(J discreet law

Mr Simon Cox
BBC Current Affairs

Our Ref: 

27 July 2016

 

By email: simon.c0x@bbc.co.uk

Dear Sir,

We have been consulted by our client, Development Aid from People to People,
Malawi (DAPP Malawi) who have referred to us the email correspondence which
has passed between you and their UK public relations adviser, Nick Colwill of
Aequitas Consulting.

In your email to Mr Colwill of Friday, 8 July you posed a series of questions,
some general and some particular, but all loaded with insinuations of wrong-
doing. They are ?When did you stop beating your wife?? type questions, which
should play no part in responsible journalism. They indicate that, rather than
taking any genuine interest in establishing the truth, your intention is to broadcast
serious allegations against our client on the assumption that it will suffice to
protect the BBC from liability for defamation if our client is considered to have
been given an opportunity to respond. As the BBC lawyers will advise you, as a
matter of law, any such assumption is mistaken, nor does your approach comply
with the own Editorial Guidelines. In your email of 8 July you stated that
the BBC programme is to be broadcast on 2 August, and that you would be
?finishing? your recording in the following week, apparently regardless of anything
our client may have to say.

it is a matter of regret that you have declined to respond to Mr Colwill?s request
for clarification whether he has understood correctly that ?the implication of your
questions appears to be that foreign aid funds received by DAPP for social
welfare projects in Malawi have been obtained by fraud and have been diverted
for the benefit of the Teachers? Group.? It is clear to us that Mr Colwill has
correctly identified the implication of your questions, an implication which if
conveyed by the BBC in its broadcast is both defamatory of our client and, we
are instructed, unsupported by the evidence.

Discreet Law LLP Partners
Great Cumberland Place, London, W1 7AL
T. +44 (0) 207 725 4300 E. 



Teachers? Group and Moqens Amdi Petersen

You refer in your email of 8 July to the Teachers? Group (TG), which you say that
?numerous?current and former members have told you is a ?cult like organisation
(whatever that may or may not mean) that seeks to control its members.? You
refer to Amdi Petersen, whom you identify as ?head of the TG and wanted for
embezzlement by lnterpol,? you ask ?What is relationship to 
network of offshore companies which prosecutors in Denmark allege are used to
embezzle millions of dollars?? and ?Why is DAPP dealing with a man on the run
accused of embezzlement??

We do not purport to represent either Mogens Amdi Petersen or TG. We have,
however, spoken with John Korso Jensen, of the law firm Manzanti-Andersen
Korse Jensen, who acted as lead Counsel for Mr Petersen when he was
prosecuted in Denmark. As appears from its judgment, the Danish court heard
evidence relating to the history and organisational structure of TG.

TG, we are advised, was formed in 1970 by a number of teachers who agreed to
pool their resources initially to establish schools in Denmark, and subsequently
abroad. The activities of its members extend not only to education but also to
social welfare and environmental projects. TG has no formal structure, has no
legal status and no religious affiliation. This is neither unusual nor mysterious; the
UK Conservative Party has been held under English law not even to have the
status of an unincorporated association: see Conservative Unionist Central
Office Burrell [1982] 1 WLR 522. TG is a loose association of like-minded
individuals.

After a total of 161 full days in court proceedings which ran from 2003-2006, in a
judgment which we are told runs to 4,000 pages, Mr Petersen was acquitted of all
charges against him, which related to 29 projects undertaken by a Foundation
established in 1987 ?to Support Humanitarian Purposes, to Promote Research
and to Protect the Natural Environment. In its judgment, the Danish court in
summary found that the prosecution had not established either that Mr
Petersen was legally responsible for decision-making within the Foundation or 
that funds were not properly used for benevolent purposes in accordance with the
objects of the Foundation. One of the eight defendants, namely the Foundation?s
finance officer, Sten Byrner, was found to have been personally responsible for
one improper payment of US $500,000 (which, as the court judgment confirms,
had been repaid in full with no loss in fact suffered) and was given a suspended
sentence of one year?s imprisonment; the remainder of the defendants were all
acquitted. The case was politically controversial, not least because of the public
expense involved in the conduct of the case, which has been estimated in Danish
media to have cost at least US $12million. The Danish Prosecutor filed an appeal
which, although limited to 2 of the 29 projects covered by the original Charges,
has been estimated by the prosecution lawyers to require a further 80 days of
court hearings. Having been acquitted in August 2006, Mr Petersen, who had for
many years prior to the court case been living outside Denmark, had left the
country before the appeal was filed.

It is in these circumstances highly misleading to suggest, as your line of
questioning does, that DAPP Malawi is tarnished by association with TG and,
through TG, by association with Mogens Amdi Petersen. The objects of TG are
benevolent; Mr Petersen was fully acquitted after an intensive review of the
evidence by the Danish court. Neither DAPP Malawi nor any of its present or
former board members had any involvement in the Danish court case. Mr
Petersen has never held any position in DAPP Malawi. We trust that, should the
BBC in its broadcast refer to TG and/or Mr Petersen, it will make these facts clear
to its audience.

DAPP Malawi

In response to your specific questions, we are instructed that DAPP Malawi is an
independent, non profit organisation, directed by its Board of Trustees and
registered under the Malawi Trustees Incorporation Act 1962. It exists to promote
social and economic development in Malawi and Southern Africa through the
implementation of development projects in areas such as training and education,
social welfare, health, and farming. Funds received by DAPP Malawi are applied
fully for welfare projects in Malawi, in accordance with budgets approved and
monitored by donors such as UNICEF and DFID. Its accounts are audited by
KPMG, which regularly certifies the eligibility of expenditure claimed and revenue
allocated to specific projects. No DAPP Malawi funds are passed to TG and
DAPP Malawi has no relationship to any ?network of offshore companies? which
you say is alleged by prosecutors in Denmark to be used by TG to ?embezzie
millions of dollars. TG does not control the Farmer?s Clubs or Teaching Colleges
which are managed by DAPP Malawi.

Several of your questions relate to allegations concerning contributions made to
TG. We are instructed that there are employees of DAPP Malawi who are or who
have been part of TG and who have attended conferences in Mexico and
elsewhere. As far as DAPP Malawi is concerned, this is a private matter for them
as individuals - just as membership of or donations to churches or other
benevolent causes are a matter for the individuals - and has nothing to do with
donors, whose funds are not applied to TG. The ethos of TG is that both
participation and donations are voluntary. DAPP Malawi firmly denies that it
demands contributions from staff for membership of TG, that it pressurises
employees to contribute to TG, that it demands to know how its employees spend
their money, that it refuses to let TG members see their families or that it makes
any deductions from salaries, other than mandatory deductions such as income
tax, or deductions as per instruction by the individual employee.

Specifically, you refer in your email of 8 July to a claim made by ?a former DAPP
TG member who says he is owed US $88,000 in T6 contributions which DAPP is
refusing to pay him."Our client is aware that a claim in this amount was made by
Patrick Goteka, a Zimbabwean national, who was employed by DAPP in Malawi
between 2009 and 2013. He received his termination benefits and relocation
costs from DAPP Malawi at the time of the termination of his employment. In
2014 he presented a further claim which was rejected entirely by the National
Employment Council in Zimbabwe in a decision dated 16 December 2014, since
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he had already received the termination benefits to which he was entitled from
DAPP Malawi. Mr Goteka?s claim has been held to be wholly without merit.

You refer in your email to a further allegation that ?a former professional worker
on a DFID funded programme told [you] that she was employed for 6 months and
given nothing to do and concluded she had been employed to ful?l a budget line.?
Our client cannot reasonably be expected to respond to such an unspecific
allegation from an unidentified source; our client suspects (but cannot be sure)
that the person concerned may have been employed for a 6?month probationary
period, but not kept on when it expired. If so, it is a matter of regret if the
employee felt she did not have enough to do, but if her conclusion was that she
?had been employed to fulfil a budget line? it is a conclusion which, we are
instructed, is without foundation.

You allege in your email of 8 July that UNICEF decided ?to stop funding 
WASH of concerns about transparency and deductions
from salaries of TG members of DAPP. Following a site inspection in May 2016,
it is the case that UNICEF raised with DAPP Malawi an issue of transparency,
relating to the need to keep clear records of the criteria applied in awarding
contracts to local suppliers, for example for the drilling of boreholes. This issue
was satisfactorily addressed by DAPP Malawi in its response. We are instructed
that at no time has UNICEF ever raised with DAPP Malawi concerns over
?deductions from salaries of TG members? as it surely would have done if this
were a matter which had affected its decision to bring the WASH programme to a
close earlier than had originally been proposed.

You further state that you have spoken with a field officer who says that
budget lines on the UNICEF WASH projects were not carried out and other costs
were exaggerated. UNICEF is aware of this and is investigating.? We are
instructed that at no time has UNICEF raised with DAPP Malawi concerns that
costs have been exaggerated. You do not identify the field officer? who
makes this claim, nor what costs are alleged to have been exaggerated. Our
client cannot reasonably be expected to respond to such an unspecific allegation
from an unidentified source. If a DAPP field officer has any evidence of costs
having been exaggerated, he or she would be duty bound to raise this with his or
her employer so that it can be investigated and you, as a journalist, are duty
bound to provide our clients with sufficient information to allow them to respond to
the serious accusation you make, an accusation amounting to fraud.

You refer to a service agreement with ?the federation in Zimbabwe using DFID
funds.? The administrative services provided to DAPP Malawi by the Federation
Humana People to People, which has its headquarters in Zimbabwe, include
development and building of capacity to manage programmes, fund raising
initiatives, staff training, financial management and accounting procedures. Such
arrangements are often used by international aid agencies, such as World Vision,
which has a co-ordinating body similar to the Federation. In DAPP Malawi?s
case, provision for these services by the Federation is made transparent in the
budgets agreed with DFID and other partners and represents good value. Such

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payments made to the Federation are fully documented, and properly accounted
for at the conclusion of each project.

In your emails to Nick Colwill you make no reference whatsoever to DAPP
Malawi?s strong contribution over many years to social welfare projects in Malawi.
We find this omission startling.

DAPP Malawi undertakes vital humanitarian work in partnership with local
communities in one of the poorest countries of the world. We are instructed that,
since its foundation in 1995, DAPP Malawi has over the past 21 years
undertaken humanitarian work that has reached and affected the lives of nearly 3
million people in Malawi, working in a challenging and complex environment and
helping to tackle multiple economic, social and health-related challenges.

DAPP Malawi works closely with long-standing and respected international and
national partners and donors, and all of its operations are monitored and
independently evaluated in conjunction with the requirements of those partners
and donors. Many thousands of people rely on DAPP Malawi?s humanitarian
work, and the organisation is proud to have played a significant role in improving
lives, tackling poverty and combating the spread of major diseases in Malawi
such as 

We trust that, should the BBC in its broadcast refer to DAPP Malawi, it will make
these facts clear to its audience.

Finally, you ask in your email whether DAPP Malawi sent an employee to follow
your car and take photos of you to circulate while you were in Malawi. We are
instructed that the answer is No. Our client has also referred to us an email dated
21 July sent to Nick Colwill by Bridget Harney, Assistant Editor, BBC Radio
Current Affairs, in which she states that ?some contributors to [your] programme
are receiving unwelcome phone calls from DAPP employees in 
tell [her] they are feeling intimidated. Our client has been made aware of recent
telephone calls with DAPP staff members which have been instigated by Patrick
Goteka, who has continued to complain that he has not been paid what he claims
to be owed. Aside from this, our client is not aware of any contact between DAPP
employees, whether in Malawi or Zimbabwe, and contributors to the programme,
whose identity the BBC has withheld from them.

Yours faithfully
OHM

Discreet Law

cc. Bridget Harney, Assistant Editor, BBC Radio Current Affairs,
bridqet.harnev@bbc.co.uk