R v Matemba (Criminal Cause 15 of 2023) [2025] MWHC 9 (4 March 2025)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY FINANCIAL CRIMES DIVISION CRIMINAL CAUSE NO. 15 OF 2023 BETWEEN THE REPUBLIC -AND- REYNECK MATEMBA CORAM: HON. JUSTICE VIOLET PALIKENA-CHIPAO Ms. Lapozo/Mr. Sambani/Mlava, Counsel for the State Accused Person present but not represented Ms. Mkochi, Court Clerk Chipao, J RULING ON CASE OR NO CASE TO ANSWER 1, The Accused Person, Reyneck Matemba, stands charged with two counts of failure to declare interest by a public officer contrary to section 25D(2)(a) as read together with section 34 of the Corrupt Practices Act (herein after the CPA). The particulars of count one were that Reyneck Matemba being a public officer and in his capacity as an Ex-Officio Board Member of the Public Procurement and Disposal of Assets Authority by virtue of his appointment as Solicitor General and Secretary to the Ministry of Justice and Constitutional Affairs, on or around 5" June 2021, at Makokola Retreat in Mangochi District, failed to declare his interest in a Board Meeting which reviewed and granted a ‘No Objection’ for the Malawi Police Service to award a contract reference number MPS/SB/16/04/2021 worth of USD7,875,000.00 to Kaviar Limited for the supply and delivery of 350,000 ration packs, despite having knowledge that the Director of Xaviar Limited was Zuneth Abdul Rashid Sattar, also known as Josan or JK, who was his close associate and had a direct interest in the said contract. 3. The particulars of the second count are that Reyneck Matemba being a public officer by virtue of his appointment as Solicitor General and Secretary to the Ministry of Justice and Constitutional Affairs, on or around 15!" July 2021, in Lilongwe District, failed to declare his interest and vetted a contract reference number MPS/SB/16/04/2021 worth of USD7,875,000.00 between Malawi Police Service and Xaviar Limited, for the supply and delivery of 350,000 ration packs, despite having knowledge that the Director of Xaviar Limited was Zuneth Abdul Rashid Sattar, also known as Josan or JK, who was his close associate and had a direct interest in the said contract. 4. The Accused Person entered a plea of not guilty in respect of the two counts necessitating the calling of witnesses by the Prosecution to prove their case. Fifteen witnesses were called by the Prosecution in proof of the allegations. The Prosecution has now closed its case. The Evidence 5. The State paraded 15 witnesses in proof of the allegations levelled against the Accused Persons. The witnesses were as follows: 1) Prosecution Witness No. 1 (PW1) was Peter Chewo; Deputy Director of Human Resource Management and Development; 2) PW2 was Mrs. Merlyne Yolamu, Inspector General of the Malawi Police Service; 3) PW3 was Mr. Hamza Suwed Laini, an employee of TNM PLC as a loyalty and : Rewards Specialist, responsible for supervising officers who work in the KYC (Know Your Customer) section whose primary duty is to verify KYC records; 4) PW4 was Mr. Sam Chimang’anga, Procurement and Administration Specialist for Export Development Bank Limited and a member of the PPDA Board at the material time; 5) PW5 was Mirriam Nsomba, Managing Director of an ICT company called Amil Limited and a member of the PPDA Board at the material time 6) PW6 was Mr. Jonathan David Merdith, Liaison Officer for National Crimes Agency (NCA) since March 2020; 7) PW7 was Mark Reeves, Senior Officer from NCA in the United Kingdom(UK) and part of the investigating team that was investigating Zuneth Sattar in relation to bribery offences in UK; 8) PW8 was Mr. Isaak Nkhoma, Principal Investigations Officer with Anti-Corruption Bureau (ACB); 9) PW9 was Mr. Benedicto Chagunda, Principal Systems Analysist with the ACB; 10) PW10 was Mr. Jack Vinthenga, Principal Investigations Officer with the ACB ; 11) PW11 was Mrs. Wako Nthiliro, Head of KYC at Airtel Malawi; 12) PW12 was Mrs. Jane Jere, holder of National Id number which was used to register phone number 0994338882; 13) PW13 was Mr. Alison Mbang’ombe, Solicitor General and Secretary for Justice in the Ministry of Justice and Constitutional Affairs’ 14) PW14 was McFaren Jere, Officer In-Charge Quarter Master with the Malawi Police Service at the time of the alleged commission of the offence; and 15) PW15 was Mr. Steve Goru, Principal Investigations Officer with the ACB. 6. PW1 was Peter Cheyo. His evidence was that the Accused Person is an employee in the Public Service who served as Director of the ACB before being moved to the Ministry of Justice and Constitutional Affairs as Solicitor General and Secretary for Justice. 7. PW2 was Merlyn Yolamu. At the time of the alleged offence, she was the Deputy Inspector General responsible for Administration (DIG A). By virtual of being DIG A, she was the chairperson of the Internal Procurement and Disposal of Assets Committee (IPDC) of the Malawi Police Service. In her evidence, she explained the procurement process from initiation to the end where a contract is signed. 8. In relation to the charges which related to the procurement of 350, 000 dry rations from Xavier Limited, PW2 explained that the process started with a requisition which was initiated by the quartermaster for the procurement of dry ration. She explained that the contract went through various processes before a decision was made to procure from Xavier Limited, the 350, 000 dry ration packs. The process included obtaining of necessary approvals from PPDA. She stated in her evidence that eventually, Malawi Police Service and Xavier Limited entered into a contract for the supply and delivery of 350, 000 packs of dry ration worthy USD7, 875, 000.00 under Contract No. MPS/SB/16/04/2021. The contract was executed on 14"" September 2021 by PW2 on behalf of the Malawi Police Service and Mr. Mwabi Kalua (Legal Officer) as witness; and Zuneth Sattar as Director of Xavier Limited and Ashok Kumar as witness. The Contract was tendered as Exhibit P4. 9. In cross examination, PW2 said she could not dispute that at the time of the contract, the Malawi Police Service had been cleared by the ACB to proceed to enter into a contract with Xavier Limited. Upon being referred to correspondence between the ACB and Malawi 3 10. 11, 12. 13, 14, Police Service (MPS) dated 29" J anuary 2021; ACB and PPDA dated 29"" June 2021 and PPDA and MPS dated 30" June 2021, she said that one can conclude that the PPDA does not grant a no objection before clearance from the ACB. She told the court that the MPS IPDC opted for Xavier Limited after other five potential suppliers fell off along the way for various reasons. The other suppliers were, H. Adams (Malawi Company), Pioneer Investment and One Guard FZE which were dropped because they were under investigations by ACB; Tactical Distributors and Moonstone General Trading were deemed unresponsive by the evaluation team because they lacked experience. PW2 said that Xavier Limited was chosen on merit and not for any other reason. PW2 also said that the MPS wrote the Accused person on 14" July requesting him to vet the proposed contract to procure dry ration from Xavier Limited as required by the PPDA in its letter dated 30" June 2021. She acknowledged that at this point, a decision had already been made by the MPS to procure from Xavier Limited and the ACB and PPDA had already vetted the proposed contract and given a No Objection. She also acknowledged that the duty of the Accused Person was just to look at the legal aspects of the contract and not the procurement issues and that it is the PPDA which has the overall mandate over procurement issues in Malawi. PW2 acknowledged that the letter from the Solicitor General (the Accused Person) dated 15" July 2021 laid down conditions to be fulfilled before the contract is signed by the MPS. The conditions included obtaining clearance from the Government Contracting Unit (GCU) and Secretary to Treasury (ST). She also said that according to the letter, the Accused left the Police with the power to decide whether to enter into a contract or not upon fulfilling the conditions. Although the contract was executed, PW2 said that the MPS paid nothing on the contract and that as far as she knows, no government money was lost on the contract. PW2 was pressed to say whether she had any evidence that the Accused Person committed the offence charged but she repeatedly said that she could not answer that question because her duty was to explain to the court procedures that the MPS followed in awarding the contract to Xavier Limited. PW3, Mr. Hamza Suwed Laini was responsible for supervising workers who work in the KYC Department of TNM. His evidence was to the effect that cell number 0888978590 was a number registered using driving licence 0216121403507 bearing the name of Reyneck Thokozani Matemba. The number was later updated using national identity card number NTPS9DR bearing the same name. His evidence was unchallenged. It is therefore 15, 16. IT. 18. 19, 20. a finding of fact from his evidence that cell number 0888978590 is registered under the name of Reyneck Thokozani Matemba. PW4, Mr. Sam Chimang’anga, told the court that he was appointed a member of the PPDA ti September 2020. He said at the time of his appointment, the board chairperson was John Suzi Banda and members were Constance Musopole, Mirriam Nsomba, Dr. Janet Banda, Loyce Chilinsungwi and the Accused Person. PW4 explained the duties of the Board of PPDA and also said that Board Members are supposed to declare interest early in the meeting after preliminary matters of the Board such as introductions. He said that any member who has an interest in a subject of discussion, is supposed to declare his interest and recuse himself from the meeting and cannot participate in any decision making concerning the matter. He said interest is declared where there is a request from the PDE (Procuring and Disposing Entity) where the declaring member has an interest or where the supplier is said to be a relation or an associate. In relation to the Board Meeting at which the Contract No. MPS/SB/16/04/2021 for the procurement of 350, 000 dry ration was discussed and deliberated, PW4 said no one declared interest. PW4 tendered in evidence a Board Pack and Minutes of the PPDA for a meeting held at Makokola Retreat on 5"" June 2021 as Exhibit P6 and P7. Item No. 19 on the minutes was the contract of procurement of 350, 000 dry ration from Xavier Limited by MPS. PW4 said that the Board Pack was received in advance before the meeting. He further said that the Board Meeting deliberated over the proposed contract and considered several options including rejecting the contract as the cost of procuring the ration was high but having considered the challenge of giving police officers allowances to buy food, the Board concluded that it was better to approve with procurement of dry ration. As such the Board approved the procurement of dry ration from Xavier Limited. PW4 stated in his evidence that the approval was a well thought and considered decision of the Board and that the Board did not just rubber stamp the decision. PW4 further told the Court that there was no procedure that he was aware of that allowed the suppliers to interact with any member of the Board In cross examination, PW4 said that he could not find fault with the decision of the Board as they based their decision on merit and having considered several considerations. He also said that before going before the Board for approval, a request passes through technical officers who review the requests and only sends it to the Board when they find it to be in order. He also said that the Board does not issue a ‘No Objection ‘ until after vetting and approval by ACB. 21. 23 24. 25. 26. 27, 28. 29. PW4 in further cross examination, explained that a Board Member is required to declare interest if the request is coming from a PDE where a member has an interest or if the supplier is a relation or an associate of the member. He said the request in the present case came from MPS and he had no evidence that the accused person had any interest in the PDE (MPS) or that the supplier, Zuneth Sattar was a relation or a close associate of the Accused. . PW4 also said that the PPDA Board is governed by the PPDA Act and that the basis for declaration of interest is contained in the Act in section 22. PW4 said that the basis for declaration of interest is pecuniary interest but he said he does not know if the Accused Person had any pecuniary interest in the contract which the Board was considering. In terms of declaration of interest, PW4 mentioned several scenarios and said that others were not in relation to the PPDA but in relation to declaration of interest generally. PW4 was taken to task over similarities in his statement and that of Mirriam Nsomba. He agreed that the two statements were similar but he said he was interviewed separately from Mirriam Nsomba and on different dates. In re-examination, PW4 said that when he was giving his statement to ACB, he was talking of declaration of interest generally and that the PPDA Act was not in his mind. PWS, Mirriam Nsomba, is another PPDA Board member who served from September 2020 to September 2023. Her evidence is similar to the evidence of PW4. She said that before the start of a board meeting, every member is given a declaration form to fill, declaring his interest in the matter to be reviewed by the Board. She too said that interest is declared where one has an interest in the PDE or the supplier is a relation or an associate of the member. She told the Court that there was no procedure that she was aware of that allowed the suppliers to interact with any member of the Board. In cross examination, she maintained that interest is declared where one has an interest in the PDE or the supplier is a relation or an associate of the member. She said she had no evidence that the Accused Person had an interest in the MPS or that the supplier Zuneth Sattar was a relation or a close associate of the Accused Person. She also said that the law governing the Board is the PPDA Act and that it is the PPDA Act which provides the basis for declaration of interest. She was asked to read section 22 which shows that basis for declaration of interest is pecuniary interest but she said she did not know what pecuniary interest meant. The Accused Person explained her understanding of pecuniary interest to mean relating to money, financial or monetary or business interest and 6 30. 31. 32. 33s 34. 35. 36. 37. 38. PWS said that She did not know if the Accused Person had any pecuniary interest in the contract. She further said that in deliberating the contract, the Board considered several options including rejecting the procurement of rations and considering payment of allowances but in the end resolved to approve the procurement. The Witness was shown a Conflict of Interest Declaration Form which she said is the one which members of the PPDA Board use at their meetings. PWS5 was also taken to task over similarities in her statement and that of PW4. In re-examination, PWS maintained that the law that governs the Board is the PPDA Act. PW6 was Mr. Jonathan Meredith, the International Liaison Officer from the NCA, UK. He told the court that his duties include working closely with International Law Enforcement Agencies in other countries. He said he is responsible for sharing information and organising matters of mutual legal assistance around transnational crime investigations. In'relation to the Sattar Case, he said his role was to liaise with the Malawi ACB for it became clear that Sattar had links with several Malawian Civil Servants and Politically Exposed Persons (PEPs). He said that in the context of that liaison, he visited Malawi on several occasions and met with ACB officers. The occasions include March, October and November 2021 and May and June 2022. PW6 said that NCA received information from a variety of sources that Sattar was involved in bribery of foreign officials which was an offence covered under their law. He said that in October 2021, he met with ACB officers to cooperate and collaborate on investigations relating to bribes paid in Malawi. He said through the cooperation, they shared with Malawi ACB pieces of information which they deemed relevant. He said NCA signed an agreement with the ACB to facilitate information sharing He also said that Sattar was being investigated on allegations of money laundering and bribery relating to bribes paid to public officials in Malawi. He further said that ACB launched independent investigations into Sattar and his suspected agents in Malawi In cross examination, PW6 said that sharing of intelligence on cases of mutual interests on informal police to police basis is not the same as organising the exchange of evidence. Said that what happened between ACB and in NCA was sharing of intelligence and not exchange of evidence. He said that intelligence and evidence are different and that the processes of sharing the two are also different. He also said that organising the exchange of evidence is formally done using the central authority, which in the UK is the Home 39, 40. 41. 42. 43. 44. 45, 46. Office and not the NCA and that in the case of Malawi, it is the office of the Attorney General, and that this has not been done. PW6 also said he had come to court to provide evidence on investigations lawfully gathered in the UK. PW6 said they shared with ACB intelligence which included audios recordings and extracts of images from Zuneth Sattar’s case. When quizzed on whether what he shared with ACB was evidence or intelligence, PW6 said that it was up to the Court to decide. When referred to volume 4 page 8 of the disclosures, PW6 acknowledged that the cooperation was between the ACB and the International Anti-Corruption Coordination Centre TACCC). In re-examination, PW6 said that he did not sign the agreement which the accused referred him to and that he was seeing it in court for the first time. He however said that there is an agreement which was signed between NCA and ACB in 2021. PW6 also said that he initially provided information but later came to Malawi to provide witness statements in Malawi to turn the information into evidence. He also said that evidence is only shared through competent authorities but that in UK other forms can be used where a witness volunteers to give evidence in the UK. In further re-examination, PW6 said that turning is a process of changing one thing into something. PW6 also said that he was under the impression that by providing a witness statement, it would give Malawi Court evidence in its own right. PW7 was Mark Reeves, from NCA London. His evidence was that he was investigating Sattar in relation to bribery offences under the UK legislation and specifically under the money laundering and proceeds of crime legislation. He said that there were allegations that Sattar was bribing public officials to obtain contracts with MPS and Malawi Defence Force (MDF). PW7 further told the court that as part of their investigations in the UK, they conducted a covert surveillance by way of, among other things, mobile surveillance, deployment of audio equipment, listening to conversations and recording audio conversations at his business premises. He also said that they conducted a search of his offices and home and recovered a number of government contracts for huge sums of money. He said there was a huge margin between the sums of money in the contract and the sums of money in the invoice from the suppliers. PW7 identified documents from pages 26 to 42 as follows: 1) IDP1 (page 26) 2) IDP2 (page 31) 47, 48. 49. 50. 51. 52. 53. 3) IDP3 (page 36) 4) IDP4 (page 39) 5) IDPS (page 42) PW7 said that they applied for search warrants before conducting the searches. The search warrants were identified as IDP6 for his home and IDP7 for his offices. He said that at the same time, ACB also conducted a search of Sattar’s house. He went further to say that the recordings were downloaded by NCA officers and passed on to the witness. PW7 also said that WhatsApp messages were also extracted from a phone confiscated from Sattar’s place here in Malawi. He said from the search they recovered several documents on contracts between MDF, MPS and Sattar among which was a contract of 350, 000 food ration packs with MPS. PW7 said that the contract on food rations showed a very huge margin between the suppliers cost and the cost charged to the Malawi Government and this raised concerns of corruption. PW7 also said that the investigating team seized a phone from Sattar’s house which after a full download and examination revealed that the phone had a Sim card not registered on any network but was operating solely on internet basis. The phone had only been used from March to October 2021. He said they identified from the phone correspondence a number of people believed to be Malawi government officials. He said the WhatsApp messages on the phone were about contracts and payments in cash or gifts. So they decided to offer the information to the ACB. He went further to say that in November, he presented to ACB a copy of the WhatsApp downloads and audio lawfully obtained from Sattar’s home and business places. He said he gave the same to Isaac Nkhoma in the presence of Jack Banda and Martha Chizuma. He said he provided the information for evidential use in Malawi. PW7 was shown Exhibit P4 and he confirmed that it was obtained from Sattar’s place. In cross examination, PW7 said that he was part of the investigating team but he is not the one who did the phone download. He said the downloading was done by another investigator but passed on to him and he passed it on to the ACB to use it in their investigations. PW7 acknowledged to have listened to the audios and read the WhatsApp messages but he said there was nothing that talked about payment of bribes to the Accused Person. He acknowledged that he knows that the Accused was arrested on allegations of bribes but he said he does not know why the bribery charges were dropped. 54. 55. 56. a4 58. 59. 60. 61. In re-examination, PW7 said he obtained evidence in UK which was passed on to ACB to assist ACB in its investigations. He however said that some texts were in foreign language which he could not understand. He conceded that there was no text which mentioned the accused person. He also conceded that in his testimony he kept referring to text messages but there was no text between Sattar and the Accused. He however said there were texts between Ashok and Sattar talking about payment to Matemba of $10, 000. Because the issue of Ashok was a new issue introduced in re-examination, the accused was allowed to recross examine the witness. In re-cross examination, PW7 said that there was a discussion between Ashok and Sattar which said pay Matemba 10, 000 which he said he presumed to be $10, 000. When however shown the WhatsApp text, he conceded that there was no mention of $10, 000 but SK which he presumed to be 5, 000. He also conceded that there was no text which said Sattar ordered payment of $5, 000 to Matemba. Ti farther re-examination, PW7 said that he believed that there was a message to pay Matemba $5, 000. He however conceded that there was no wording saying pay Matemba. He said he believed there was $10, 000 but it could be in relation to another matter. PW8 was Isaac Nkhoma, Principal Investigations Officer with ACB. He told the court that on 26" November, 2021, he was called by the Director General of ACB (DG) to her office where she introduced him to officers from NCA. She informed him that NCA was conducting investigations into Sattar on allegations that he was bribing foreign public official in Malawi. He said that NCA had come to share intelligence with ACB and that if ACB finds merit, it can carry out investigations into the matter, PW8 said that the DG said there will be a complaint review committee after which an investigation team will be set up once there is merit in the complaint, PW8 said that NCA, Mark Reeves handed over to him an encrypted hard drive which had two files. He said the hard drive needed a password for access and Mark Reeves demonstrated to him how to access the same. He said he sealed the hard drive and kept it under lock. PW8 later raised 11 copies of the hard disc for use during investigations because he said he did not want to be using the original because they did not want to make any changes to it. He said the 11 copies were made by Mr. Benedicto Chagunda. PW8 tendered the hard drive as Exhibit P8. In cross examination, PW8 said he was not part of the investigation team investigating bribery against Sattar but he said the ACB carried independent investigations. He said there is independent evidence apart from the texts and audios. 10 62. 63. 64. 65. 66. 67. 68. 69. On the hard drive, PW8 said he tendered it as he received it from NCA without tampering with it. He said he received intelligence and he tendered it. He said they confirmed that what was contained in the texts and audios is true, PWS was showed witness statements of Mirriam Nsomba and Sam Chimang’anga. He acknowledged to have written the statements. He said they recorded responses as they interviewed the two but later drew witness statements from the recorded notes. He said statements of the two witnesses were recorded on different dates; one in Lilongwe and the other in Blantyre. PW8 said that the two witnesses were asked the same questions but he said it was not possible for two people interviewed separately to give exactly the same answer to the same question. He however acknowledged that there was a striking similarity between the statement of the two witnesses. He was referred to several paragraphs in the statements of the two which were strikingly similar and he conceded the same. In re-examination, PW8 said that ACB received the hard drive as intelligence but the ACB investigating team which analysed the evidence, verified some information and confirmed that what is in the hard drive happened on the ground bringing the hard drive into evidence. On the statements of the two witnesses Chimang’anga and another, PW8 said that the investigators took notes on interviewing the two, consolidated the notes and then came up with witness statements which the witnesses were able to later correct before signing. He said the statements were not recorded verbatim but as a summary of what the witnesses said. He also said he first met Sam on 1°! August 2021 and Sam signed his statement on 13 August and that the dates were a typing error. PW9 was Benedicto Chagunda, Principal Systems Analyst. He said he was approached by PWS8 to copy data from a hard drive to 11 blank hard drives. He said the hard drive was unlocked by PW8 and after he was done, he handed over everything to PW8. PW10 was Jack Vinthenga Banda, Principal Investigation Officer with ACB. He said they received documentation from National Audit Officer to do with various contracts involving Xavier Limited owned by Sattar. He tendered the document from NAO as Exhibit P9. PW10 said at that time the ACB DG was the accused person. As part of the investigation, PW10 went to the UK and after the trip, he made a report to the Accused Person as DG which he tendered as Exhibit P10. He said the investigations were not completed but the same stalled. PW10 went further to say that later in 2021, he received an allegation that Sattar was bribing government officials in order to obtain contracts. Following the allegation, ACB went to 1] 70. i. 72. 73. 74. the house and offices of Ashok at Area 9 upon obtaining warrants of search and seizure where they found documents relating to Sattar and Xavier Limited. These documents were letters dated 30" January 2020 (letter written by the DG Reyneck Matemba clearing Sattar and his corporate entities of wrong doing) and another letter dated 31* January 2020 (granting MPS no objection to go ahead and award contract to Xavier Limited for supply and delivery of dry ration), He also tendered other documents found at Ashok’s house namely: 1) Apostille as Exhibit P12, 2) Certificate of authentication signed by Ambassador Makawa as Exhibit P13, and 3) Letter from ACB to ODPP requesting for no objection as Exhibit P14. In cross examination, he said Exhibit P9 is an extract from a case file and not report from NAO. He said they did investigations on the report. He acknowledged that the report had warmed against its use but he said the court should rely on the report. When referred to Exhibit P10, he said there is no mention of Xavier Limited but he said the case stalled. He said he does not know why the case stalled but he said the Accused did not stop him from investigating. When referred to a statement from PW2, PW10 responded by stating that the IG said that they were left with one company for single sourcing and which was Xavier Limited. He said the case in respect of Xavier Limited was still active. On vetting, he said a PDE writes the ACB for vetting and vetting is done by the Corruption Prevention Department of ACB and that the DG does not take part in the vetting but only signs the letter after clearance or approval from the relevant office. He said ACB cleared Xavier Limited. PW10 said he took no role in vetting the contract but Suzan Phiri. He also said that according to Suzan Phiri No Objection was given. He also said that the issue of clearance of Xavier Limited was also confirmed by Kasoka. When shown Exhibit P11, PW10 said it is about inquiry on Sattar. He said an inquiry is an investigation. He said according to him an inquiry is not about seeking information. He acknowledged that by 30"" January 2020 Sattar was not under arrest by ACB or any enforcement agency. PW10 said he did not agree with the accused on the interpretation of inquiry to mean seeking information but that it meant investigations. PW10 also said he was not aware of a number of investigations against Sattar where Sattar was cleared of any wrong doing. When shown Exhibit P11 however, he said the sentence ‘he was cleared was referring to past events. PW10 when asked as to whether he was aware that Sattar was investigated in 2017 and was cleared, he said he did not know. He expressed ignorance on investigations and clearance 12 75. 76. Fh 78. 79. 80. on allegations that Sattar was receiving payments for goods not supplied and that he was inflating prices in 2017. The Accused referred PW10 to certificates of good standing and clearance relating to companies owned by Sattar and he said these refer to past events. When shown a letter dated 30! January 2020, PW10 said that the letter refers to another letter which was not made available to him. He however said he could not agree that the letter was clearing Sattar and his corporate entities absence of the letter dated 24!" J anuary 2020. Although PW10 acknowledged that the DG of ACB receives inquiries in form of emails or letters from companies, contractors or government ministries asking for information as part of their vetting, he denied that the letter of 30" J anuary was such an inquiry. On issue of investigations on Xavier Limited stalling, PW10 said that he does not know why the investigations stalled. He however acknowledged that the accused person never stopped him from investigating the case. When shown witness statement from PW2 which said Xavier Limited was allowed to bid because it was not under investigations by ACB, PW10 said that Xavier Limited was still under investigations. The witness also confirmed that the vetting process as outlined by Suzan Phiri was correct and that the Xavier Limited was cleared for an award of the food ratio contract after vetting by the Corruption Prevention Contract and who consulted with three Senior Investigations Officers. In re-examination, PW10 said that the statement of PW2 was taken in J anuary 2022 and he himself gave a statement after the arrest of the Accused Person. When shown Exhibit P9, he said he studied the file after it was assigned to him by the Accused Person. He said he was talking about Sattar in the report but he could not put some specific information as reports go to HR department where the people are not involved in investigations and they don’t want to give such people information for matters of investigations which are still in progress. PW10 also said he took no role in the vetting of the Contract but Suzan Phiri. When shown Exhibit P14, he said it was signed by the Accused Person. PW10 also said that investigations into Sattar reopened in October 2021. He said the contract between MPS and Xavier Limited as entered into in September 2021. PW11 was Wako Nthiliro, a resident of Area 47 working with Airtel Malawi and heading the KYC section. His duties include managing the entire KYC process from registration to validation. He also explained the process that retailers follow to register a new client into the system and the validation that the back office does before approving the registration. He said that the validating process checks if the ID matches with the other information 13 81, 82. 83. 84, 85. 86. provided by the client and once there is a match, then the number is activated for use by the client. For number 099433882, PW11 said that the system shows that it was registered in the name of Jane Jere. He tendered in court as Exhibit P15, copy of the national Id of Jane Jere. PW12 was McFarlen Jere, retired Police officer. He was at the time of the alleged commission of the offence, Officer In charge Quartermaster. His duties included receiving goods purchased by the MPS, raising requisitions for goods needed by MPS, keeping stores and distributing goods to end users. PW12 explained the process of raising requisitions which he said could be initiated when he gets a request for items which are not in stock or his bosses at headquarters would ask him to issue a requisition for items needed at the headquarters. In relation to the matter at hand, PW12 said that on 17" December 2020, he received a call on WhatsApp from a person who introduced himself as Zuneth Sattar who informed PW12 that he (Sattar) had been given a contract by the government to supply ration to the MPS. He further said that Sattar asked him to generate a requisition for the same but PW12 refused to comply with the direction on the basis that he could not get instructions from a supplier but from his boss the IG. PW12 said that he had a first encounter with Sattar in 2006 when he was supplying goods to the MPS. He further said that he called the IG, Dr. Kainja and reported what Sattar had said. He said Dr. Kainja’s response was that the government was planning to buy ration for the MPS and therefore that PW12 should generate the requisition. Following this, he generated a requisition for procurement of 210, 000 ration packs which he sent to the headquarters. PW12 said the IPDC under the chairmanship of PW2 agreed to give a contract to Zuneth Sattar for supply of 350, 000 ration food packs. PW12 went further to say that in May 2021 he missed calls from Sattar and later when they talked, Sattar told PW12 to go to Lilongwe and meet with Ashok who was going to give PW12 a gift. He agreed and he travelled to Lilongwe on the agreed date but upon arrival, Sattar was not picking his phone but later directed him to meet Ashok. PW12 went to Ashok’s office and Ashok gave him an envelope containing K2, 000, 000. PW12 said he texted a thank you message to Sattar. PW12 was shown page 7 of volume 5 of bundle of disclosures and he acknowledged that it showed PW12’s picture and phone number 0999895100 and another number which he had been communicating with Sattar. He tendered the messages exchanged between him and Sattar as Exhibit P16, 14 87. 88. 89. 90. 91, 92. 93. 94. In cross examination, PW12 said that he retired before his retirement age upon considering that he was getting old, that he wants to look after his old father and to run his business whilst still energetic. PW12 conceded that he received a bribe of K2, 000, 000 from Ashok. He said he was promised K5, 000, 000 but only received K2, 000, 000. He said the money he received was a gift but he does not know what the gift was for. He also said that he had refused to take instructions from Sattar. He denied to have retired so that he can get his money for fear of an arrest and prosecution. PW 12 said that the ACB is not prosecuting him but that it is the ACB which is better placed to explain why. He denied to have made any deal with ACB. In re-examination, PW12 said that he was given K2, 000, 000 as a gift. He said as a Malawian, when one is given a gift, you don’t question the giver as to why they have given you a gift. He also said that the ACB is prosecuting his case. PW13 was Alick Mbang’ombe, Solicitor General and Secretary for Justice (SG) in the Ministry of Justice. In his evidence, he explained that his duties include the vetting of contracts, providing legal opinions to government together with the Attorney General and drafting bills presented to parliament. PW13 said that the SG has no duty to communicate with suppliers and is not responsible for updating suppliers on vetting of contracts. He also said that the SG is not responsible for communicating with suppliers when government contracts are being vetted by other agencies. He acknowledged that suppliers may call to ask for information and it is up to you whether to provide the requested information or not but you are not under obligation to provide the information. PW13 said that as a member of the PPDA Board, his duties are to approve procurement submissions submitted to the PPDA just as the other members of the board. He said that there is a form of conflict of interest which members sign when they know that they have a conflict of interest in a matter under consideration. In cross examination, PW13 said that he was appointed SG in May 2022 and became a member of the PPDA Board by operation of the law. He said the powers and mandate of the PPDA Board comes from the PPDA Act and the Constitution. He explained the duties of members of the PPDA Board and the procedure for declaration of interest. He explained that the basis of declaration of interest is section 22 of the PPDA where the nature of interest is direct or indirect pecuniary interest. He said pecuniary interest is to do with financial issues. 15 95. 96. 97. 98. 99, 100. PW13 said that in vetting, the Board looks at procurement issues as well as legal issues focusing on the procurement. He was referred to section 4 of the PPDA Act on functions of the PPDA and he said that the Solicitor General sits on the board, as a government legal advisor. On vetting of contracts, PW13 said that they look at legality; enforceability, protection of government interests, compliance with standard forms of contract. He said it is normal to redraft a provision in the contract and advise a PDE on how a particular provision should be drafted. PW13 said there was nothing wrong with the letter that the Accused Person wrote to the MPS on 15" July 2021. He also said that PPDA Board does not do vetting before clearance from ACB. He therefore said that when a PDE writes the SG for vetting and indicating that they have a No Objection from PPDA, it means ACB already cleared the contract. He said there is no need to call ACB to confirm the clearance. PW13 also said that vetting provides advice and not direction to enter into a contract and that the MPS was not forced to enter into a contract. He also said negotiation is done before the contract is sent to the SG for vetting. He also said that ACB and PPDA had already given a go ahead on the contract and Sattar was aware that he was the preferred supplier. He also said that at the time, the contract is sent to the SG, issues of pricing, mode of delivery and terms of payment are already negotiated and that the SG has no mandate to choose who to award the contract to. He also said that contracts are not the same because they are negotiated. PW13 said the SG has a dual mandate as an SG and also as a member of the PPDA Board. The latter is by operation of the law. He said that there is no conflict of interest because he looks at two different issues; procurement issues, and legality and enforceability of the contract. He also said that vetting does not really require a meeting but one can delegate. He acknowledged that people may call you as SG to inquire on their contracts and you get surprised as to how they got your contacts. He said what matters is what you do with those calls as SG. PW13 said that at Ministry of Justice, they do not have declaration of interest forms. PW14 was Jane Jere. She identified a copy of her national ID which is on page 3 Vol 5 of the bundle of disclosures. Her evidence was that in April 2021, she came to Lilongwe from Mzimba to see her sister. She took her national ID with her and upon return to Mzimba she discovered that her national ID was missing. She later went to register again and got another national ID in 2022. 16 101. When shown phone number 0994338882, PW14 said she does not know the number and that she has never used that number. She said she does not know Zuneth Sattar or the Accused. She also said she does not know anything about MPS and Xavier Limited. 102. PW15 is Steven Goru, Principal Investigating Officer with the ACB. He told the Court that he was one of the officers that investigated the Accused Person, He was incorporated into the investigating team in December 2021 but allegations were received in October 2021. He said the allegations were that Sattar and his agent Ashok were bribing PEPs and public officers in order to get contracts with the Malawi government for his companies one of which was Xavier Limited. 103. . PW15 was given an external hard drive by Isaac Nkhoma which was a copy of the original which the ACB had received from NCA. He said there are several WhatsApp conversations on the hard drive derived from the phone of Sattar. He said he concentrated on the name of the Accused as it appears in the charts and it showed that the Accused Person was using phone number 0888979590 and that the other number 0994338882 was registered as Josan on WhatsApp but it belonged to Sattar. 104. PW15 said he went to TNM and Airtel for the KYC and he was advised that the TNM line was registered in the name of the Accused Person and the Airtel line in the name of Jane Jere. He said he contacted Jane Jere who said she does not know the number. J ane Jere also informed him that at one time, she came to Lilongwe to see a sick relative and she then discovered that she had lost her national Id when she returned to Mzimba. Jane Jere said she had to apply for another national Id which was issued in November 2021. 105. PW15 said that Sattar was also communicating with other people using the same Airtel tine number and that some of the people confirmed the same number. One of such people md McFarlen Jere from MPS. 106. PW15 was handed over a hard drive which he said is the one that was given to him by Isaac Nkhoma. He was also handed over electronic gadget. He explained that there were conversations between the Accused Person and Sattar. He said that the extracted chats show that right from April 2021, Sattar and the Accused Person were acquaintances. He said they would call each other brother and that the accused even said it has been long. He said from the conversations it shows they have been acquaintances from around 2014. 107. PW15 said that when ACB got the document, they went to follow up on the contract of MPS on food ration. He said the MPS just like any government entity was supposed to follow procurement procedures like raising of requisition by user department, plan on how procurement is to be done, budget for the plan, IPDC meeting and deliberation and the I? procurement. He said that depending on thresholds, some procurements have to go through vetting by the ACB, PPDA, Government Contracting Unit (GCU) and the SG, 108. PW15 told the court that McFarlen Jere (PW13) was interviewed by the ACB and he explained how he interacted with Sattar on the procurement and supply of 350, 000 ration packs in December 2020. He said at this time, the Accused person was the DG of ACB but was later posted to Ministry of Justice and Constitutional Affairs as SG. 109. PW15 then moved on to conversations which he said were there between the Accused and Sattar. He said the conversations started from 1 April 2021 where the two were exchanging audios, photos and text messages. One conversation that he highlighted was on 5" June 2021 and he said that at the time the two were conversing. The message was ‘bwana call when free, best wishes.’ He further said that on this day there were other events taking place in Mangochi one such event being a board meeting for the PPDA Board and one of the issues for consideration was the procurement of food ration from the Malawi Police Service. 110. PW15 said that on the same day, there was another conversation between Ashok and Sattar where Sattar was inquiring as to how much money Ashok had and Ashok said USD 112, 000. He also said Sattar forwarded the Accused’s phone number to Ashok with instruction Matemba 5K. PW15 referred to page 2 Vol 3 where Sattar sent Ashok phone number for Matemba (0888979590) in first message and then in 2™ message just wrote 5k. PW15 said that the investigating team understood this to mean 5, 000 USD because in the conversation of 7 June, Ashok updated Sattar that the balance was USD 107, 200 from USD112, 000. 111. He went further to say that the conversations show that Ashok later updated Sattar and said the Accused was in Mangochi and they would meet the next day. PW15 further said that on 8" June Sattar contacted the Accused saying he just wanted to ask if there was any update on the ration on no objection from the ACB. (Reference was made to page 8 vol 3 of the disclosures). PW15 said that outside this conversation, the ACB sent to PPDA a letter withholding the granting of no objection whilst raising issues that Malawi Police Service needed to address. Malawi Police Service responded to the issues raised and resubmitted its request for no objection to ACB for vetting again. 112. He further said that on 27" June 2021, Sattar enquired from the Accused about the ration. The Accused’s response was that he has made a follow up and that the team from the ACB was in Mangochi and that he will provide feedback later. He sent another message saying he (the accused) had talked to an officer at PPDA who indicated that she would get 18 back to the Accused. PW15 said that during investigations, they confirmed that indeed the officers were out of office to Mangochi. 113. PW15 went further to say that on 29" June 2021, the ACB wrote a letter to the PPDA granting no objection and PPDA wrote Malawi Police Service indicating that the contract had to be reviewed by the Solicitor General. On 14 J uly 2021, Sattar forwarded a message to Matemba which showed that documents were submitted to the Solicitor General but the reporter was not able to meet the solicitor general as he was out of office. Then later on the same day, the Accused sent to Sattar a photo of documents from Malawi Police Service and Sattar acknowledged with a thank you.’ He went further to say that on 15" July, 2021, the Accused shared a document from Ministry of Justice to the Malawi Police Service. This he said was a document relating to a contract for the delivery of dry ration food packs. PW15 went further to say that the documents were granting Malawi Police Service a go ahead with the contract as long as conditions in the letter were fulfilled. He also said that on the same day, the Accused wrote Sattar informing him that he had written Malawi Police Service and delivered the letter, 114. PW15 then moved to conversations between Sattar and Ashok where he said in a conversation of 23" January 2021, Sattar instructed Ashok to give the Accused 5K and Ashok asked for the Accused’s number which Sattar sent. The conversations were tendered in evidence and marked as follows; 1) Audios conversations between Sattar and the Accused as Exhibit PI7A 2) Text conversations between Sattar and the Accused as Exhibit 17B ; and 3) Text conversations between Sattar and Ashok as Exhibit P18. 115. PW15 said that after analysing the audios, the ACB arrested the Accused and recorded a statement under caution from him. Caution Statement was marked as Exhibit P19. 116. In cross examination, the Accused person asked PW15 as to what triggered the allegations against the accused. In his response PW15 said that allegations were triggered by allegations that Sattar and Ashok were bribing politically connected persons and public officers in order to get contracts. PW15 denied to have been investigating the accused on the allegation of US$10, 000 but acknowledged that money was part of the investigation. 117, PW15 said that the ACB was also following up on allegations that the accused was interfering with the work of the ACB. He however acknowledged that following up is not interfering. PW15 said that upon concluding investi gation, they established that the accused received US$10, 000. He however acknowledged that the charge of bribery was dropped by ACB in 2023, one year later. When he asked how does he feel that his preferred charges 19 were dropped by the prosecutors, PW15 said he cannot react in any way to the Prosecutors decision to drop the charge of bribery as the investigators do their work and the prosecution looks at the evidence and decide how to proceed. PW15 refused to concede that the dropping of the charge is a sign that he did not doa good job. 118., PW15 acknowledged that when interviewing a suspect, they show him the evidence that the State has against him and he said they showed the accused the evidence of receipt of US$10, 000 but when asked to show from the documents such evidence, he conceded that the Accused was not confronted with such evidence. 119. PW15 acknowledged that the evidence they got from NCA was the hard drive which contained the audios and text messages. He confirmed that none of the officers from ACB tampered with the audio and that the information presented in court is as received. 120. , The Accused took PW15 to task over the MOU between NCA and ACB. PW15 read provisions which indicated that information shared was merely intelligence and that the evidence was not to be used in court. PW15 said that ACB complied with the terms of the MOU. He also said that ACB conducted its own investigations. As part of investigations, PW15 said that they went to Airtel and TNM. He also said that investigators liaised with prosecutors to guide the investigations. 12], PWIS acknowledged that the secretariat is very crucial to give evidence in an offence of failure to declare interest. He also acknowledged that issues of declaration of interest are handled by the secretariat of PPDA. He however said he could not recall if they did ask the officers issue of declaration of interest but as to the role of the board members in the procurement of food ration. PW15 denied to have failed to bring the witnesses from PPDA who were interviewed because their evidence was unfavourable. 122. When asked about the declaration form, PW15 said it was not there. He said a board member declares interest where he has pecuniary interest. He said he understood pecuniary to mean something to do with finances. He said the accused had no pecuniary interest in the contract: He however said that he had evidence that the accused had financial interest being the money he got from Ashok. PW15 said that his evidence was that Sattar instructed Ashok to give the accused 5K. 123. PW15 acknowledged that from the conversations, it shows that the Accused could call Sattar brother or dearest showing that they were very close yet he had to go through someone else. PW15 also acknowledged that there were no conversations between Ashok and the Accused in court. He also conceded that there was no evidence showing that the accused received the money from Ashok. 20 124. The Accused referred PW15 to section 22 of the Public Finance Management Act and to the declaration of interest form. PW15 said the basis of declaration of interest is where one has direct or indirect interest. He said the accused had no pecuniary interest but financial interest because of the money he received. PW15 acknowledged that the form did not mention being a close associate as a basis for declaration of interest. When asked as to the meaning of close associate, PW15 said it is someone you work with, or someone you are friendly with in your dealings. PW15 acknowledged that the Solicitor General may be better placed to talk about legal issues than him. 125. When asked if the conclusion that the Accused and Sattar were close associates was not drawn from information obtained in the hard drive, PW1 said that the ACB conducted independent investigations and compared the information gathered with what was on the external hard drive. 126. PWI15 agreed that the PPDA board to which the accused was a member reviewed the Xavier contract on 5" June 2021. He however agreed that he did not have evidence that the Accused and Sattar discussed anything relating to the contract prior to 5" June 2021. PW15 while saying Sattar asked the Accused if he had any update from ACB, he said Sattar did not ask the Accused to interfere with ACB. He however conceded that the officers who dealt with the contract did not say that the Accused interfered with them. He also said that it was not necessary to call the officers who dealt with the contract vetting process at ACB as witnesses. 127. He also said he was not suggesting that the Accused should have declared interest retrospectively as Sattar only contacted him on the contract on 3" June, 3 days after the PPDA cleared the contract. 128. PW15 said that during interview with the Accused, the Accused responded that he addresses someone as Chief when the person addresses him as such. 129. When asked whether Ashok could be believed to have delivered US$5, 000 to the Accused when he is alleged to have taken K3, 000, 000 from the money he was told to give McFarlen Jere, PW15 said that the fact that a person has been unfaithful to one person does not mean he can be unfaithful to another person. 130. With respect to count 2, PW15 acknowledged that the Accused did not on his own move to vet the contract but was moved by the letter from the Malawi Police Service asking him to vet the contract. He acknowledged that according to PW2 there was need for police to procure ration but he said there were somethings happening behind the scenes. He said that instead of the procurement process to start from Malawi Police Service, it started with the 21 supplier. He also said that with respect to the letter of 21 June 2021, it was Sattar who dictated the contents to the then Inspector General George Kainja and Mwai Kaluba. He however conceded that he brought no evidence on the same. 131. PW15 acknowledged that vetting of a contract is one of the duties of the solicitor General. As to what was wrong with what the accused did in the vetting of the contract, he said that in the conversation of 15" July with Sattar, he said he deliberately put the date as 15" July when he had written the letter on 14" July. He however acknowledged that the Accused told him during interview that he wrote the date of 15" J uly because he knew the letter would be delivered on 15" July. When quizzed as to who was right between PW15, the IG and the Solicitor General in saying that the Accused did nothing wrong in vetting the contract, PW15 said that he would leave it to the court. 132. PWI15 acknowledged that when Accused received the letter from the Malawi Police Service to vet the contract, he was told that it was urgent as it was during the covid pandemic period. He also acknowledged that during interview, the accused explained why he appeared to be entertaining Sattar and at the same time not doing what Sattar was asking. PW15 acknowledged that Sattar was very influential and that he was dealing with powerful politicians. 133. In re-examination, when referred to section 21 of the PPDA, PW15 said that the accused was charged under the CPA. PW15 also said that when they got the audios and texts from NCA, they analysed the two and then conducted comprehensive investigations. He said they interviewed people from TNM, Airtel, Secretary to Treasury, PPDA officers, Malawi Police. He said they went on to the ground to find out about the food ration contract and found that there was a contract with Sattar’s company Xavier Limited , He also said they established that there was a PPDA board meeting in Mangochi on the day Sattar instructed Ashok to give Matemba 5K. 134. On things that were happening behind the scenes, PW15 said that what happened in this case does not reflect well on how procurement is supposed to be done. He said it was the supplier who approached Malawi Police Service telling them that your ration is low and also that there was communication between Sattar and the IG and the Legal Officer. PW15 said that the contract began with Sattar contacting McFarlen Jere and asking him to raise a requisition for food ration but McFarlen Jere refused saying he gets instructions from the IG. He went further to say that then the IG instructed Jere to raise the requisition for 210, 000 ration packs but later the number rose to 350, 000 packs, 22 135. On conversations between Sattar and the accused, PW15 said that when the matter is considered in the light of the issues, it is found that right from where Sattar asked about updates on the ration, the accused was able to give correct account of movement of ACB officers. The Law and Analysis Case to Answer 136. The starting point is section 313 of the Criminal Procedure and Evidence Code (the CP & EC) which provides as follows? (I) If, when the case for the prosecution is closed, and upon hearing any evidence which the High Court may decide to call at that stage of the trial under section 201, the High Court is of the opinion that no case is made out against the accused sufficiently to require him to make a defence, the High Court shall discharge the jury and record an acquittal. (2) If, when the case for the prosecution is closed, and any evidence called under section 201 has been taken, the High Court is of the opinion that a case is made out against the accused sufficiently to require him to make a defence, the High Court shall inform the accused that he has the right to remain silent or to give evidence on oath, and thereupon call him to enter his defence and give evidence. 137. The above cited provision shows that at the close of the prosecution case, this Court is bound to evaluate the evidence in order to determine whether or not a case has been made out sufficient enough to justify calling the accused person to enter his defence. If no such a case has been made out, the court is duty bound to find the Accused with no case to answer and accordingly acquit him of the offence(s) charged. 138. It is trite law that the burden of proving the guilt of the accused person lies with the state. The standard required at this stage however is different from that required at the end of the trial. The standard applicable at this stage is the standard of a prima facie case. In the case of Republic vy Mkandawire [2002-2003] MLR 379 (HC) the court had this to say on what amounts to a prima facie case: I have always understood a prima Jacie case to be one where the evidence before the tribunal is such that it makes him itch for an explanation from the accused before he can finally make up his mind on the case. The evidence before him must in other words be such that he could, as opposed to would, convict if he did not hear an explanation from the accused 139. Where a submission of no case to answer has been made as in the present case, it will be upheld when; 23 I. There has been no evidence to prove an essential element in the alleged offence; or 2. When the evidence adduced by the prosecutor has been so discredited as a result of cross examination or is manifestly unreliable that no reasonable tribunal could safely convict on it... (see R v. Dzaipa [1975-77] 8 MLR 307) Offences under Charge Offence of Failure to Disclose Interest under section 25D(2)(a) of the CPA 140. The two counts are both charged under section 25D(2)(a) of the CPA. For better understanding of the offence, the whole section 25D will be reproduced. (1) Where a contract or proposed contract in which a public officer or any member of his immediate family, or other close associate of his, has a direct or indirect interest is, to his knowledge, being, or is to be, considered— (a) at a meeting at which the public officer is or will be present; or (b) in any other circumstances relating to his duties as a public officer, such public officer shall, at the commencement of the meeting or at any time upon becoming so aware, declare to the meeting or to the appropriate authority or in the manner prescribed the nature of such interest and shall not take part in, or be in attendance during, the discussion or consideration of the contract or proposed contract or vote on any matter or do any other thing relating to the contract or proposed contract. (2) Any public officer who— (a) fails to make a declaration of interest as required by subsection (1); (6) in making a declaration of interest pursuant to subsection (1), makes a false declaration or a false statement; (c) otherwise contravenes subsection (1), shall be guilty of an offence. (3) It shall be a defence to a charge for an offence against subsection 2 (b) that the accused did not know or did not have reasonable ground to believe that the declaration or statement was false. (4) In this section— "interest" means interest in a private capacity; and “member of immediate family" in relation to a public officer, includes that public officer's spouse, child, parent, brother, sister, grandchild, grandparent, uncle, aunt and other close relative. 141. The section 25D(2)(a) of the CPA creates the offence of failure to declare interest. According to section 25D(1)(a) of the CPA the of the offence of failure to declare interest can be committed in one of two scenarios. The first scenario is that falling under subsection (1)(a) which relates to a meeting at which a contract or a proposed contract is being 24 considered and a concerned public officer attends that meeting. For ease of understanding, the following can be outlined as elements of the offence under subsection (1)(a); i. il. iil. iv. Vi. An accused person must be a public officer, There must be contract or proposed contract in which an accused person himself or any member of his immediate family or his close associate has a direct or indirect interest; The accused must be aware of that contract or proposed contract; There must be a meeting where the contract or proposed contract is being or is to be considered; An Accused Person must be present, or take part or vote or do anything relating to the contract at the said meeting; The Accused Person must have failed to declare or disclose his interest or that of any member of his immediate family or the interest of his close associate to the meeting at the commencement of the meeting or at any time upon becoming aware that the contract is being considered. 142. The second scenario is that falling under subsection (1)(b) which relates to any other circumstances relating duties of an accused person as a public officer. The second scenario does not require existence of a meeting. What is required is that the concerned public officer must be acting in relation to his duties as a public officer in relation to the contract or the proposed contract. In relation to the second scenario, the following elements must exist to establish the offence, i. ii. ill. iv. The accused person must be a public officer, There must be contract or proposed contract in which an accused person himself or any member of his immediate family or his close associate has a direct or indirect interest; The accused must be aware of that contract or proposed contract; The Accused must do something in relation to his duties as a public officer in relation to the contract to be considered; and The Accused Person must have failed to declare or disclose his interest or that of any member of his immediate family or the interest of his close associate to any authority or in a prescribed manner. 143. The first count falls under the first scenario whereas the second count falls under the second scenario. 25 The Offence of Failure to Declare Interest under Section 22 of the PPDA Act. 144. The Accused person in his submission made reference to and analysed the State’s evidence in the light of the offence as charged under section 22 of the PPDA Act. The said section 22 provides as follows; (1) Where any member of the Authority, a committee of the Authority, any employee of the Authority, any public official or member of an Internal Procurement and Disposal Committee has an \y direct or indirect pecuniary interest in relation to any matter before the Authority, any of its committees, or the procuring and disposing entity, he shall— (a) disclose at or before the meeting convened to discuss that matter, the nature of his interest: and (b) not take part in any deliberation or any decision-making process in relation to that matter. (2) A disclosure of interest made under this section shall be recorded in the minutes of the meeting of the Authority, or a committee as the case may be. a. A person who fails to disclose an interest as required under this section commits an offence and shall, upon conviction, be liable to a fine of K1,000,000 and to imprisonment for five years. 145. For the offence to be established, the following elements must be proved; i Accused must be a member of the Authority or a member of a committee of the authority or any employee of the authority or any public officer; i. The accused must have direct or indirect pecuniary interest in relation to a matter before the authority, or any committee or any procuring or disposing entity iii. There must be a meeting convened to discuss the matter in which the accused has a direct or indirect pecuniary interest iv. The accused must have failed to declare his interest at that meeting. 146. The two Statutes; the CPA and the PPDA Act provides for the same offence of failure to declare interest but there are a number of significant differences in the two provisions. These are as follows; (1) Section 25D of the CPA applies to public officers where as section 22 of the PPDA applies to other persons who whilst not being public officers may be members of the PPDA board or members of a committee of the board. (2) The CPA refers to direct or indirect (private) interest whereas the PPDA Act refers to direct or indirect pecuniary interest; 26 (3) Under the CPA interest subject of the charge is not limited to interest of the public officer. It includes interest of the public officer’s immediate family member or the public officers close associate whereas under the PPDA Acct, the interest is that of the public officer, (4) Under the PPDA Act, the issue of interest can only arise with respect to a meeting whereas under the CPA, interest in case of scenario two can arise | in any other circumstances other than during a meeting. 147. Under section 25D(2) of the CPA, the law does not specify the nature of the interest required to be disclosed. It simply refers to direct or indirect interest. Section 25D(4) the CPA only provides that interest means interest in private capacity without really defining the word interest. The State in its submissions referred to the United Nations Convention Against Corruption (UNCAC) on the understanding of the scope of interest under the CPA. Though, they did not specify what article was being referred to the quoted passage is from Article 8(5) of the UNCAC which provides as follows: Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials. 148. Article 8 provides for code of conduct for public officers and under (5), the UNCAC obliges State parties to establish measures requiring public officials to declare interests which may result in conflict of interest in relation to their public offices. State parties are also obliged under Article 7(4) of UNCAC to adopt, maintain and strengthen systems that promote transparency and prevent conflict of interest. The UNCAC however does not define conflict of interest. 149. The State referred to Article 57(1) and (2) of the Financial Regulations Applicable to the general Budget of the European Union (Regulation No. 966/2012) on definition of interest which is as follows: (1) Financial actors and other persons involved in budget implementation and management, including acts preparatory thereto, audit or control shall not take any action which may bring their own interests into conflict with those of the Union. 27 (2) For the purposes of paragraph I, a conflict of interests exists where the impartial and objective exercise of the functions of a financial actor or other person, as referred to in paragraph I, is compromised for reasons involving family, emotional life, political or national affinity, economic interest or any other shared interest with a recipient. 150. The quoted definition is not of general application. It is a definition that specifically applies to a financial actor. In the present case, we are dealing with a person who is not a financial actor and the matter in issue relates to public procurement. I found useful the definition of conflict of interest found in the Organisation for Economic Corporation and Development (OECD) guidelines for managing conflict of interest which are called “OECD Guidelines for Managing Conflict of Interest in the Public Service.’ The Guidelines define conflict of interest as follows; a “conflict of interest” involves a conflict between the public duty and private interests of a public official, in which the public official has private-capacity interests which could improperly influence the performance of their official duties and responsibilities. 151. The Guidelines go further to define private interests as follows; In this definition, ‘private interests' are not limited to financial or pecuniary interests, or those interests which generate a direct personal benefit to the public official. A conflict of interest may involve otherwise legitimate private- capacity activity, personal affiliations and associations, and family interests, if those interests could reasonably be considered likely to influence improperly the official's performance of their duties. 152. This Court has considered other statutes which makes provision for the requirement of disclosure of interest by board members, directors etc. What comes clear is that the statutes make specific reference to direct or indirect pecuniary interests. Below are some of the provisions. Section 14 of the Malawi Bureau of Standards Act: Pecuniary Interest of members (1) If a member, or his spouse or any company which he or she is a director or major shareholder, or any partner of such member or his spouse, has or acquires any pecuniary interest, directly or indirectly, in any matter in which his private interest conflicts with his duties as a member and which is a subject of consideration by the Board, he shall, as soon as he becomes aware of such interest in such matter, disclose the facts relating thereto to the Board. (2) A member referred to in subsection (1) shall excuse himself from such a meeting and shall not in any way take part in the consideration of any question before the Board. 28 (3) For the purposes of this section, the term “major shareholder” means any person who at the relevant time, in his own right or by right of any other person, has the power to exercise or control not less than ten per centum of the voting rights in the relevant company, whether by reason of shareholdings, debenture holdings or proxy or otherwise. Section 19 of the Export Promotion Council Act: Members to Declare Pecuniary Interest (1) If a member of the Council or his spouse, or any company of which he or she is a director or major shareholder, or any partner of such member or of his spouse, has or acquires any pecuniary interest, direct or indirect, in an 1y matter in which his private interests conflict with his duties as a member and which is the subject of consideration by the Council he shall, as soon as is practicable after becoming aware of such interest in such matter, disclose the facts relating thereto to the Chairman and to the Minister. (2) A member referred to in subsection (1) shall not take part in the consideration of, or vote on, any question before the Council which relates to the matter referred to in that subsection, without the written permission of the Chairman and the Minister. (3) For the purposes of this section, the expression “major shareholder” means any person who, at the relevant time, in his own right or by right of any other person, has the power to exercise or control not less than ten per centum of the voting rights in the relevant company, whether by reason of shareholdings, debenture holdings, proxy or otherwise 153. Unlike the other three statutes, which specify the nature of interest limiting it to direct or indirect pecuniary interest, section 25D(1) of the CPA does not restrict the nature of interest to pecuniary interest. The CPA simply refers to direct or indirect interest which in accordance with section 25D(4) is interest in a private capacity. This in my view means that the intention was to broaden the nature of interest that is targeted that goes beyond pecuniary interest. If one considers the definition of conflict of interest under the OECD Guidelines for Managing Conflict of Interest in the Public Service, it will be noted that the idea is the avoidance of improper influence in the performance of official functions and responsibilities. Influence may not only result from financial interests or from direct personal benefit to a public officer. As noted from the definition of private interest from the OECD Guidelines for Managing Conflict of Interest in the Public Service, private interest is not limited to pecuniary or financial interests which generate direct personal benefit to a public officer but also personal affiliations and associations and family interests which could reasonably be considered likely to influence improperly the official’s performance of their duties. 29 154. Other issues arising from the submissions of the Accused relate to questions of whose interest must be declared and the mode of declaring such interest. Under the PPDA Act, the pecuniary interest being refereed to is that of the public officer (the accused person) himself. His interest whether direct or indirect has to be pecuniary in nature. The nature of interest required to be disclosed under the CPA however is broader in terms of its nature as well as its subjects. As already noted earlier on, the interest is not limited to pecuniary but it is direct or indirect private interest. 155. In addition, under the CPA, even where the public officer does not have direct or indirect interest, breach of the provision can also occur if he does not declare interest of his immediate family or close associate. Immediate family member is defined to include a spouse, child, parent, brother, sister, grandchild, grandparent, uncle, aunt and other close relative. The Accused person and the owner of Xavier Limited, Sattar do not fall into that category. From the allegations and the evidence, the State suggests that the applicable relationship is that of a close associate. Close associate however has not been defined in the CPA. The Accused has made reference to the Financial Services Act, the Financial Crimes Act and the Public Procurement and Disposal of Assets Act on the definition of close associate. 156. The Financial Crimes Act defines close associate as follows; “close associate” includes a controlling party, beneficial owner, a subsidiary of the legal person or arrangement and in relation to an individual includes a close relation of the individual or a partner or a close relation of the partner, of the individual and includes a beneficial owner; 157. The Financial Services Act does not define the word close associate but defines the words ‘associate’ and ‘close relation.’ “Associate” is defined in section 2 as follows, in relation to a body corporate, means a controlling party, a subsidiary or a related body corporate of the body corporate; and (a) in relation to an individual, means — (i) a close relation of the individual; or (ii) a partner, or a close relation of a partner, of the individual. The Financial Services Act has further defined the term “close relation” to mean spouse, brother, sister, parent, child, child of the spouse and the spouse of any of these relations. 158. The Public Procurement and Disposal of Assets Act has not defined a close associate but in section 2, it defines "close relative" to mean a spouse, child, sibling or parent or guardian. Added to these definitions is the definition of a close associate in the Public 30 Officers (Declaration of Assets, Liabilities and Business Interests) Act which defines close associate as to mean ‘any person, whether related or unrelated by blood or marriage, who holds or will hold any financial interest, or any power, for or on behalf of a public officer.’ 159. The Accused seems to have adopted the definition in the Financial Services Act and on the basis of the understanding of the word close associate as understood under the Financial Services Act the Accused submitted that the Prosecution failed to prove that the Accused person was a close associate of Sattar or that the Accused person was or is a beneficial owner. The State on the other hand argued that a definition of a term in one statute cannot be relied upon to interpret a similar word in another statute unless the statute being interpreted clearly states that the definition from another statute shall apply. 160. On its part, the State relied on the definition of the word close associate as defined in Cambridge dictionary and lawincider.com dictionary. The latter defined close associate as someone with whom you are in close regular contact over a period of time who is more than an acquaintance. It may be a friend, a colleague, a business associate or someone you know through general social contacts. It is someone a reasonable member of the public would think you might be prepared to Javour/disadvantage (“close association” shall be construed accordingly). 161. Cambridge dictionary on the other hand defines close associate to mean someone who is closely connected to another person as a companion, a friend or a business partner. With these definitions in mind, the State argued that a close associate will differ according to the set of facts and that in relation to corrupt practices, the term should be given its ordinary meaning to include someone closely connected by virtue of different circumstances such as {riendship that is more than an acquaintance. 162. The basis for arguing that the definitions in other statutes should not be relied upon because the CPA does not provide for application of definitions from other Statutes appears to be faulty in my view. In appropriate cases, in interpreting terms, the court does refer to meanings of similar terms from other statutes. For instance, many of the laws that make provision for the offence of illegal possession of certain things like wildlife products, forestry produce, medicinal drugs, dangerous drugs etc, do not define the word possession. Courts in interpretating the term possession, have relied on the definition of the term as found in section 4 of the Penal Code (see Charie v R (Criminal Appeal 98 of 2017) [2018] MWHC 931 (14 March 2018). 163. It is also interesting to note that whereas the State argues that a definition in another Statute must not be relied upon, the State in its submissions on the scope of interest under the CPA relied on the definition of conflict of interests in European legal instruments 31 including the Financial Regulation Applicable to the General Budget of the European Union and Arrive Guidelines. 164. The Financial Services Act only defines associate and not close associate and in relation to an individual, the term is associated with a close relation. A close relation is defined as spouse, brother, sister, parent, child, child of spouse and spouse of any of these relations. The PPDA Act similarly defines close relation with addition of guardians. The Financial Crimes Act definition also includes a close relation, a partner or close relation of the partner or individual or a beneficial owner. Common in these definitions is the term close relation which is defined to include spouse, child, brother, sister, parent or spouse of these close relations. 165. Section 25D(1) of the CPA refers to ‘interest of the public officer, or any member of his immediate family, or other close associate of his.’ Immediate family member has been defined under the section 25D(4) of the CPA to include public officer's spouse, child, parent, brother, sister, grandchild, grandparent, uncle, aunt and other close relative. The persons listed under the definition of immediate family member are almost the same persons listed under the definition of close associate. Ordinarily one would conclude that the terms mean the same thing. This however cannot be so considering that unlike the other statutes, the CPA refers to interests of both the immediate family member and the close associate which in my view means that the terms close associate and immediate family member carry different meanings. This is the reason why, the definitions referred to by the Accused would not be helpful to our understanding of the word close associate. 166. This would take us to the consideration of the ordinary dictionary meaning of the term which is to mean someone with whom you are in close regular contact over a period of time who is more than an acquaintance whom a reasonable member of the public might think you were prepared to favour or disadvantage when discussing a matter that affects them. This definition resonates with the idea of conflict of interest which the law in requiring the declaration of interests seeks to avoid. This court will therefore adopt the dictionary definition of close associate. The question to be answered therefore is whether on the evidence, it has been proved that the Accused was a close associate of Sattar in the sense of being in close regular contact over a period of time. 167. The other issue raised by the Accused was the mode of declaration of interest. It has been argued by the Accused that under the PPDA Act, the law specifies the mode of declaration of interest and that is being at a meeting. The Accused in cross examination of State witnesses, identified declaration forms under the PPDA which board of directors of 32 the PPDA Board use for declaration of interest, According to the declaration form, a member declares whether; i. he has pecuniary interest in the matters to be discussed ii. He has any financial interest in any transactions which the PPDA is engaged in, in regulating procurement lil. He is negotiating or having an arrangement concerning prospective employment with any of the bidders or any disposing entity which are regulated by the PPDA 168. IDD20, a declaration form which the Accused identified suggests that the Accused person declared his interest at the board meeting of 5" June 2021 at Makokola Retreat and in his declaration, he indicated that he had none of the listed interests. 169. The Accused further argued that the State failed to prove that he had pecuniary interest in the food ration contract or that he had any financial interest in any transaction which the PPDA was engaged in or that he was negotiating or had any arrangement concerning prospective employment. His argument in essence was that he was being accused of failure to declare interest when he had complied with the requirements of the law in section 22 of the PPDA Act. It was the Accused’s argument that the State failed to appreciate that for failure to declare interest, there is a prescribed mode of declaring interest at a meeting and that the Accused acted in line with the requirements of the declaration form under section 22 of the PPDA Act and that that form does not require ‘close associate as a basis or a ground for declaration of interest. The Accused therefore argued that the State had failed to prove an essential element of the offence being failure to declare interest. 170. The State on its part argued that the prescribed manner of declaring interest addresses the procedural aspects of the declaration and that even if one’s specific interest is not explicitly included in the declaration form, a person who has interest must still ensure that the nature of their interest is declared. The State argued that it would not have been the intention of Parliament to limit the nature of interest to be declared by the mode of declaration when other interests in corrupt transactions would affect decision making. The State further argued that a form under an Act cannot override specific statutory provisions. It was the State’s argument that decision makers must adhere to other laws including the Constitution, the CPA and Public Finance Management and not just to limit themselves to the PPDA Act. 171. The form that the Accused person relied on is the one under the PPDA Act which a member is supposed to fill at a meeting in declaring his or her interest. The Form is made under the PPDA Act and its Regulations. As rightly argued by the State, a form under the 33 Regulations cannot override specific statutory provisions. However, it is to be observed that the form submitted by the Accused in IDD20 does not override specific provisions of the law. Section 22 of the PPDA Acct, talks about declaration of pecuniary interest. The Form talks about pecuniary interest in a contract and even goes further to make reference to financial interest in any transaction or negotiation or an arrangement concerning prospective employment with any of the bidders. The form is not limiting but expanding on the provisions of the PPDA Act. The limiting aspect is arising from the fact that the nature of interests listed in the form do not cover all the interests prescribed under the CPA. 172. What is coming out of the Accused’s arguments, is that the Accused person on his part heavily relied on section 22 of the PPDA Act when the charges were made under the CPA. The Accused argued that the PPDA Act makes specific reference to pecuniary interest arguing that the nature of interest which he was obliged to declare is direct or indirect pecuniary interest. According to the Accused, it is the PPDA Act which governs procurement in Malawi and that PW4 and PW5 board members of the PPDA Board and PW13 who is the Solicitor General and ex-officio member of the PPDA Board all indicated that the law governing declaration of conflict of interest by board members is the PPDA Act. 173. The PPDA Act is an ‘Act to provide for the establishment of the Public Procurement and Disposal of Assets Authority; to provide for its functions and powers, to maximize economy and efficiency in public procurement and disposal of public assets; to provide for, and regulate, a decentralized institutional structure for the public procurement and disposal of public assets; and to provide for matters connected with or incidental thereto.’ It is provided under section 3(1) of the PPDA Act that the Act applies to all procurement involving public funds and disposal of public assets. It is agreed that the PPDA Act governs public procurement in Malawi. 174. It will have to be considered that section 22 of the PPDA does not apply to public officers only but is also applicable to other persons who though not being public officers, are members of the PPDA Board or members of a committee of the Authority. Such members may include a member of the Malawi Law Society, a member of the Institute of Chartered Accountants or a member of the Institute of Engineers among others. 175. The charges levelled against the Accused, however, were made under the CPA. The title of the CPA whose purpose is stipulated in the title as follows; 34 An Act to provide for the establishment of an Anti-Corruption Bureau; to make comprehensive provision for the prevention of corruption; and to provide for matters connected with or incidental to the foregoing which is the law. 176. The CPA makes comprehensive provision for prevention of corruption including corruption in the area of procurement as can be seen from section 25D which deals with conduct of public officers in relation to consideration of contracts or proposed contract in which they are part of the decision making process. Such contracts or proposed contracts may, as was the case in the present case involve procurement of goods and services. The submission by the Accused however raises the question as which is the appropriate law to charge an Accused with where like in the present case, a conduct is criminalised under two different statutes? 177. Section 53 of the General interpretation Act offers some guidance on the issue. The section provides as follows; Where an act or omission constitutes an offence under two or more written laws, the offender shall, unless a contrary intention appears, be liable to be prosecuted and punished under any of such laws but shall not be liable to be punished twice for the same offence. . 178. It is this court’s understanding of the above provision that a prosecuting authority has discretion to choose under which law to charge an accused person with where an offence is created under two different Statutes unless contrary intention appears The choice of the CPA over the PPDA Act by the Prosecution in the present case, seems to be supported by the above section 53 of the General Intepretation Act. It is also in my view supported by section 3 of the CPA which provides that the provisions of the CPA shall apply notwithstanding anything to the contrary contained in the Criminal Procedure and Evidence Code or in any other written law. This, in this court’s view, puts the CPA over other Acts. No similar provision exist in the PPDA Act which would limit the law under which an offence of failure to declare interest in procurement processes would be charged under. 179. Whereas the PPDA Act makes provision for public procurement, the CPA makes provision for prevention of corruption which includes corruption in public procurement and the proceedings before the court relate to corrupt dealings in public procurement. In view of the foregoing, there is nothing wrong with the charges against the accused having been made under the CPA considering that the Accused person was not an ordinary member of the PPDA Board but also a public officer who was not only governed by the PPDA Act but also the CPA. a5 180. Since the PPDA Acct limits the interest to that of the public officer without reference to his immediate family or close associate as is the case with the CPA the question arises, as to which law, the Accused ought to have complied with as he sat at the board meeting of 5‘ June 2021. Compliance with the PPDA Act would not be a problem but the problem comes in when he is required to declare interest outside the requirements of the PPDA Act. 181. This Court’s view is that the Accused ought to have complied with both the requirements of the PPDA and the CPA as being a public officer, he was obliged to comply with both laws. He could not be expected to choose which one to comply with only one Statute and not the other. 182. The offences under the charge having been made under the CPA, it would be wrong in this Court’s view to assess the Prosecution’s evidence on the basis of the PPDA Act. The Prosecution’s evidence has to be tested in the light of the offence of failure to declare interest as provided for under the CPA and not under the PPDA Act so that the test is whether the Prosecution proved to the required standard of a prima facie case the offences of failure to declare interest as alleged in the charge sheet. 183. For the second count, it will be noted that it is the same offence of failure to declare interest only that it differs from the first count in that it does not require element of a méeting. According to section 25D(1)(b) of the CPA, the need for declaration of interest arises in any other circumstances other than that of a meeting in which an Accused person exercising his public duties does something in relation to a contract or proposed contract in which he himself or his close associate or his immediate family have an interest. This court does not agree with the Accused that the State did not disclose in the chargesheet in what circumstances, the Accused failed to declare interest. The particulars of the charge alleged that the Accused vetted the contract in issue. The vetting is the circumstance in which the Accused was exercising his duties as a public officer in that as a Solicitor General, he had a duty to vet public contracts like the present on behalf of the Ministry of Justice. 184. If anything, perhaps what is lacking from the charge sheet is as to what appropriate authority the Accused ought to have declared his interest or that of his immediate family or close associate to; or in what prescribed manner, he should have declared such interest. Use of Intelligence Material as Evidence 185. There is evidence on record that there was cooperation between the ACB in Malawi and the NCA in the UK. PW6 indicated that the NCA received information from various sources that Sattar was involved in bribery of foreign officials and through cooperation with ACB, they shared information which they deemed relevant. The information was 36 shared under an MOU. PW7 identified the information shared which included extracts of WhatsApp messages and audios. The information was contained in printouts and in a hard drive. The hard drive was tendered in evidence by PW8 as Exhibit P12. The WhatsApp printouts and audios were tendered in evidence as follows; Exhibit P17A audios between Sattar and the Accused; Exhibit P17B texts between Sattar and the Accused and Exhibit P18 texts between Sattar and Ashok. These were tendered by PW15. 186. The Accused person argued that the cooperation between NCA and the ACB was under an MOU which provided that information shared was for intelligence only and not for evidential purpose in any criminal proceedings. In support of the argument, the Accused person referred the court to paragraphs 3 (a), (b), and (d) of the MOU. The MOU provides as follows: (a) “The NCA and ACB must adhere to the laws of their respective jurisdictions, specifically in relation to the gathering of evidence, dissemination of information and especially in relation to the Human Rights of any detained persons, which is enshrined in domestic legislation and international treaties that affect both Malawi and the UK).” (b) “The NCA and ACB will share information on an intelligence only basis, sometimes known as a police to police basis, in order to expedite this complex , investigation. ’ (d) “This information will not be used for evidential purposes in any criminal or civil proceedings. However, both Participants will assist in servicing any international Letters of Request that may arise from this investigation.” 187. The Accused person argued that the gathering and obtaining of this type of evidence in Malawi is governed by the Mutual Assistance in Criminal Matters Act especially in section 6. It was argued that according to the section, evidence must be obtained through the appropriate authority being the Attorney General and that the same was not done in the present case. The Accused further argued that the ACB violated the MOU which prohibited the use for evidential purposes information shared under the MOU and the Mutual Assistance in Criminal Matters Act. It was argued that by violating the law and the MOU, the evidence became illegally obtained evidence. As to the consequences of such evidence, the Accused relied on the case of Misozi Chanthunya v. The Republic Malawi Supreme Court of Appeal Criminal Appeal Case No. 1 of 2021 arguing that where the court is confronted with illegally obtained evidence, the way forward is to disregard such evidence and proceed to decide the case on the remainder of the evidence. 37 188. Oniits part, the State approached the issue by firstly defining evidence. The State relied on the definition of evidence in the CP & EC which is as follows: “evidence” means information of any description which facts tend to be proved, and includes— (a) oral evidence, that is to say all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry; and (b) documentary evidence, that is to say all documents produced for the inspection of the court, 189. The State argued that the information was not just intelligence but evidence and that even if it was received as intelligence, ACB did not just use the information as it was but investigated the matter and found that what was discussed in the conversations in the WhatsApp messages and audios was true. 190. On the issue of illegally obtained evidence and reference to section 6 of the Mutual Assistance in Criminal Matters Act, the State argued that the argument is made in bad faith as the issue was already resolved by the court in its ruling of 24" October 2023. The State argued on the authority of section 5 of the Mutual Assistance in Criminal Matters Act and cases of State (On application of Kezzie Msukwa) and Ashok Nair v Director of The Anti- Corruption Bureau (Judicial Review 54 of 2021) [2022] MWHC 63 and George Kainja vy. Director of Anti-Corruption Bureau and 2 Others, Judicial Review Cause No. 48 of 2022, (HC, Civil Division, LL) that evidence obtained by informal means is allowed under the law and that such evidence is not illegally obtained evidence. 191. The State further argued that two dimensions were not argued when this court delivered its ruling of 23" October 2023. These are non-compliance with the MOU and the implications of the case of Misozi Chanthunya y. The Republic Case that evidence means information of any description which facts tend to be proved. 192. On the first dimension, the State argued that it is strange that the Accused is complaining about breach of the MOU between the NCA and the ACB when neither party to the agreement -the ACB nor the NCA has raised any such complaint. The State argued that in fact NCA was cooperative and provided testimony regarding how the evidence was obtained and that the evidence presented fit squarely within what constitutes admissible evidence under the CP & EC. 193. On the Chanthunya Case, the State argued that the case is distinguishable from the matter at hand in that case both parties and the court agreed that there were instances of illegally obtained evidence and the issue was whether the illegality could be cured under 38 section 3 of the CP & EC. The State argued that in the present case in view of section 5 of the Mutual Assistance in Criminal Matters Act, there is no illegally obtained evidence. 194. The arguments by the Accused raise two issues; firstly whether the evidence of WhatsApp text and audio conversations are illegally obtained evidence and secondly whether the State can rely on such evidence when the MOU under which the evidence was obtained clearly provided that the information was shared for intelligence purposes only and not meant to be used for evidential purposes in criminal proceedings. 195. This is not the first time that the Accused has raised the issue of section 6 of the Mutual Assistance in Criminal Matters Act. On 23" October 2023 when the State was ready to parade its 6"" and 7"" Witnesses who happened to be officers from the NCA in London, the Accused person raised an issue seeking court’s directions on whether or not sections 6 and 9 of the Mutual Assistance in Criminal Matters Act were complied with. The Accused’s argument was that the State had produced no evidence showing that it had complied with the two provisions. The Court’s view was that in essence, the Accused’s argument was that the witnesses could not testify on the basis of informal corporation only without formal procedures in the light of sections 6 and 9 of the Mutual Assistance in Criminal Matters Act. In its ruling of 24" October 2023, the Court expressed its opinion on the import of the two sections and came to the conclusion that in view of section 5(1) of the Mutual Assistance in Criminal Matters Act, the ACB could corporate with the NCA informally and obtain information or evidence and secure attendance of witnesses without getting through the Attorney General as the Appropriate Authority. The court ruled that the two witnesses could testify and that their evidence would be subjected to applicable rules of evidence. The evidence of the two witnesses therefore cannot be said to be illegally obtained evidence. 196. The two witnesses from NCA, explained what transpired and how they came about evidence on the hard drive which was shared with the ACB. They explained the processes that were followed in the UK including court processes which authorised the intrusion upon the office premises, house and phones. The WhatsApp audios and texts are a product of such processes. Apart from the argument that section 6 of the Mutual Assistance in Criminal Matters Act was not complied with, there is no other law which is said to have been violated to render the evidence obtained illegal. As for section 6 of the Mutual Assistance in Criminal Matters Act, in the light of section 5(1), non-compliance with section 6 cannot render evidence obtained in the manner that happened in the present case illegal. 39 197. The other aspect of illegality is raised from the angle of breach of the MOU between NCA and ACB. According to the Accused, there was blatant violation of the MOU as contrary to the agreement which was to the effect that what was shared was only intelligence and not evidence, that shared information was not to be used in any criminal proceedings and that the two parties were to adhere to laws of their respective jurisdictions with regard to gathering of evidence and dissemination of information. 198. Itis very correct that the parties by their agreement, agreed that information shared was for purposes of intelligence to assist in expediting investigations and not to be used in criminal proceedings. Whilst aware of such an agreement, NCA officials agreed with ACB to come to Malawi and make evidential statements explaining what they did regarding the information shared. Further to that, the officials agreed to also come to this court to testify and indeed testified regarding the processes that took place in the UK that led to the production of the hard drive. There is no suggestion that NCA officials were forced by the ACB to submit witness statements and more so to come to court to testify. NCA officials themselves did not resist the use of the information they shared in these proceedings. The Court’s conclusion is that the parties waived the terms of their engagement otherwise, if NCA had issues with the use of the information in criminal proceedings as the present, they would not have proceeded to cooperate with ACB to provide their statements and to come to court and testify. No illegality arises in the circumstances. 199. In addition, if there was any violation of the agreement, the parties to the agreement are the ones to raise any such violation under the doctrine of privity of contract and not the Accused person who was not a party to any such contract. If the parties take no issues, a third party cannot complain on their behalf. From the record, the parties seemed to have had no issue with the arrangement such that NCA officials were willing to travel to Malawi, give their witness statements and even appeared in court to give their evidence in relation to information which they provided under the MOU. Besides, violation of an agreement cannot without more amount to illegality. In the absence of illegality in the manner in which the evidence was obtained, the consequences of illegally obtained evidence espoused in the case of Misozi Chanthunya y. The Republic Malawi Supreme Court of Appeal Criminal Appeal Case No. 1 of 2021 do not arise. Findings 200. The issue that remains is whether on the evidence and the law, the State has established a case sufficient enough to justify calling the Accused Person in respect of the two counts. The Court has considered the evidence of all the witnesses in the light of the elements of 40 the two offences charged as outlined in the foregoing discussions. The court’s conclusion is that in respect of the first count, there is sufficient evidence to justify calling the accused to enter his defence. 201. Inrespect of the second count, the court finds the evidence in sufficient in that the count lacked sufficient particulars. From the charge sheet, one cannot tell which is the appropriate authority to which the Accused should have made his declaration of interest. Even from the evidence, the witnesses did not come out clear on which authority the Accused ought to have declared his interest to. As already observed, the charge sheet does not disclose the prescribed manner in which the interest should have been declared and even in the evidence, the witnesses also did not come clear on the prescribed manner in which the Accused should have declared such interest. 202. The CPA has regulations on declaration of interest made under section 54 of the CPA. These regulations are called Corrupt Practices (Disclosure by Public Officers of Interest in Contracts and Proposed Contracts) Regulations. The Regulations however are not comprehensive and make no provision as to the prescribed mode of declaration of interest whether at a meeting or in any other circumstances. For clarity, it would be important if the approach under the PPDA Act would be adopted to provide for the prescribed manner for declaration of interest under the declarations. 203. In view of the finding of a case to answer in respect of the first count, the accused is invited to enter his defence. He has a number of options in defence; 1) To testify 2) To call witnesses 3) To testify and call witnesses 4) To remain silent Pronounced in Open Court this 4" Day of March, 2025 at Lilongwe. [Ve buf ao V. Palikena-Chipao JUDGE 41