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Position
Paper on the Independent Anti Corruption Commission
Transparency International Zimbabwe
(TI-Z)
July 02, 2002
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Analysis of Amendment 16
Section 108A of the Constitution was created by Amendment 16, it
states that the President will appoint members to this commission.
This section does not mention the independence of this commission,
which according to international standards is vital for its existence
and its effectiveness. The SADC Protocol on Corruption signed by
Zimbabwe in August 2001 refers to setting up of institutions that
will fight corruption, although it does not out rightly state that
an anti-corruption commission should be independent, this has been
proved through experience that it should be.
Commissioners
In
order to have an independent commission it is necessary for the
public to be involved in the selection of the members of the commission.
Inviting nominations from the public after stating clear criteria
of the qualities required for such a commission can do this. These
nominations will then be presented to Parliament, which will peruse
and shortlist the nominees they have found suitable and take these
up to the President for endorsement. The nominees should be persons
from all sectors of society including the private sector and civil
society. It is essential when nominating an individual to assess
whether he/she has personal integrity and is from an organisation
that upholds accountability and transparency.
Nominees can
also be sought from interest groups such as civic society rgainsations,
professional bodies such as the Chartered Accountants and even from
the private sector. Approximately ten commissioners should be nominated.
There should
be gender balance in the composition of the commission, this is
to say that the commission should not only consist of men and women
but they should be persons who are gender sensitive. There is a
gender related aspect of corruption that has to be taken into consideration
as the effects of corruption affect men and women differently.
The purpose
of this is to have a commission that is there to serve the interests
of the nation as a whole not the privileged few. Section 108A states
that persons of integrity with knowledge and experience in administration
or the prosecution or investigation of crime or for the suitability
for appointment, if these members are appointed by the President
challenging their appointment, becomes very difficult if they do
not fit this criteria. The selection criteria provided by Section
108A is very narrow and giving the public a chance in the selection
process may improve the quality of the commissioners.
The commission
should be in a position to hire its own lawyers, computer and systems
analysts, accountants and any other professionals it requires.
Functions
of the Commission
The
functions of the commission are tabled in section 108A (3) as briefly
to combat corruption, theft, misappropriation, abuse of power and
other improprieties in the public and private sectors; to make recommendations
to the Government and the private sector to increase accountability
and integrity and to prevent improprieties and to exercise any other
functions imposed by an Act of Parliament. After having studied
other African Commissions, the commission must include in its functions
the following:
- Investigating the conduct of any person which in the opinion
of the commission may be connected or conducive to corruption,
- Receiving and investigating any complaints alleging corruption
in any public body,
- Educating the public on the evils of corruption,
- Assisting any law enforcement agents of the government in the
investigation of offences involving dishonesty or cheating of
the public revenue,
- Advising heads of public bodies to change in practices or procedures
compatible with the effective discharge of the duties of such
public bodies which the commission regards as necessary to reduce
the likelihood of the occurrence of corrupt practices,
- Assisting any law enforcement agencies of the government in
the investigation of offences involving dishonesty or cheating
of the public revenue,
- Examining the practices and procedures of the public bodies
in order to facilitate the discovery of corrupt practices and
to secure the revision of methods of work or procedures are in
the opinion of the commission, may be conducive to corrupt practices,
- Enlisting and fostering public support in combating corruption.
Having these
broad functions increases the likelihood of the commission being
successful, as it will not be restricted to certain aspects of corruption.
Independence
of the Commission
The
issue of independence is important since if the commission is under
a ministry there is the danger of political interference and issues
of political accountability and allocation of resources for the
commission are raised to establish such independence. If politics
is the key aspect the commission will not be successful. In most
existing anti-corruption commissions the officials are appointed
by the Head of State and report either directly to the Head of State
or through a ministry. This is giving too much power to the Head
of State and this may be detrimental if he/she is not seen to be
committed to the anti- corruption cause. Section 108 A (1) states
that this will be the case in Zimbabwe.
Finances
of the Commission
For
this commission to succeed it must have adequate financial resources
provided by the responsible government. The reason for this is that
in order to tackle corruption at high levels the commission must
have the resources to be able to investigate and detect the practices.
There are high-tech methods of misappropriation especially in the
private sector and the commission and those working under it have
to be abreast with these methods. Only in Malawi and Botswana have
the commissions stated that they have sufficient funding. In African
countries where such commissions exist, surveys were conducted and
these indicated that in order to curb corruption independent commission
require sufficient funding. Zimbabwe should learn a lesson from
these countries while it is in the process of establishing its own
commission. Section 108A of the constitution is limited.
Considering
the nature of the commission it should have its own budget allocation
and not be part of a ministry as the issues of independence and
control will arise. Other commissions in Zimbabwe have been funded,
through a ministry, and have thus lost their autonomy, e.g. the
Electoral Supervisory Commission and the ineffective Ombudsman’s
office. Constitutional changes have to be made to allow the commission
to be autonomous.
Powers of
the Commission
It
is important for the commission to have the power to investigate
cases of corruption, section 108A (4)(a) states that Parliament
can confer powers of investigation on the commission. This in our
opinion is inadequate as this should be one of the commission’s
major duties. It is a well-known fact that the law enforcement agency
is ill equipped to deal with sophisticated methods of corruption.
The commission
must have powers of prosecution and not rely on the AG. This is
because the AG can decline to prosecute, as he is part of the cabinet.
It is imperative for the commission to have it's own powers to investigate
and prosecute thereby taking away the responsibility of corruption
from the police and AG. The fact that the commission be created
and remains autonomous is an integral aspect of its success.
Public education
is another aspect that the commission has to be involved in as one
of its principle powers. The proposed commission as provided for
by the Constitutional Amendment does not confer such powers on the
commission. The most important aspect of public education is that
the general public will be made aware of the evils of corruption
and how each case impacts on their lives. Once this happens the
prevention arm of the commission should be its strongest as when
the public says no to corruption in all sectors, i.e. government
departments and private sector, it demands accountability and good
governance, the levels of corruption will decrease.
The protection
of whistleblowers must be incorporated in the commission. Whistleblowing
is the act of reporting a corrupt act to the relevant authority,
regardless of the motivation. Providing legal protection to whistleblowers
is a key component to any systematic effect to fight corruption,
it is important to provide whistleblowers with strong assurance
against retaliation and encourage them to come forward and speak
out in the public interest. It is necessary to seek significant
solutions to the problems that cause people to refuse to come out
in the open with cases of corruption. The purpose of the protection
of whistleblowers is supposed to be the first step in mitigating
the fear of reporting and reluctance on the part of the potential
whistleblower. Section 108 A does not mention whistleblowers protection
and we as TIZ see this as a major oversight on the part of the constitutional
amendment.
International
Conventions
Internationally,
there has been an increased effort to curb corruption this is a
result of the realization of the astronomical sums of money lost
through this deed. There are bodies that have adopted conventions
on anti- corruption e.g. Organisation for Economic Co-operation
Development (OECD) Convention Against Bribery of Foreign officials,
OAS (Organisation for American states) has an Inter- American Convention
against corruption. UN Declaration Against Corruption and Bribery
and the International code of conduct for public officials and the
TI Lima Convention give clear guidelines of how these conventions
can be implemented at all levels, i.e. internationally, regionally
and nationally.
These conventions
have to be taken into consideration especially where they have been
signed and can also be used as a guideline to enact or amend our
own legislation and in the establishment of the commission. The
conventions are not limiting the fight of corruption to be squarely
on the government’s head but the private sector and civil society
must be engaged to combat corruption nationally and internationally.
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