The Financial Crimes Division of the High Court has discharged former Finance Minister Joseph Mwanamvekha from a case in which he was accused of instructing officials at the Reserve Bank of Malawi (RBM) to present cooked-up figures to the International Monetary Fund (IMF).
He was accused together with former RBM governor Dalitso Kabambe and RBM former deputy governor Henry Mathanga.
More specifically, the charges pertain to the misreporting of Malawi’s Net International Reserves (NIR) and the Gross Reserve Liabilities of the Reserve Bank of Malawi (RBM) during the period spanning 2018 to 2019.
Through his lawyer Kalekeni Kaphale, Mwanamvekha challenged the State mainly on his official capabilities during the period in question as he was serving as Minister of Agriculture, Irrigation and Water Development from November 7, 2018.
He argued that he was appointed minister of finance on June 19, 2019 and only occupied the substantive office for that portfolio in the first week of July, 2019 which was after the end June 2019 reporting date to the IMF.
He further argued that there is no evidence in the disclosure bundles of any interface between himself and any staff of the RBM, let alone any staff of the RBM responsible for computing, calculating, approving or submitting Net International Reserves data before the end December, 2018 and end June 2019 reporting dates to the IMF, and hence that he couldn’t have participated in deceiving the IMF through non-disclosure of information as alleged by the State.
Mwanamvekha said that prosecuting him on the two counts proffered against him is contrary to his right to human dignity as it curtails his liberty and amounts to cruel and degrading treatment as he will be made to undergo a criminal trial when there is no iota of evidence disclosed, linking him to any of the charges.
According to a ruling by Justice Redson Kapindu, the State through Senior State Advocate Festas Sakanda, conceded that it does not have the requisite evidence against the Mwanamvekha, and that based on the evidence it has, chances of a conviction were “unrealistic”.
Following the State’s failure to prosecute Mwanamvekha, Justice Kapindu questioned why he was arrested in the first place.
“I must state, at this point, that the Court has been left to wonder, under the present circumstances, why the 1st Accused person was arrested in the first place, let alone taken through a process of commencement of prosecution by having him take plea in the lower Court when the State was at all material times aware that it did not have evidence against him. Was it a case of arresting him with a view to investigating later, only to realise that there was actually no evidence?
“It has long been stated in the legal circles that the liberty of every human being is sacrosanct and that it should not be lightly interfered with. It is therefore imperative that the prosecutorial legal process against any person, that leads to a curtailment of his or her liberty, should only be based on well-founded evidence.
“Thus, when they realize that there is no evidence or credible evidence against an accused person who has incidentally already been arrested, and a prosecution process commenced, the prosecutorial authorities are under a constitutional obligation to make sure that they take active steps to terminate the prosecutorial process at the earliest opportunity.
“That, in this Court’s view, is the essence of the constitutional and statutory powers of discontinuance that they have been invested with. There are of course other factors such as public interest considerations based upon which a discontinuance might be entered, but this is not a consideration in the present matter,” reads part of the ruling delivered on January 9, 2023 in Lilongwe.
Kapindu ordered that the State has liberty to commence subsequent proceedings against Mwanamvekha on the same charges within 12 months, failure which, the discharge shall become absolute and shall operate as an acquittal.
In its November 17 2022 statement on the matter, the IMF said Malawi misreported on its observance of the performance criteria on the floor on the NIR of RBM, leading to the noncomplying disbursements.
“At the time of the first and combined second and third reviews under the ECF arrangement, the NIR for end-June and end-December 2018, and end-June 2019 were incorrectly reported.
“RBM’s gross reserve assets were overstated due to inclusion of both: (i) pledged term deposits, and (ii) assets through contracting short-term swaps, whereas the Technical Memorandum of Understanding definition of the gross reserves assets explicitly excluded both,” reads a statement from the IMF.
