Before the Director and the Deputy Director officially took up their posts an organisational structure of the Bureau was prepared. The Management Services Division of the Department of Human Resource Management and Development worked hand-in-hand with the Director to produce a start-up Organisational and Management Structure of the Bureau. It will be reviewed as time goes on depending on the needs of the Bureau, the intention being that the establishment and overall strength of the Bureau will be dictated by the internal work demands in its growth.

On the 1 st of October, 1997, the Department of Human Resource Management and Development conveyed Government approval for the initial establishment of the Bureau. Full details appear as an Appendix to this Report.

LEGAL DOCUMENTS

The Anti-Corruption Bureau is an office that requires the use of a variety of Legal Forms and Documents for effective operational activities. Accordingly the following Legal forms and Documents were devised:

Form ACB 1 COMPLAINT
Form ACB 2 STATEMENT (Page One)
Form ACB 3 STATEMENT (Continuation)
Form ACB 4 INVESTIGATION RECORD
Form ACB 5 CONTINUATION SHEET
Form ACB 6 SEARCH—NO COMPLAINT/COMPLAINT
Form ACB 7 EXHIBIT RECEIVED/RETURNED
Form ACB 8 COMPANY SEARCH
Form ACB 9 MONTHLY ACTIVITY RETURN
Form ACB 10 INVESTIGATION REPORT
Form.ACB l1 CORRUPTION PREVENTION REPOli~
Form ACB 12 INVESTIGATION DOCKET (Folder)
Form ACB 13 CORRUPTION PREVENTION DOCKET (Folder)
Form ACB 14 PROSECUTION DOCKET (Folder)
Form ACB 15 WARRANT OF ARREST
Form ACB 16 INFORMATION TO GROUND ISSUANCE OF A WARRANT OF ARREST
Form ACB 17 WARRANT OF ACCESS AND SEARCH
Form ACB 18 INFORMATION TO GROUND ISSUANCE OF WARRANT OF ACCESS AND SEARCH
Form ACB 19 ORDER TO INSPECT BANKERS BOOKS
Form ACB 20 WARRANT
Form ACB 21 INFORMATION TO GROUND ISSUANCE OF A WARRANT
Form ACB 22 RESTRICTION ON DISPOSAL OF PROPERTY
Form ACB 23 COMPLAINT REGISTER
Form ACB 24 NOTICE TO ALL PUBLIC OFFICERS
Form ACB 25 PROSECUTIONS REGISTER
Form ACB 26 VISITORS BOOK
Form ACB 27 EXHIBITS REGISTER
Form ACB 28 FINGERPRINT FORM

The Solicitor General and Secretary for Justice and the Director of Public Prosecutions were consulted about the legal forms and gave their approval before the Government Printer was commissioned by the Bureau to undertake the printing of the documents. All of the above are now in use in the Bureau.

BUREAU STANDING ORDERS

Bureau Standing Orders aimed at regulating operations of the Anti-Corruption Bureau have been approved by the Minister of Justice in accordance with the Act

CODE OF CONDUCT AND ETHICAL BEHAVIOUR

A Code of Conduct and Ethical Behaviour (which appears as an Appendix to this Report) has been finalised after consultations and it is part of the Bureau Standing Orders. The Code sets ethical standards for all persons employed in the Bureau and will form part of the employees' Conditions of Service. The Code demonstrates the Bureau's commitment to high standards and professional conduct within its ranks. The Bureau intends to fight corruption in the most practicable way, by being in the forefront of all efforts in this regard. The Code has been made bearing in mind that it would not be right nor proper for the Bureau to expect high standards from others without setting for itself demanding standards of behaviour. The Code of Conduct covers areas such as personal and professional conduct, use of information, bribes, financial and private interests, discipline, complaints against the Bureau staff and outside employment.

OFFICE ACCOMMODATION AND EQUIPMENT

Offices have been secured in B & C House, Old Town, Lilongwe and C D L House in Blantyre. Contracts were awarded by Ministry of Works and Supplies to local private companies to carry out rehabilitation and modification in both Blantyre and Lilongwe offices. Telefax lines, as well as telefax lines, are installed in Lilongwe and in Blantyre. Telefaxes are part of the Japanese commodity aid made available to the Bureau through the Treasury. Most of the office equipment has been provided under the Japanese Grant. The equipment has included six computers together with printers, two high speed photocopiers, four electronic typewriters, two manual typewriters, one television set, one video recorder, one video camera, four telefax machines, and eight filing cabinets. Two notebook computers were bought from local resources using the authority of the Government Central Computer Committee and the sanction of the Department of Office Equipment. Furniture and furnishings have been acquired under local resources.

TRANSPORT

Six vehicles have been delivered under the Japanese aid; several more are to be delivered in due course to facilitate operations of the Anti-Corruption Bureau. These include a Public Address vehicle which is also being provided under the Japanese Grant and is expected to enable civic education campaigns to be conducted anywhere within the country, throughout the year.

FINANCES

Parliament approved a budget of seven million Kwacha (K7,000,000) in the 1996/97 financial year. The amount for 1997/98 is ten million, seven hundred and ninety-five thousand, six hundred Kwacha (K10,795,600). There have not been any complications during the year regarding payments which are being made by the Ministry of Justice under an administrative arrangement with the Bureau; this will continue until the staffing position within the Bureau is normalised. Bureau activities began in March, 1997 following the opening and funding of the Bureau's Bank Account. However, only a small portion of the 1996/97 allocation was actually spent. Treasury examined the situation of the Bureau and formally agreed to allow the unspent balance to be utilised under a Deposit Account so that the 1997/98 budget would cover projected operations for that year as approved by Parliament. This has been most invaluable, and has greatly assisted the commencement processes.

DONOR SUPPORT

Assistance to the Bureau has been extended by a number of donors, most of them already referred to in this Report.

The British Government sponsored a visit to Malawi in July 1996 by Mr. Paul Russell, OBE. Following the visit, a Strategic Plan for Bureau operations was outlined and agreed. In September 1996 the British Government funded the participation by the Director at an international symposium which was held in Cambridge, England, on Economic Crime and whose main theme was corruption. In February 1997 Her Majesty's Government, on request, made available the services of Mr. Paul Russell, OBE, as Technical Advisor to the Director, initially for two years, on fully funded terms. Mr. Russell has had a distinguished public service in Zambia, spanning more than thirty years, the last eight years of which he was the Director of Operations in that country's Anti-Corruption Commission. Until the Japanese commodity aid items started to arrive, the Bureau relied heavily on the equipment and materials which have been made available by the British Government for use by the Technical Advisor.

The Government of Japan has provided to the Bureau under the commodity aid programme most of the office equipment and all the motor vehicles. The office equipment includes two heavy duty photocopiers, two medium and two small photocopiers, eight filing cabinets, six computers with printers, six typewriters, and four air-conditioners. A public address vehicle for the Bureau's

planned country-wide civic education campaign is being appropriately fitted outside the country and will be delivered soon.

The Government of Denmark, through the Royal Danish Embassy in Lilongwe, provided funding for the Bureau's attendance at the Global Coalition for Africa Policy Forum in Maputo in 1997. The Bureau has held discussions with the Royal Danish Embassy for support for a massive Civic education campaign, covering the entire country, involving use of both electronic and print media, as well as community outreach programmes. The Embassy has further indicated that Danish aid will not be confined to civic education but might be extended to other operational areas that can be identified as being worthy of support.

The World Bank reimbursed in full travel costs and partially subsistence expenses for the Bureau's participation at the 8th International Anti-Corruption Conference in Peru. The Bank also provided funding for attendance by the Deputy Director at a Workshop on Curbing Corruption, in Cotonou, BENIN, from 12th to 15th January, 1998. However, owing to logistical problems during the time, the Deputy Director was not able to proceed to the Workshop. The Bank, through its Institutional Development Fund grant, has shown interest in supporting the Bureau's Corruption Prevention programme, with special attention given to public procurement.

The fight against corruption is being waged on a world-wide basis, at regional, national and local levels. No single country can succeed on its own. The role of donors is crucial not only to ensure success of national anti-corruption strategies, but more importantly, to reassure taxpayers and funding agencies in their countries that proper systems of checks and balances are in place to safeguard development funds and promote transparency and accountability which are essential components of good governance in a country. The support of donors to the anti-corruption effort is therefore crucial to developing nations such as Malawi. The resources that donors provide do act as a vital complement to Government's own investments in this area and do have a major impact on the operational effectiveness of institutions. In the case of the Bureau, rapid progress has been registered in operational activities due to the active, moral and concrete support of the donor community in Malawi.

COLLABORATION WITH OTHER AGENCIES

The Bureau has made useful contacts with the Anti-Corruption Commission in Zambia, the Directorate on Corruption and Economic Crime in Botswana, the Independent Commission Against Corruption in New South Wales, Australia, and the Independent Commission Against Corruption in Hong Kong. With the Bureau's capacity improving all the time, these contacts will be fully utilised in order for Malawi to learn about best practices in the anti-corruption fight in other jurisdictions.

THE LAW ON CORRUPTION

Although the Corrupt Practices Act is less than three years old, there are already signs that a review will become necessary soon. Corruption is not defined in the Corrupt Practices Act although the Act does define "corruptly" as the "soliciting, accepting or obtaining, or the giving, promising, or offering of gratification by way of a personal temptation or bribe". "Gratification" means payment in cash or kind or in other forms made with the intention to bribe.

Accordingly, all offences centre upon the giving or receiving of bribes (or the possession of unexplained property). This has caused some constraints to effective investigation and prosecution.

Section 10 (1) (b) of the Corrupt Practices Act permits the Bureau to receive and investigate complaints of corrupt practices and, subject to the direction of the Director of Public Prosecutions, prosecute offenders.

Essentially, this means that the Bureau is restricted to handling cases only of corrupt practices as mentioned above. However, it has already become apparent that many cases of alleged or suspected corrupt practices which are reported to the Bureau turn out, upon investigation, to involve other offences, particularly fraud, Fraudulent false accounting and theft. In strict terms, the Bureau is not permitted to investigate such complaints.

In order to allow the Bureau to pursue each and every case to its logical conclusion, therefore, the Bureau will propose in due course an amendment to Section 10 of the Act to allow the Bureau to investigate and prosecute any other offence which comes to the notice of the Bureau during the course of an investigation into a specific act of corruption.

A review of the burden of proof may also be necessary. It is a legal norm in Malawi that no person can be convicted for a criminal offence unless guilty "beyond reasonable doubt". Acts of corruption are very often conducted in secret with few or no witnesses and both parties to the corrupt arrangement are "satisfied" with the outcome.

Getting direct evidence of a corrupt act is therefore generally very difficult and more often than not it is the "consequences" of a corrupt act that are apparent, drawing a conclusion that the result must have been as a result of corruption.

The Bureau feels therefore that there will need to be a review at some stage to consider the burden of proof necessary to secure a conviction for corruption, and suggests that a more appropriate standard would be a conviction based on a "balance of probabilities."

The protection of Whistle Blowers is also important. A "Whistle-blower" is a person who believes that the public interest overrides the interest of the organisation or institution in which he or she serves, and publicly informs the authorities of any corrupt or illegal act in which that organisation or institution is involved.

It is a matter of serious concern to the Bureau that very often those people who are engaged in corruption within an organisation will use whatever means within their power to punish people who are regarded as informers. The Bureau depends upon people who are prepared to dissent openly against corrupt practices which are occurring in any organisation. If an organisation itself does take punitive action against the dissenter then he or she will become the victim of such "whistle-blowing". In order therefore to correct the imbalance, the Bureau intends as soon as possible to propose legal and other protection for whistle-blowers.

The Corrupt Practices Act is not specific in its definition of misuse or abuse of public office. There are signs already that some public officers are very clearly taking advantage of their official positions to accumulate wealth and property or to get goods and services advantageously.

To correct this, a proposal will be made to tighten up Section 32 of the Act which deals with "possession of unexplained property" by including specific authority for the Bureau to "investigate any public officer who has abused or misused his or her office, position or authority to obtain property, wealth, advantage or profit directly or indirectly for himself or herself or any other person". Such an amendment will close permanently this anomally in the present Act.

At the National Integrity Workshop held in Lilongwe in November 1996, other key recommendations were made. These mainly centred upon the independence of the Bureau and included the recommendation that the Director of the Bureau should be answerable to Parliament and not to the Minister as the Act requires at present.

It was also felt that there should be no need for the Director to obtain the consent of the Director of Public Prosecutions before instituting a prosecution as is required at present.

The present situation whereby officers do not have powers of arrest without a warrant is proving to be a handicap to operational efficiency. An effective law enforcement officer will need this power especially in cases where offences of corruption occur within the sight and hearing of the officer.

The Bureau will in due course make formal representations in regard to amendments to the Corrupt Practices Act after holding discussions with major stakeholders to get a general consensus that the changes are necessary.

CRIME AND CORRUPTION: THE ROLE OF THE MEDIA

Public accountability becomes more meaningful where information on crime and corruption is made public and access to information is not limited. Fear of exposure or public ridicule may encourage those in public office to lead a cleaner life.

The Bureau welcomes the positive role the media can and does play in promoting transparency and accountability which are essential components of good governance. However, there is a realization that some of the information reaching the public through this means is either inaccurate or simply politically motivated. If the media is to discharge their responsibilities in informing and educating the public on matters concerning corrupt practices then they are urged to exercise high reporting standards so that there is a clear balance between good media ethics, public interest and what the media perceives the public to want.

THE ANTI-CORRUPTION BUREAU
P.O. BOX 2437
LILONGWE