Rooting out corruption is a pre-condition for a successful democracy.Zimbabwe: Rooting out corruption is a pre-condition for a successful democracy.
Only a strong leadership with dedication and moral authority embedded in unquestioned integrity can successfully do so.
It is hoped that the government will intensify its crusade against corrupt individuals and organisations. To start with, the government must learn to respect its own laws so as to prove its commitment to the rule of law and the creation of order in the country.
As early as 1985, the government saw the need to deal with corruption and passed the Prevention of Corruption Act No 34 of 1985 (The Act).This statute is now Chapter 9:16.
Although this Act has been part of our law, it has to some extent remained obscure and unavailable for use against high-level corruption.
Over the years, it has on isolated occasions been applied against a few public officials charged with low-level and sometimes even trivial transgressions.
The purpose of the Act, as provided for in its preamble, is to ” provide for the prevention of corruption and the investigation of claims arising from dishonesty, or corruption, and to provide for matters connected therewith or incidental thereto”.
It can clearly be observed that this legislation had very noble objectives. Its fundamental aim was to prevent the incidence of corruption among public officials and the society at large.
However, the alarming high levels of corruption permeating every anatomy of our society illustrate hopeless failure in the application of the Act.
All evidence proves that the government has been apathetic in its quest to deal with economic debauchery and kleptocracy.
Over the years moral decadence and a peculiar propensity to indulge in personal aggrandisement has crept into our society. Gradually, moral imperfection has corroded and devalued our moral integrity, culminating in the wanton looting and plunder that is now commonplace.
It is argued here that if the Act had been applied robustly and consistently without fear or favour, corruption would not have escalated to the crescendo it has currently reached.
Lack of will to apply this statute had almost rendered it obsolete, but now it can easily be an effective arsenal available to the government in its graft-busting endeavours.
This article seeks to investigate those sections of the Act relevant to the fight against corruption and possibly suggest means of consolidating them. It is only through an effective law, coupled with strong will on the part of the government and other relevant role-players like Parliament, that the prevalent rottenness can be reversed.
The Act identifies categories of officials who must not indulge in corrupt practices. These are, but not limited to: trustees of an insolvent estate; liquidator of a company; executor of a deceased estate; legal representative of a minor, prodigal, or imbecile; a public officer and any member of a board of directors.
Later sections of the Act also identify “any person”, including a member of the public, thereby broadening the list of possible culprits targeted by the Act.
Section 3 outlines a host of what are deemed to be corrupt practices. Thus, it is being corrupt for one to solicit, accept or agree to accept a reward as an inducement to perform or not to perform any act. It appears the case of the Reserve Bank official alleged to have solicited a bribe to cover suspects in the foreign currency scandal would be covered under this section.
Any person who contravenes this section, if convicted, is liable to a fine or imprisonment or to both the fine and imprisonment. The value of the fine shall be three times the value of the gift or consideration.
Just as an illustration, if a police officer receives $1 million to destroy a docket, the fine upon his conviction must be $3 million.
It is important to note that one can be imprisoned for a period not exceeding 20 years.
Although this Act provides for such a heavy penalty, the courts have been hesitant to impose it. But in view of the prevalence of corruption, our courts must adopt a firm position and register society’s abhorrence of crookedness by imposing exemplary custodial sentences and heavy fines.
Further, upon the conviction of a corrupt individual, the court can declare any goods or gift paid forfeited to the state.
Section 6 creates an interesting scenario. Where the Minister of Anti-Corruption suspects any individual to be involved in corrupt activities, he can cause such an individual to be “specified”. Effectively, such a “specified” person will not, among other things, be allowed to operate a bank account, to dispose of his property or to perform duties as a director of a company, except with the authority of an investigator appointed by the minister. The said investigator shall report his findings to the minister.
The Act is silent about what course of action the minister must take upon receipt of the report. And it is here that the statute is found wanting. It can only be assumed that the logical step to take would be to surrender the report to the police for possible prosecution of the corrupt individual.
Nothing further in the Act is said about the frozen bank accounts nor the lifting of the “specification”. Perhaps it is the investigator’s report that will dictate the course of events.
The above analysis of this otherwise important section proves that this law is half-hearted and toothless when dealing with high-level corruption. Most business moguls, individuals, public officials, companies and civic organisations have allegedly indulged in corrupt activities but only a few have been specified; in fact, the only individuals so specified have been the suspects in the “gold scandal”. The rest, it appears, have escaped the uncoordinated attempt to net them.
This is so despite the abundant evidence of corrupt activities by these individuals and organisations. The Act, particularly Section 6, has not been effectively applied, perhaps due to ignorance, goodwill or some sinister reasons best known to the powers-that-be.
There are individuals who, within short time spans, have amassed obscene wealth well beyond their means. These have taken advantage of the laxity in our law and the government’s ineptitude and have built empires of wealth hardly justified by the incomes they earn.
With the collusion of public officers and other accomplices, they have looted, laundered, pilfered, indulged in speculative activities and “externalised” vast sums of money to the detriment of the economy.
This ultra-selfish class of Zim-Mafias, syndicates, gangsters and white-collar hoodlums caused havoc to our economy while the government remained aloof.
The sole reason why our economy is in its present sorry state is because there has been a deliberate disregard of public accountability and the promotion of anarchy. If the government had effectively monitored activities of individuals and organisations by applying the provisions of the Act, our economy would certainly not have degenerated to the extent it has.
There is need for Parliament to revisit the Prevention of Corruption Act and fine-tune it. Rather than merely specify suspected corrupt individuals and organisations, it is suggested that more robust and ruthless measures be taken. These must be practical and effectively deal with all manifestations of economic debauchery.
Such new laws must be inclined towards recovery of the ill-acquired wealth for the benefit of the state. To start with, it would be proper to render impecunious suspected corrupt officials by forfeiting their property to the state pending investigations. Where there is prima facie proof of corrupt dealings, the state must be allowed, through a court order, to recover products of ill-dealing. Such court orders are commonly known as Anton Piller orders in other jurisdictions.
This suggestion is made because crooked individuals are smart and have means of hiding their wealth if current means are applied.
It is therefore suggested that a special court be created. It would also be prudent to mandate the Attorney-General’s Office with power to both investigate and prosecute individuals and organisations suspected of corruption. This office has the necessary expertise and experience. Of course this exercise can only be a success if necessary funding is provided for such a daunting activity.
Vote Muza is a legal practitioner with the Gutu & Chikowero law firm, located in Harare.
Vote Muza, Financial Gazette (Harare), April 29, 2004