CHAPTER 7:04
CORRUPT PRACTICES

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Application

   3.   Interpretation

PART II
THE ANTI-CORRUPTION BUREAU

   4.   Establishment and composition of the Bureau

   5.   Appointment of Director

   5A.   Civil suits by or against the Director

   5B.   Legal representation

   6.   Qualifications and tenure of office of Director

   7.   Appointment of Deputy Director

   8.   Acting Director

   9.   Appointment of other officers of the Bureau

PART III
FUNCTIONS AND POWERS OF THE BUREAU

   10.   Functions of the Bureau

   11.   Powers of the Bureau

   12.   Special powers of investigation

   12A.   Further powers of the Director to obtain information

   12B.   Bail where suspect or accused is about to leave Malawi

   13.   Obstructing of officers of the Bureau

   14.   False reports of information to the Bureau

   15.   Powers of arrest

   16.   Identity cards

   17.   Impersonation, etc., of officers of the Bureau

   18.   Standing orders

   19.   Accounts

   20.   Audit

   21.   Annual reports

   22.   Immunity of officers of the Bureau

   23.   Restriction on disposal of property, etc.

   23A.   Seizure of property, etc.

PART IV
OFFENCES

   24.   Corrupt practices by or with public officers

   25.   Corrupt use of official powers and procuring corrupt use of official powers

   25A.   Public officers performing functions corruptly

   25B.   Misuse of public office

   25C.   Dealing in contracts

   25D.   Disclosure of interest by public officers

   26.   Corrupt transactions by or with private bodies

   27.   Corrupt transactions by or with agents

   28.   Corruption of members of public bodies in regard to meetings, etc.

   29.   Advantage for giving assistance, etc., in regard to contracts

   30.   Advantage for procuring withdrawal of tenders

   31.   Advantage in regard to bidding at auction sales

   32.   Possession of unexplained property

   33.   Certain matters not to constitute defence

   34.   Penalty

   35.   Attempts, conspiracies, etc.

   36.   Duty of public officers to make reports, etc.

   36A.   Tracing of property

   36B.   Value of property

PART V
ADDITIONAL PENALTIES AND RECOVERY OF CORRUPT ADVANTAGE

   37.   Penalty additional to other punishment

   38.   Recovery of advantage by distress, etc.

   39.   Principal may recover advantage corruptly received by agent

   40.   Effect of conviction of an offence under Part IV

   41.   Certificate of Government valuation officer or other specialist valuer

PART VI
POWERS OF THE DIRECTOR OF PUBLIC PROSECUTIONS

   42.   Consent of the Director of Public Prosecutions

   43.   Power of the Director of Public Prosecutions to obtain information [Repealed by Act No. 17 of 2004]

   44.   Bail where suspect or accused is about to leave Malawi [Repealed by Act No. 17 of 2004]

PART VII
EVIDENCE AND PRESUMPTIONS

   45.   Presumptions of corrupt intention

   46.   Evidence of custom

PART VIII
MISCELLANEOUS PROVISIONS

   47.   Absence of power, authority or opportunity no defence

   48.   Corrupt practice coming to the notice of a commission

   49.   False, frivolous or groundless complaints or allegations

   49A.   Non-compliance with Bureau’s orders, directions, etc.

   49B.   Unauthorized disclosure by employees, etc., of the Bureau

   50.   Alternative convictions and amending particulars

   51.   Legal practitioners and privileged information

   51A.   Protection of whistle-blowers and other informers

   52.   Defences

   53.   Liability of citizens of Malawi for offences committed outside Malawi

   54.   Regulations

18 of 1995
17 of 2004
G.N. 10/1996

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

[15TH FEBRUARY 1996]

PART I
PRELIMINARY

1.   Short title

    This Act may be cited as the Corrupt Practices Act.

2.   Application

   (1) Save as otherwise provided, the provisions of this Act shall apply notwithstanding anything to the contrary contained in the Criminal Procedure and Evidence Code or in any other written law.

   (2) Subject to subsection (1), all offences under this Act shall be inquired into, tried and otherwise dealt with in accordance with the provisions of the Criminal Procedure and Evidence code.

3.   Interpretation

   In this Act, unless the context otherwise requires—

   “advantage” means any benefit, service, enjoyment or gratification, whether direct or indirect, and includes a payment, whether in cash or in kind, or any rebate, deduction, concession or loan, and any condition or circumstance that puts one person or class of persons in a favourable position over another;

   “agent” means any person who acts for or on behalf, or in the name, of a public body or a private body or any other person, and includes a trustee, an administrator, an executor and an employee;

   “bank” has the meaning ascribed thereto in the Banking Act, and includes a financial institution;

   “Bureau” means the Anti-Corruption Bureau established under section 4;

   “corruptly” means the doing of, or the engaging in, any corrupt practice;

   “corrupt practice” means—

   (a)   the offering, giving, receiving, obtaining or soliciting of any advantage to influence the action of any public officer or any official or any other person in the discharge of the duties of that public officer, official or other person;

   (b)   influence peddling;

   (c)   the extortion of any advantage;

   “Director” means the person appointed under section 5 to be the Director of the Bureau;

   “Deputy Director” means the person appointed under section 7 to be the Deputy Director of the Bureau;

   “entertainment” means the provision of food or drink for consumption on the occasion when it is provided and any other entertainment connected with, or provided at the same time as, such food or drink;

   “extortion”, in relation to corrupt practice, includes—

   (a)   the demanding or receiving by a person in office of a fee or other payment for services, work, supplies or other thing which should be performed, done, delivered, offered, provided or given gratuitously; or

   (b)   where compensation is permissible, the demanding or receiving of a fee or other payment larger than is justified or which is not due;

   “financial institution” has the meaning ascribed thereto in the Banking Act;

   “Government” includes any Ministry, Department, service or undertaking of the Government;

   “influence” means any influence, whether or not the use of it leads to the intended result;

   “pecuniary resources or property”, when used to denote the proceeds of crime or any thing obtained from or connected with, or suspected to have been obtained from or to be connected with, the commission of an offence under this Act, includes pecuniary resources or property of whatever description into which any pecuniary resources or property derived or realized from the commission of the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains derived or realized from such pecuniary resources or property at any time since the commission of the offence;

   “principal” includes an employer, a beneficiary under a trust, and a trust estate as though it were a person, and any person beneficially interested in the estate of a deceased person as though the estate were a person;

   “private body” means any person or organization not being a public body, and includes a voluntary organization, chari- table institution, company, partnership and a club;

   “Public Appointments Committee” means the Public Appointments Committee of the National Assembly established under section 56 (7) of the Constitution;

   “public body” means the Government, a statutory body or any other body appointed by the Government;

   “public officer” means any person who is a member of, or holds office in, or is employed in the service of, a public body, whether such membership, office or employment is permanent or temporary, whole or part-time, paid or unpaid, and includes the President, a Vice-President, a Minister and a member of Parliament;

   “senior police officer” means any police officer of or above the rank of Inspector;

   “statutory body” has the meaning ascribed thereto in the Public Audit Act and includes the Reserve Bank of Malawi and any company, association, body, board or institution in which a statutory body has a financial interest.

PART II
THE ANTI-CORRUPTION BUREAU

4.   Establishment and composition of the Bureau

   (1) There is hereby established a body to be known as the Anti-Corruption Bureau which shall consist of the Director, the Deputy Director and such other officers of the Bureau, as may be appointed under section 9.

   (2) The Bureau shall be a Government Department and the finances of the Bureau shall be charged to the Consolidated Fund.

   (3) The Bureau shall exercise its functions and powers independent of the direction or interference of any other person or authority.

   (4) The Director shall submit reports to the President and to the Minister regarding the general conduct of the affairs of the Bureau.

5.   Appointment of Director

   (1) The President shall, on such terms and conditions as he thinks fit, appoint the Director, and the appointment of any person as Director shall be subject to confirmation by the Public Appointments Committee.

   (2) The Director and other officers of the Bureau shall not, while holding such office, discharge the duties of any other office of emolument in the Republic.

5A.   Civil suits by or against the Director

   Any civil suit arising from the exercise of the functions, duties and powers of the Bureau or the Director shall be instituted by or against the public office of the Director, but the provisions of the Civil Procedure (Suits by or against the Government or Public Officers) Act shall otherwise apply in respect of any such suit as they apply in respect of any suit by or against any other public officer.

5B.   Legal representation

   The Director may, apart from the Attorney General, instruct any legal practitioner—

   (a)   to provide legal representation to the Director in any civil proceeding before any court, including any proceeding concerning appeals against the decisions of the Director on any aspect of the exercise of the functions, duties and powers of the Bureau or of the Director; or

   (b)   generally to provide legal advice or to act for on behalf of the Director.

6.   Qualifications and tenure of office of Director

   (1) No person shall qualify for appointment as Director unless he is of high integrity and possesses qualifications and training necessary for the performance of the duties of that office.

   (2) A person holding the office of Director may be removed from office by the President, with the confirmation of the Public Appointments Committee, for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour.

   (3) The President may, if he considers it desirable in the public interest so to do, suspend the Director from exercising the duties of the office of Director pending investigations to determine whether or not the Director may be removed from office under subsection (2).

7.   Appointment of Deputy Director

   (1) The President may appoint a Deputy Director on such terms and conditions as the President thinks fit, and the appointment of any person as Deputy Director shall be subject to confirmation by the Public Appointments Committee.

   (2) No person shall qualify for appointment as a Deputy Director unless he is of high integrity and possesses qualifications and training necessary for the performance of the duties of that office.

   (3) A person holding the office of Deputy Director may be removed or suspended from office by the President in the same manner and on the same grounds as apply to the removal or suspension, as the case may be, of a person holding the office of Director.

8.   Acting Director

   (1) If the office of the Director is vacant or the Director is absent from duty or unable for any other reason to perform the functions of his office, the Deputy Director shall act as Director.

   (2) If both the Director and the Deputy Director are absent from duty or unable for any other reason to perform the functions of their office, the President shall appoint another duly qualified person to act as Director during such temporary absence or vacancy:

   Provided that where the period of such temporary absence has exceeded twenty-one days the President shall, within fourteen days thereafter, furnish to the Public Appointments Committee the reasons why the vacancy in both or either of the two offices cannot be substantively filled with immediate effect and an estimate of the time within which the vacancy shall be filled, being not longer than three months from the expiry of the period of twenty-one days herein referred to.

9.   Appointment of other officers of the Bureau

   In addition to the Director and Deputy Director there shall be appointed in the public service, on terms and conditions approved by the President, investigating officers and such other officers of the Bureau as may be required for the proper performance of the functions of the Bureau but the appointment of officers under this section shall not require the confirmation of the Public Appoint- ments Committee.

PART III
FUNCTIONS AND POWERS OF THE BUREAU

10.   Functions of the Bureau

   (1) The functions of the Bureau shall be to—

   (a)   take necessary measures for the prevention of corruption in public bodies and private bodies, including, in particular, measures for—

      (i)   examining the practices and procedures of public bodies and private bodies in order to facilitate the discovery of corrupt practices and secure the revision of methods of work or procedures which in the opinion of the Bureau may be prone or conducive to corrupt practices;

      (ii)   advising public bodies and private bodies on ways and means of preventing corrupt practices, and on changes in methods of work or procedures of such public bodies and private bodies compatible with the effective performance of their duties, which the Bureau considers necessary to reduce the likelihood of the occurrence of corrupt practices;

      (iii)   disseminating information on the evil and dangerous effects of corrupt practices on society;

      (iv)   enlisting and fostering public support against corrupt practices;

   (b)   receive any complaints, report or other information of any alleged or suspected corrupt practice or offence under this Act;

   (c)   investigate any complaint, report or other information received under paragraph (b);

   (d)   investigate any alleged or suspected offence under this Act;

   (e)   investigate any offence under any written law disclosed in the course of investigating any alleged or suspected corrupt practice or offence under this Act;

   (f)   subject to the directions of the Director of Public Prosecutions, prosecute any offence under this Act;

   (g)   investigate the conduct of any public officer which, in the opinion of the Bureau, may be connected with, or conducive to, corrupt practices and to report thereon to the appropriate authority;

   (h)   inquire into any matter in relation to the exercise of its other functions under this section.

   (2) The Bureau may decline to conduct an investigation into any complaint alleging an offence under this Act or to proceed further with any investigation if the Bureau is satisfied that—

   (a)   the complaint is trivial, frivolous, vexatious or not made in good faith; or

   (b)   the investigation would be unnecessary, improper or futile.

   (3) In any case in which the Bureau declines to conduct an investigation, or to proceed further with any investigation, the Bureau shall inform the complainant in writing of its decision.

   (4) Where the Bureau has carried out any investigation of any alleged or suspected corrupt practice or offence under this Act, it may, if it considers it necessary so to do, report its findings and recommendations to the appropriate authority regarding any matter which reveals, or points to, the existence or prevalence of any conduct connected with; or conducive to, corrupt practices; and in any such report, the Bureau may require the appropriate authority to take or institute such corrective action or measure as the Bureau shall reasonably specify in the report or to explain to the Bureau why such action or measure may not be taken or instituted or what other action or measure may instead be taken or instituted, and the Bureau may make such modification to its recommendations or requirements as it may consider desirable.

11.   Powers of the Bureau

   (1) For the performance of the functions of the Bureau under this Act, the Director may—

   (a)   authorize in writing any officer of the Bureau to conduct an inquiry or investigation into alleged or suspected offences under this Act;

   (b)   require any public officer or other person to answer questions concerning the duties of that public officer or of any other public officer or other person, and order the production for inspection of any standing orders, directives or office instructions relating to the duties of the public officer or such other public officer or other person;

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.