior and low level

employees uphold honesty, thereby reducing corruption through example and practice.

Otherwise, it is much harder for high level officers to be influenced by low level efficacious

employees where the disclosure requirements are implemented from the bottom up.95

c) Forms of Corruption in Malawi’s Public Sector

As indicated earlier, it is imperative that any anti-corruption initiatives take into account

the unique forms of corrupt practices prevalent in the country in which they are implemented. In

the context of asset and financial disclosure legislation intended to address systemic corruption,

the law necessarily has to address the precise forms of corruption in the sector targeted for

reform. The legal framework must therefore discriminate among different forms of public

corruption: Kleptocratic corruption, commonly associated with top politicians and government

http://blogs.timesunion.com/Chapitol/wp-content/uploads/2006/10/Hevesi%20Final%20Report.doc (last

accessed on March 22, 2008). 94

See „Whether Conflict Of Interest Laws Apply To A Person Assisting A Supreme Court Nominee,‟

Memorandum Opinion For The Counsel To The President, July 22, 2005, available at

http://www.usdoj.gov/olc/2005/sgesupct.pdf (last accessed on March 22, 2008); see also an opinion

issued by the U.S Attorney‟s Office on when the ethics requirements begin to apply for officers appointed

but who have not formally reported for duty, available at http://www.usdoj.gov/olc/appointment.htm (last

accessed on March 22, 2008). 95

See

http://siteresources.worldbank.org/INTWBIGOVANTCOR/Resources/MalawiFinalMainReportGCBSurv

ey.pdf (last accessed on March 9, 2008).

20

officials; mafia-type bilateral corruption, involving private business interests; and competitive

bribery, common amongst medium bureaucrats and low-level public service echelons.96

Malawi exhibits a combination of two of these types of corruption: Kleptocratic

corruption and competitive bribery.97

This means there is endemic and systemic corruption

amongst high level political functionaries that would appropriately be addressed by requiring

disclosure from politicians and high level public officials. Then there is small scale competitive

bribery, mainly to facilitate administrative and regulatory activities prevalent within middle

management and low level public employment echelons. Holistic and instantaneous

implementation of the disclosure requirements would result in the law easily being applied

enthusiastically across the lower ranks but less so to high level public echelons.98

This in turn

would negatively affect the long term efficaciousness of the disclosure law.99

In this regard, it is noteworthy that Kenya and Ghana probably have similar forms of

corruption to Malawi‟s although there are subtle differences that should not be overlooked. One

obvious difference is that Malawi does not exhibit a polarized and conflict-ridden ethnic society

96

ROSE-ACKERMAN, supra note 1 at 27-35 & 114-115. 97

See Isaac Lamba, „Controlling Corruption in Africa: The Case of Malawi,‟ in CORRUPTION,

DEMOCRACY AND GOOD GOVERNANCE IN AFRICA: ESSAYS ON ACCOUNTABILITY AND ETHICAL

BEHAVIOUR, supra note 2 at 258, 260; Gregory Kamwendo, Language and Images of Corruption: The

Nation as a Case Study,‟ id, 161, 162-165. 98

Examples of such disparate application of a law of general application is the Corrupt Practices Act

which has effectively been applied to low level public employees but is less than enthusiastically applied

to high level officials, see Dingiswayo Madise, „Challenges in the Fight Against Corruption in Malawi:

Some Thoughts,‟ 4, Paper presented to a meeting on Deepening the Judiciary‟s Effectiveness in

Combating Corruption, UNECA, Addis Ababa, Ethiopia, Nov. 19-23, 2007) available at

http://www.uneca.org/dpmd/events/corruption/Malawi.pdf (last accessed on April 4, 2008). 99

See ROSE-ACKERMAN, supra note 1 at 27-32; L. Log Raditlhokwa, „Corruption in Africa: A Function

of the Crisis of Leadership,‟ in CORRUPTION, DEMOCRACY AND GOOD GOVERNANCE IN AFRICA:

ESSAYS ON ACCOUNTABILITY AND ETHICAL BEHAVIOUR, supra, note 2 at 49-55; see also Dingiswayo

Madise, „Challenges in the Fight Against Corruption in Malawi: Some Thoughts,‟ 5, Paper presented to a

meeting on Deepening the Judiciary‟s Effectiveness in Combating Corruption, UNECA, Addis Ababa,

Ethiopia, Nov. 19-23, 2007) available at http://www.uneca.org/dpmd/events/corruption/Malawi.pdf (last

accessed on April 4, 2008) (Discussing the loss of integrity in the Anti Corruption Bureau because of

selective application of anti-corruption laws).

21

as does Kenya.100

Corruption based on nepotism premised on ethnocentric associations does not

necessarily result in financial kickbacks for those who use their positions to favor their clansmen

or kinfolk.101

In Malawi, while nepotism exists to an extent, its prevalence in the context of

wealth accumulation through abuse of office is less pronounced.

Disclosure statutes are by their very nature designed to deter decision makers from

abusing their privileged positions for private gain (e.g. in public procurement and contracts

involving substantial government funding) from engaging in corrupt dealings with potential

bidders by subjecting them to public scrutiny. To that extent, if the legal framework does not

discriminate between kleptocracy and bureaucratic competitive bribery, those who engage in

perfunctory corruption tend to be encapsulated more by the law without significant impact on the

reduction of grand corruption.

2. Procedure and Enforcement

a) When to File

The Special Commission recommends that disclosure statements be filed at different

times; an initial disclosure statement filed on assumption of duties, a disclosure statement filed

annually and a disclosure statement filed prior to cessation of employment.102

The Disclosure

100

See Jose G. Montalvo et al, „Ethnic Polarization, Potential Conflict and Civil Wars,‟ 24, available at

http://www.econ.brown.edu/fac/Herschel_Grossman/courses/182,222papers/Montalvo&Reynal-

Querol.pdf (last accessed April 7, 2008); see report on Kenya‟s post election ethnic violence, available at

http://www.cbsnews.com/stories/2008/01/02/world/main3665347.shtml (last accessed on April 7, 2008). 101

Professor Howard Fenton, personal communication, March 5, 2008. 102

THE DISCLOSURE REPORT, supra note 9 at 15.

22

Bill requires that disclosure statements be filed seven days before an elected official or public

officer assumes office;103

within thirty days of each fiscal year‟s commencement;104

and three

months prior to the termination of the employment contract, unless the preceding annual

declaration was filed within the preceding three months.105

The requirement to file disclosure

statements annually is highly innovative and commendable, contrasted for example, with Ghana,

where periodic statements are only required after four years.106

In the United States, all federal

employees are required to file disclosure reports annually, in any event, before May 15 and

within thirty days of ceasing employment.107

It would have been more astute if the law recommended that disclosure statements be

filed within thirty days of assuming office and thirty days after cessation of duties than is

currently proposed. Seven days before assuming office is unduly short for incoming officials;

and thirty days before cessation of duties impractical for the latter. The special Commission‟s

reasoning, that requiring disclosure statements from officers after they leave employment would

subject persons outside the public service to disclosure requirements, seems superfluous if

juxtaposed to the fact that Malawi, as do other jurisdictions, places post-employment restrictions

on former public service employees.108

Moreover, it is not unusual for some public servants

arrange receipt of compensation for corrupt acts accomplished during their employment in public

103

The Disclosure Bill 2007, s. 15(1). 104

Id., s. 15(3) (a). 105

Id., s. 15 (3) (a)-(b). 106

See Joseph R. A. Ayee, „Ghana: The Continuing Search for Cures in the Fight Against Corruption,‟ in

CORRUPTION AND DEVELOPMENT IN AFRICA: LESSONS FROM COUNTRY CASE STUDIES, supra note

1 at 189. 107

See Ethics in Government Act 1978, Pub. L. No. 95-521, 92 STAT. 1824 (1978); TITLE I § 101(a)-

(g), members of congress, senators and all employees in the legislative branch, including candidates in

presidential and congressional elections; TITLE II, § 201(a)-(g), employees of the executive branch and

all federal agencies; and TITLE III, § 301(a)-(e) judicial officers and employees of the federal judicial

branch. 108

Compare Pub. L. No. 95-521, 92 STAT. 1824 (1978) amending 18 U.S.C. 207 (extending post

employment restrictions for former federal employees.).

23

service after cessation of duties. Disclosure requirements within three months after cessation of

duties would enable investigations of such post-employment compensations. Surprisingly, the

Special Commission did acknowledge the wisdom behind insisting filing after cessation of

duties.109

This is one area where the statute could be strengthened accordingly.

b) Contents of Disclosure Statements

The proposed law requires disclosure statements to indicate detailed information of assets

and business interests owned or owed by an officer or members of his immediate family; assets

bought or sold within the preceding five years, or assets financed by an officer otherwise held

under different names;110

income earned in the preceding twelve months, stating sources,

amounts and descriptions of circumstances pertaining to such earnings;111

bank accounts, with

full particulars of domicile and amounts;112

shares or stocks held in any company or corporation

with respective values;113

and gifts received within six months of filing the declarations.114

In

addition to names and particulars, the disclosure statute requires that previous public positions

held by the officer be disclosed and details of members of an officer‟s immediate family.115

The

statute however, does not require that previous positions other than public positions held by the

officer be disclosed in the declarations.116

The contents must also specify liabilities and debts

owed by an officer and his immediate family including names and particulars of creditors,

109

THE DISCLOSURE REPORT, supra note 9 at 16. 110

The Disclosure Bill 2007, s. 16 (1) (e) (i)-(iii). 111

Id., (iv). 112

Id., (v). 113

Id., (vi) 114

Id., (vii). 115

Id., s. 16 (1) (a)-(d). 116

Id.

24

circumstances pertaining to the indebtedness and117

business interests held, including all

commercial and entrepreneurial activities engaged in within the preceding five years.118

With regard to disclosure contents, there is likelihood of conflicts with privacy rights on

which such broad and specific content requirements may be challenged.119

In the United States,

for example, the disclosure statutes have survived strict constitutional scrutiny because they

require value ranges rather than specific values to be declared.120

In the case of Malawi, it is

likely there will likewise be constitutional challenges on grounds of intrusion into privacy rights

protected under Malawi‟s equality clause.121

Whether the law will pass constitutional scrutiny

will turn on whether the requirements regarding the contents mandated to be disclosed are

reasonable, given the objectives the statute intends to achieve. In addition, the difficulty arising

from a strict compliance with the proposed disclosure requirements are that first, bank account

values hardly remain static for any length of time and second, property market values tend to

fluctuate considerably between proximate periods. As such individuals subject to disclosure

deadlines may very well fail to ascertain values with expedited precision. It is thus important that

the law be revised to provide, if possible, ranges of values instead of intrusive specific values

required under the proposed law.122

117

Id., s. 16 (1) (f). 118

Id., (h). 119

supra note 69 and accompanying text. 120

See Louis Bernard Jack, Constitutional Aspects of Financial Disclosure Under the Ethics in

Government Act,‟ 30 Catholic U. L. Rev. 583, 584-598. 121

The Malawi Const. s. 20. 122

Contra Ethics in Government Act 1978, Pub. L. No. 95-521, 92 STAT. 1824 (1978), § 102 (1) (B),

§202(1) (B), § 302(1) (B) (requiring ranges of values to be declared in disclosure statements.).

25

c) Retention Periods

The Special Commission‟s proposal that disclosure records be retained for seven years

after cessation of employment by politicians and public officials is astute.123

The records may be

retained for longer periods in the event of an on-going investigation.124

Other jurisdictions with

longer experience and history of disclosure legal regimes follow similar retention periods.125

The

proposed period of retention is short enough to ensure efficient record management while

providing for availability of records in case queries are raised subsequent to an official‟s

cessation of duties.

d) Public Access

Another commendable position taken by the Special Commission and proposed in the

disclosure statute is broad unrestricted public access to disclosure records.126

The proposed

statute specifically requires disclosure records be published in the Malawi Government

Gazette.127

Requests for information may be made to the Director for release of disclosure

records and refusal cannot be sustained except for cause.128

This is highly progressive in the

sense that most developed countries with long histories and high compliance levels allow for

123

The Disclosure Bill 2007, s. 17(1). 124

Id., s. 17(2). 125

Compare the establishment in U.S. disclosure laws, especially in federal ethics enforcement

institutions, see U.S. OFFICE OF GOVERNMENT ETHICS, supra note 72 at 4-13. 126

The Disclosure Bill 2007, s. 18. 127

Id., s. 18(1)-(2). 128

Id., s. 18(2).

26

broad public access to disclosure records.129

It is also astute for purposes of placing politicians

and public officials under public scrutiny, a very effective means of curbing corruption.

e) Penalties and Sanctions

The proposed statute stipulates punishment by disciplinary action of any officer who fails

to submit disclosure records without reasonable cause.130

The proposed statute further sanctions

any officer filing inaccurate, misleading or false declarations with a fine of MK500, 000.00

(equivalent of US $3,655.40).131

The proposed statute further disqualifies any public officer

disciplined on grounds of failure to comply with disclosure requirements from holding public

129

28 U.S.C. § 305; in the United States, one can access disclosure records on the internet including those

filed by senators, congressmen; candidates for presidential elections most state government officials, see

http://www.opensecrets.org/pfds/pfd2006/N00000019_2006.pdf (last accessed on March 29, 2008) and

http://www.opensecrets.org/pfds/pfd2006/N00009638_2006.pdf (last accessed on March 29, 2008). 130

The Disclosure Bill, s. 19 provides: -

(1) Every public officer who fails without reasonable cause to submit the required declaration

within the time determined by this Act –

(a) shall be liable to disciplinary action in accordance with applicable disciplinary

procedures;

(b) shall be guilty of an offence and liable to a fine of MK500, 000; and to imprisonment of

one year.

(2) Every public officer who files a declaration which the public officer knows or believes to

inaccurate or misleading, or does not believe to be true, commits an offense and is liable to

the following penalties –

(a) administrative sanctions

(b) fine of MK500, 000.00; and

(c) imprisonment of two years.

(3) The imposition of any penalty under subsection (1) and (2) shall not exonerate the public

officer from submitting the required declaration. 131

Id.

27

office for seven years.132

The proposed statute further subjects an officer to possible criminal

prosecution and, upon conviction, to disbarment from public office for life depending on the

degree of infraction.133

These penalties appear evenhanded when compared to ones international

conventions and legislative resources suggest; as well as sanctions reserved for similar offences

in comparative and more experienced jurisdictions.134

The provision of a wide range of

administrative sanctions is particularly intuitive; given that narrowly defined criminal sanctions

often inhere the danger of non-prosecution for mundane infractions.135

As it is, the Special

Commission prudently reserved criminal prosecution for egregious breaches of disclosure

requirements, which would result in automatic dismissal from public service.136

Lastly, the wide

range of administrative sanctions will likely militate against spurious judicial review

proceedings.

132

Id., s. 20 reads: -

(1) In addition to the penalties prescribed under section 20, every public officer who fails to

comply with the requirements of this Act shall be disqualified from holding any public office

for a period of not less than seven years.

(2) Notwithstanding the requirements of subsection (1), every public officer whose violations of

this Act is determined by a court of law to constitute an offence of dishonesty or moral

turpitude shall be disqualified from holding any public office for life.

133

Id., but see The Malawi Const., s. 51 (2) (g) & s. 79 (7) (g) which only bars a person from elected

office for a period of seven years for conviction involving dishonesty or moral turpitude. 134

But see note 60 above and accompanying text. 135

THE DISCLOSURE REPORT, supra note 9 at 33. 136

The Malawi Public Service Regulations expressly provide for the interdiction of officers in public

service charged with criminal offences and, upon conviction, automatic dismissal, see REPUBLIC OF

MALAWI: PUBLIC ADMINISTRATION COUNTRY PROFILE, 13 (2004) available at

http://unpan1.un.org/intradoc/groups/public/documents/UN/UNPAN023275.pdf (last accessed April 21,

2008).

28

3. Institutional Framework

The proposed statute establishes an independent office within the executive branch called

the Office of the Director of Public Officer‟s Disclosures of Assets, Liabilities and Business

Interests to administer and enforce the disclosure law.137

The office is to be headed by a Director

who, even though he is supposed to be independent, is expressly accountable to the President.138

The problem arises as to how the proposed structure is to work in light of the constitutional

requirements that a Committee of Parliament oversee functions of the office.139

It will naturally

cause conflicts of loyalty for the Director between the President and the Legislature if the current

proposal is maintained. What complicates matters even more is that the Director‟s appointment is

subject to confirmation by the Public Appointments Committee of Parliament; and he is

expressly required to submit annual reports to Parliament.140

Clearly there is need to revise the arrangements under which the office of the Director is

established and how it is to be monitored.141

The constitutional framework requires that asset and

business interests‟ disclosures be submitted to the Speaker of Parliament who should deposit

them with an appropriate authority established for the purpose.142

The constitutional framework

envisioned the possibility of an entirely independent institution established by Parliament to

administer and enforce the asset and financial disclosure law. To that end, subjecting the

137

The Disclosure Bill 2007, s. 7. 138

Id. 139

The Malawi Const., s 213 (4). 140

The Disclosure Bill 2007, s. 14 (1) (b). 141

The Statute also establishes the position of Deputy Director appointed and subject to the same terms as

the Director, id., s. 10. 142

The Malawi Const. ss. 88A & 213.

29

disclosure office to executive influence is counterproductive to the independence the constitution

envisaged.143

The proposed statute has another defect in that the office established to regulate

disclosure requirements is not empowered to verify or conduct investigations against violations

of the statute.144

Instead the Commission proposes that investigations be conducted by the Anti-

Corruption Bureau.145

This is a major practical problem because the Anti-Corruption Bureau has

a specific mandate under the Corrupt Practices Act.146

The reality is that the Anti Corruption

Bureau is hardly able, for personnel and capacity challenges, to fulfill its mandate even under the

Corrupt Practices Act.147

To establish the office as only a repository without empowering it to

investigate and enforce the law fails to appreciate the technical peculiarities that will inevitably

arise in the implementation of the disclosure statute. It is argued that proper planning for training

and institutional development prior to the office launching its core operations will largely enable

the office effectively carry out its mandate of receiving disclosures, investigating breaches of the

law and enforcing disclosure requirements.148

Given the size of the public sector in Malawi, it

143

Compare the Office of Government Ethics established by the Ethics in Government Act 1978, Pub. L.

No. 95-251, 92 STAT. 1824 (1978), §401 & §402, (5 U.S.C App. ), which is similarly headed by a

Director but, although appointed by the President by and with the advice and consent of the senate, is not

subject to control by the President. 144

THE DISCLOSURE REPORT, supra note 9 at 22; but see The Disclosure Bill 2007, s. 13 (a). 145

Id. 146

The Corrupt Practices Act (1995), s. 11, Cap. 7:04, Laws of Malawi. 147

See Dingi Madise, „Challenges in the Fight Against Corruption in Malawi: Some Thoughts,‟ 3-4 Paper

Presented to a meeting on Deepening the Judiciary‟s Effectiveness in Combating Corruption, UNECA,

Addis Ababa, 19-23 November, 2007, available at

http://www.uneca.org/dpmd/events/corruption/Malawi.pdf (last accessed on January 29, 2008). 148

Contra the U.S Ethics in Government Act 1978, Pub. L. No. 95-251, 92 STAT. 1824 (1978), § 402(b)

(3), (5 U.S.C App. ), provides: -

The responsibilities of the Director shall include – [. . .] monitoring and

investigating compliance with the public financial disclosure requirements of title II of

this Act by officers and employees of the executive branch and executive agency officials

responsible for receiving, reviewing and making available financial statements filed

pursuant to such title [. . .].

30

cannot of course be feasible that there be established separate institutions for each of the three

branches; but it does make for a strong case to establish the office of asset disclosures as an

institution independent from the executive branch. It is argued that the Special Commission

should consider establishing thresholds within which the Director may forward cases to the Anti-

Corruption Bureau; where the investigation evidences matters beyond financial disclosure

infringement and becomes a corruption investigation. Otherwise, withholding powers of

investigation and review will result in inefficiencies and loss of trust in the office for lack of

enforcement of disclosure requirements. Besides, it will not justify expenditure of scarce

resources to have one institution merely act as a repository of disclosure records and designate

another to conduct verifications and investigations.

4. Whistleblower Protection

The Special Commission discussed and resolved to recommend provisions protecting

whistleblowers as part of the disclosure law.149

The proposed whistleblower protections,

however, cannot be dealt with in the current discourse for two main reasons. First, the

extensiveness of whistleblower law is beyond the scope of this paper150

and second, in light of

recent scandals relating to corporate governance, whistleblower protection warrants a much

broader treatment than can satisfactorily be accomplished within a specialized law on asset

149

THE DISCLOSURE REPORT, supra note 9 at 34-36. 150

To get a full appreciation of how extensive whistleblower jurisprudence is, see generally STEPHEN M.

KOHN, ET AL, WHISTLEBLOWER LAW: A GUIDE TO LEGAL PROTECTIONS FOR CORPORATE

EMPLOYEES (2004); STEPHEN M. KOHN, CONCEPTS AND PROCEDURES IN WHISTLE BLOWER LAW

(2001); STEPHEN M. KOHN & MIKE D. KOHN, THE LABOR LAWYER‟S GUIDE TO THE RIGHTS AND

RESPONSIBILITIES OF EMPLOYEE WHISTLE BLOWERS (1988).

31

disclosure.151

Suffice to say that whistleblower protections would aptly have been the subject of

a separate comprehensive statute of general application in its won right.152

IV. Recommendations

The recommendations below are made to strengthen the proposed asset and financial

disclosure law in Malawi light of the conceptual and practical defects identified and discussed in

the course of the discourse above:

1 The Special Law Commission should consider including a practical and enforceable code

of ethics in the asset and financial interest disclosure law. The inclusion of a code of

ethics reflects the Commission‟s initial observations and findings regarding the objectives

of the proposed law and will strengthen the promotion of ethical conduct amongst

politicians and public officials.

2 The Special Law Commission should consider expanding the scope of the asset and

financial disclosure law to achieve a broad coverage of the public sector. This can be

achieved by designating officers subject to asset and financial disclosure by reference to

service and seniority scale instead of enumerated offices as currently extant in the

151

See „Enron Boss Gets 24-Year Sentence,‟ BBC NEWS, Oct., 23, 2006, available at

http://news.bbc.co.uk/2/hi/business/6079042.stm (last accessed on April 10, 2008). 152

The Special Commission did acknowledged the magnitude of whistleblower laws existent in

comparative jurisdictions such as the United Kingdom and the United States and the restrictions of its

mandate regarding the development of general whistleblower legislation, see THE DISCLOSURE REPORT,

supra note 9 at 34.

32

proposed schedule. In addition to circumventing possible ambiguities arising from

statutory construction, such designations will effectively provide coverage for subsequent

positions established within the public sector to automatically be subject to disclosure

requirements.

3 The Special Commission should consider implementing the disclosure law in phases. The

phased implementation scheme should take cognizance of the fact that instantaneous

coverage of the entire public service is impossible at the very least. To that end, there

should be recognition that a time span of two or more years to cover the entire public

service is likely to yield sustainable results than is currently being contemplated.

4 The phased implementation should primarily focus on curtailing grand corruption by

addressing high level corruption in political offices and senior officers in all affected

public sector positions. Beginning with top officials, the law should be applicable to all

politicians and senior officials in public service and related institutions in a descending

order. A gradual and progressive application of disclosure requirements to lower echelons

of the public sector will become easier and more manageable as the effects of top-down

implementation filter down to junior positions.

5 The Special Commission should consider adopting ranges of values in the disclosure

statements than the currently proposed precise values. As earlier indicated, it can be

daunting to establish exact figures to file in declaration statements besides the fact that

certain properties and liquidated funds in banks and related institutions. Adopting such an

33

approach will promote both ease of compliance and pragmatic enforcement of the statute

while subverting possible challenges premised on intrusions into privacy rights under the

Malawi Constitution.

6 The Commission should consider revising the submission of disclosure statements on

commencement of duties and after cessation of duties. It is recommended that requiring

the submission of the disclosure statements within three months after commencing duties

is more practical and pragmatic than the proposed seven days before assuming office.

Second, requiring the submission of the disclosure statement within three months of

cessation of official position is more realistic than three months before; it is often not

possible to know with any measure of specificity that one‟s employment will be

terminated in advance to allow for time to file disclosure statements.

7 The Commission should consider expanding administrative sanctions against breaches of

the disclosure statute. While it is commendable that the Commission has proposed broad

disciplinary sanctions against breaches of the disclosure law, it would be much better if

the range of sanctions was increased. The Commission‟s recommendations on criminal

sanctions reserved for egregious breaches of the statute are equally commendable.

8 The Commission should consider revising the position of the Director of Public Officer‟s

Disclosures of Assets, Liabilities and Business Interests. The ideal situation is to remove

the Director‟s office from possible interference influence and interference of the

executive. The fact of his appointment by the President already gives the President wide

34

powers to influence the effectiveness of the office. Subjecting the Director to direct

control of the President seems counter productive to the very objects of the statute.

Besides the annual reporting requirements and the oversight functions of the Committee

of Parliament is more than adequate to effectively ensure compliance with the law by the

Directorate.

9 The Special Commission should consider empowering the Directorate to verify and

conduct investigations against violations of the statute. The Commission may further

consider establishing thresholds within which the Director may forward cases to the Anti-

Corruption Bureau. This is in direct recognition that there must necessarily be a cut-off

point when an investigation into asset and financial disclosure leads to a full fledged

corruption investigation.

10 The Commission should consider establishing an ad hoc prosecutor within the Director of

Public Prosecutions office to undertake prosecutions of disclosure offences as and when

they arise. The stationing of the special prosecutor within the Director of Public

Prosecution‟s office ensures that there will be no need to establish a separate funded

prosecutor‟s position within the Directorate.153

153

Under the Malawi Constitution (The Malawi Const. s. 99(3)) and s. 79 (1) of the Criminal Procedure

and Evidence Code (Cap. 8:01, Laws of Malawi), all powers of criminal prosecution are vested in a

Director of Public Prosecutions appointed under s. 101(1) Mal. Const. All extraneous prosecutions not

under his direct authority must seek and obtain his prior consent before proceeding with such prosecution.

The prosecutor proposed herein would not be encumbered by this administrative requirement since it

would be established within the Directorate of Public Prosecutions. Compare MALAWI LAW

COMMISSION, 39 (2002) (discussing general criticism against the requirement of Malawi‟s Anti-

Corruption Bureau seeking the Director of Public Prosecution‟s consent under the Corrupt Practices Act

1995, (Act No. 18 of 1995)).

35

V. Conclusion

Malawi‟s proposed asset, liabilities and business interests‟ disclosure law establishes a

sound legal framework for instilling candor and accountability for politicians and public

officials. Nevertheless, challenges will inevitably arise on implementation and enforcement if it

is enacted in its current form because of inherent conceptual and practical shortcomings.

Establishing public ethics to instill candor to curb corruption and enhance constitutionalism and

the rule of law necessarily implicates conceptual difficulties. This is because there is a link

between corruption, constitutionalism and the rule of law that cannot be ignored or overlooked.

Corruption results in the weakening of public institutions and consequently leads to the

erosion of trust in public institutions, law and order. Respect for the rule of law is a pre-condition

for the establishment of an efficient market economy and hence, development. As a corollary,

corruption is antithetical to development and reforms to reduce and ultimately eradicate

corruption will enhance the rule of law and promote development. The prevention of accretion of

wealth through abuse of scarce public resources for private gain thus becomes imperative as a

means of eradicating corruption.

As underscored by Malawi‟s obligations under the several international accords against

corruption, the enactment of the disclosure law is singularly paramount to Malawi‟s interest in

reducing corruption. The proposed legal framework for assets and financial disclosure in Malawi

requires modifications if it is to effectively inculcate candor in politicians and public officials.

Austin Bwagadu Boli Msowoya

April 25, 2008.