REPORTING CORRUPTION

A GUIDE FOR PERSONS INVOLVED IN THE DISCOVERY OR REPORTING OF SUSPECTED PRACTICES 

1.0    INTRODUCTION

1.1         Most people in Malawi want to see an end to Corruption and are prepared to make a stand against Corrupt practices. This is good, because it will make our country stronger and everyone will benefit.  The purpose of this booklet is therefore:

(i)          To provide a source of advice to persons who discover Corruption and want to report Corrupt practices and how they should go about it

(ii)         To encourage employees to look out for Corrupt practices in their work places.

(iii)       To provide necessary protection against reprisals.

1.2        If people know what to do if they discover corruption at work, then:

(i)          More Corrupt practices in the work place will be unveiled and people will be willing to give evidence or information.

(ii)         There will be a reduction of Corrupt practices in work places.

(iii)       The work of the Anti Corruption Bureau will be enhanced and the ACB will be more effective.

2.0    WHY “BLOW THE WHISTLE”?

2.1          Employees, who believe that they have information (including documents) that may be connected to the planning or execution of a crime, especially corrupt practices or fraud, have a duty to draw this fact to the attention of the ACB.  This applies irrespective of whether the information appears to be helpful to the suspect or defendant. This principle flows from the overriding requirement that the ACB must have as much evidence as possible during an investigation so that a correct decision can be made as to whether or not the suspect should face prosecution. Sometimes, people who do give information are called “Whistle-blowers”. 

2.2         The information contained in this booklet will help to guide you on the procedures you should follow when providing such information as well as your responsibilities if you are asked to respond to a formal request for information from the ACB. The booklet also explains your legal responsibilities when giving evidence as a witness and also shows how you can be protected against reprisals in your workplace that may result from your giving information and evidence. We hope that when you read this booklet you will be as helpful and open as you reasonably can.

3.0    FUNCTIONS OF THE ANTI-CORRUPTION BUREAU

3.1           The functions of the ACB are to:-

(i)          To ENFORCE the law on corruption by receiving, investigating and prosecuting cases of alleged or suspected corrupt practices.

(ii)         To PREVENT corruption by examining the practices and procedures in public and private bodies in order to secure revision of procedures and practices that are prone or conducive to corrupt practices and to advise Public and Private Bodies on ways and means of preventing corrupt practices and to disseminate information on the evils of corrupt practices and enlist public support against corrupt practices.

4.0    What things should you report to the ACB?

You should give any information that may disclose or reveal the following:

(i)          Corrupt Practices

(ii)         Fraud and fraudulent accounting

(iii)       Abuse or misuse of Public Office

(iv)        Public Officers using their influence      in the award of Public Contracts

(v)         Public Officers failing to declare their interest in the award of Public      Contracts.

5.0    What must you do if you become aware of such criminal activities?

(i)          Inform the ACB promptly giving as         much information as possible. You           may do this by reporting in person;                 or by writing to the ACB disclosing         your name or by remaining          anonymous; or by telephone, fax or email

(ii)         Make sure that you are acting in good faith.

(iii)       Ensure that the information is substantially true.

6.0    You must not:

(i)          Act maliciously or deliberately make any false allegation

(ii)         Seek any personal gain

(iii)       Approach anyone you suspect may be involved in the commission            or planning of corrupt practices.

(iv)        Do anything that might put you or others at risk, or prejudice a possible investigation or prosecution.

(v)         Reveal your suspicion to anyone, other than the ACB.

7.0    When are you likely to discover such activities?

The most likely situation in which you might find yourself in possession of information which may be relevant to a corrupt practices, investigation or prosecution is where you, or your department or institution has had official dealings with an individual or company known to be under investigation.  All such dealings will be relevant, but it is important not to take too narrow a view about this.  The Bureau will usually be able to advise quite readily whether your information is likely to be of interest to them and would prefer to be given the opportunity of doing so.  Information which throws light on the background or context of suspected offences may also be of interest and should be brought to the Bureau’s att1ention.

8.0    REQUESTS FOR DOCUMENTS AND OTHER INFORMATION:  THE IMPORTANCE OF DOCUMENTARY EVIDENCE

8.1           It is essential that the ACB has access to as much relevant information as possible. Documentary evidence, particularly where the documents are contemporaneous to the events in question, may be crucial.  Your response to requests for documents should be both thorough and careful.

8.2       Procedures for Handling Requests

The ACB has the legal power under the Corrupt Practices Act to make requests for documents and other information from any person. Normally, such requests are made in the form of a “NOTICE TO PROVIDE INFORMATION” to the Head of the Department or Institution who is under a legal obligation to respond quickly.  If you think that you are not the right person to respond, or that others may also have documents related to the request you should inform the Bureau promptly.

8.3       Your Responsibility

It is your responsibility to ensure that you fully understand the terms of any notice or request before responding.  If you do not fully understand the notice or request or if you think you will have difficulties in complying with it, you should contact the Bureau immediately. The ACB will then make any necessary clarifications. If from your knowledge of the work of your department you know the material sought is not available in the particular form requested but could be accessed in a different way you should tell this to the Bureau. However, you will remain under an obligation to volunteer any information you have or which subsequently comes to light, which you believe to be relevant.

It is an offence under the Corrupt Practices Act to refuse to comply with a legal Notice or request, or to hinder or delay the work of the ACB.

8.4       Declining What Documents are Relevant

In deciding what documents may be relevant; you should be guided by the terms of the Notice or request. You should not confine your attention to documents which support any particular version of events even if this is what the request asks you to do: a document which suggests that a given event did not happen is clearly as relevant as one suggesting that it did.  Usually the notice or request will give brief details of the offence being investigated and what information is needed.   If you are aware of any information or documents which may be relevant to the offence or to any known lines of defence or if such information or documents subsequently come to light, this should be reported to the ACB.   You should also bear in mind the possibility that relevant information may exist in non-written form e.g. in a computer database.

8.5       Locating Documents or Other Information

Where possible, you should as a first step discuss the request for documents with any colleagues who were directly involved in the matter to which it relates.  Even if they only have a hazy recollection of these matters, they may be able to help you narrow down the range of files which may contain relevant material or alert you to search in files which might otherwise have been overlooked.  You must search for any document which you know, believe or expect to exist and if any of these cannot be found you must inform the ACB. why you believe or would expect these documents to exist and what you know about their contents.   You must also examine those files which by their title or your knowledge of their content, you would expect to be the ones to contain any relevant material.  Loose documents should be located and checked.  In addition, individual colleagues  likely to have been in receipt of documents within the search parameters should be asked whether they have unregistered loose documents, cupboards, filling cabinets and drawers in which loose documents might be stored should also be checked.

8.6       Responding to Request

The Notice or request for documents may suggest or prescribe the form that your response should take, and it may be convenient for you to respond in this way.  Possible forms of response include:-

(a)         Sending copies of all the documents that you have identified as relevant to the request or to the matters under investigation

(b)         Inviting the Bureau to examine the documents you have identified

(c)         Describing any information and/or documents you have identified so that the ACB can assess whether or not it is likely to be relevant.

9.0    GIVING EVIDENCE - INTERVIEWS AND WITNESS STATEMENTS

9.1           If you have been personally involved in events or procedures connected to a criminal investigation, you may be asked to give a personal account of the events or procedures in an interview by the ACB and make a Witness Statement. You may later have to give evidence in Court.

The ACB will give you advice on the legal requirements (and constraints) you must comply with in giving evidence. However, there are two overriding considerations that you should bear in mind:

(a)         That it is YOUR evidence, not that of your institution, the investigators, the prosecution team or anyone else; and

(b)         That you must be truthful and not mislead by omission.

9.2       Witness Summons

If you are served with a witness summons you will be placed under a legal obligation to appear before a court of law. You should obtain advice from the ACB as soon as you are served with a summons.  Your upkeep will be taken care of by the ACB.

9.3       Giving Your Own Evidence

Usually, an ACB Investigation Officer will interview you if you are a witness and then write a statement based upon the answers you give. This is a convenient method of assembling and structuring the evidence and of ensuring that everything is covered.  However, you are entirely free to have any amendments made to your statement and you may write it yourself. You will be required to make a declaration to the effect that what you have to say is the truth and that if you tell lies you may be prosecuted yourself.

However, the important point to always remember is that whether the Investigation Officer records your statement, or you write it yourself, at the end of the day it will be your statement.  Therefore before you sign the statement you must make sure and are absolutely satisfied that the contents are true to the best of your knowledge and belief.

You must take care when answering an interviewer’s question and in checking the completeness and accuracy of any statement produced from them.  Usually the interview will try to ask mainly “open” questions - ones that allow you to answer how you think best.  However, some at least are likely to be closed questions - ones which limit the range of possible answers often either as “Yes” or a “no”.  This is fine where an unqualified “Yes” or ”no” tells the whole story, but if you feel that you need to qualify your answer in any way (e.g. Yes but” “no except” or sometimes”) then you should get the interviewer to ask you an open question instead, or otherwise make it clear that an unqualified answer will necessarily be incomplete or even misleading.

9.4       Testing the Accuracy and Reliability of Your Statement

When checking your statement you should actively test its accuracy and reliability rather just responding to those passages which immediately strike you as wrong:-

(a)         Are the particular incidents covered y the statement placed in their proper context?  E.g. If the statement says that the suspects told you something, did they write, telephone or meet you specifically to pass on this information, or was just mentioned in passing whilst some other matter was being discussed?

(b)         How sure are you of the matters covered in your statement?  Are any uncertainties clearly indicated?  Has your recollection of events been influenced by what other people told you at the time or by what you have learnt subsequently? Or

                (d)         If the suspects have offered explanations of this behaviour, then, leaving aside the question of whether these explanations are true or not are they credible?  Think about the reasons for your answer to this question.  Are these reflected in the statement?

9.5       Giving a Balanced Account

It is also important, that you ensure that the statement taken as a whole gives a properly balanced account and tells the whole story so far as it is known to you.  In any extreme cases is it possible for every answer you give to be true when taken in isolation. But the statement produced from your answers must not be misleading or even false when viewed in totality.  Sometimes, a statement may appear to be misleading because parts of the story are missing or because too much (or too little) emphasis is placed on a particular issue.  After checking that each individual answer or topic is accurate, you should consider the impact of the statement as a whole.

?         Does it provide a true and fair account overall?

?         If some parts of the statement are damaging or critical of the suspect and other parts are helpful or supportive, is the balance between these parts right?

9.6 When Your Statement cannot tell the Whole Story

There may be some occasions where you are unable to tell the whole story in your statement.  This may happen where:-

?         You cannot remember what happened; or

?         You are unable to distinguish between what you remember and what you have learnt since.

Whilst your statement should always be as complete as possible, the emphasis must be on accuracy and reliability.  However, it is essential that any gaps or deficiencies in the Statement are clearly indicated as failure to do so will in itself make the statement inaccurate or unreliable or both.

9.7 Relevance

It is the responsibility of the ACB to determine the relevance of any material revealed through the investigative process and it is inappropriate for others to make representations on this issue or otherwise to seek to influence the decision of the ACB.    All employees have a general professional duty to reveal to the ACB the existence of any information (including documents) that they believe may be connected with the case under investigation and to supply the ACB with copies of any documents that the ACB determines to be relevant.

10     PROTECTION

6.1           The ACB will ensure that disclosure of information in good faith is protected.  If you have provided information to the ACB, your identity shall remain confidential to the extent allowed by law, unless you waive that right in writing.

6.2         Retaliation against employees acting in good faith by making an unwarranted adverse change to their employment, status, terms and conditions is prohibited.

6.3          Retaliation includes, but is not limited to

(a)         Frequent and undesirable changes in work assigned

(b)         Refusal to assign meaningful work

(c)         Unsubstantiated reprimand or unsatisfactory performance

(d)         Demotions

(e)         Pay reductions

(f)          Unjust denial of promotion

(g)         Transfer or re-assignment and

(h)         Suspension or dismissal

11     Discovery of Information after a Prosecution has been Concluded

Where new information comes to light after a prosecution has been completed, you must notify the ACB Commission at once.  This information may be required for a fresh investigation.

SUPPORT THE WORK OF THE ACB AND HELP MALAWI TO BECOME A CORRUPT-FREE ZONE

REJECT-RESIST-REPORT CORRUPTION 

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

OR

Private Bag 170

Blantyre

Tel: 01624229/350

Fax: 01622572

e-mail: acbbt@sdnp.org.mw

OR

P.O BOX 230

Mzuzu

Tel/Fax: 01331770

e-mail: acbmzuzu@sdnp.org.mw

URL: http://www.sdnp.org.mw/ruleoflaw/acb