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Vital need for independent prosecuting authority
Beatrice Mtetwa
September 17, 2006

THE recent prosecutions of high-powered ministers and their close allies has raised a number of issues, including the need for uniformity on whether these "accused" should retain their positions while their cases await adjudication.

In most democratic countries, it is normal for a high-ranking person who is charged with a criminal offence to be suspended pending a determination of their case. This is a procedure that is generally taken for granted in respect of employees as it is enshrined in the Labour Act and codes of conduct which provide that where an employee is suspended, with or without pay, pending the holding of disciplinary proceedings or the finalisation of their case. It is not difficult to understand and appreciate the rationale behind this rule.

The presence of the accused person in his/her position while he/she is on trial can be extremely awkward for colleagues and all those who might be involved in the proceedings.

For those who will be witnesses, the discomfort of having to interact on a daily basis while the proceedings are on-going can clearly interfere with the course of the proceedings. This is particularly so where the accused holds a senior and influential position and can therefore make or break the career of a potential witness or participant in the proceedings.

When former Finance minister Christopher Kuruneri was arrested, he was held in custody for a long time and this probably made it easier for those involved in his trial to perform their duties without the fear that would be present if he had remained in office.

The cabinet reshuffle which followed his arrest also clearly made it easier to deal with his case. It was also probably for this reason that South Africa’s former deputy president Jacob Zuma was relieved of his position when it became clear that he would be prosecuted, and why he stood down as deputy president while the prosecution in the rape case was underway.

Does Zimbabwe have any uniform position in this respect? And how does this impact on the administration of justice?

The prosecution and conviction of Charles Nherera remains fresh in our minds. While he was being prosecuted, he continued to hold his positions as vice-chancellor of the Chinhoyi University of Technology and as chairperson of the Zimbabwe United Passenger Company (Zupco) board of directors.

The influence Nherera held in both organisations therefore continued right up to the time of his conviction. That he remained at the helm of these organisations whilst he was being prosecuted in my view impacted on both organisations and also on the administration of justice.

Questions that immediately come to mind include how the professor would have dealt with an employee in either of these organisations who was facing disciplinary or criminal charges. Would he have advocated such a person’s suspension pending the finalisation of the proceedings when he continued enjoying the benefits of his positions while being prosecuted for what was clearly a serious offence which has led to his imprisonment?

It has already been reported in the press that Zupco footed the bill for his legal costs during the criminal trial and there can be no doubt that this was so as he remained in control of the Zupco board and therefore continued to wield considerable influence over it right up to the time of his incarceration.

Other board members who might have been uncomfortable with this situation could not raise the issue while their chairman was there. This is particularly so given the fact that appointments to parastatal boards are based mainly on patronage and board members normally have close ties with the ruling elite and are unlikely to question their benefactor’s actions.

The finance director at Zupco is therefore unlikely to have refused to pay the chairman’s legal costs when the board had not questioned this and public funds have therefore been used to pay the legal costs in a prosecution where the chairman was guilty of abusing his position.

He was therefore financially rewarded for having abused his position in circumstances where he was seeking to unlawfully enrich himself. Had he been suspended or removed from his powerful position on the board as soon as the prosecution commenced, the board probably would not have sanctioned the payment of legal fees for its errant chairman.

That a chairman of a board in a company in which the taxpayer is the shareholder should walk out of the dock into the boardroom when it is that very position he abused is most disconcerting and gives the impression that the government’s so-called fight against corruption is not serious.

This is particularly so given the fact that the deputy chairperson of the Anti-Corruption Commission, Johannes Tomana, testified in the same trial on behalf of the accused in a clear conflict of interest. An Anti-Corruption Commission deputy chairperson who testifies on behalf of an accused person who is facing a corruption-related charge is basically saying the exact opposite of what his mandate ought to be.

In any normal democracy where corruption is being taken seriously, such a person would have testified for the state in aggravation with a clear message that the commission had zero-tolerance for corruption, particularly at a level as high as that of Nherera, who held a position in a company in which the taxpayer has an interest.

This brings to the fore the recently concluded prosecution of the Minister of Justice, Legal and Parliamentary Affairs, Patrick Chinamasa, on a charge related to the administration of justice. The minister remained in office throughout his prosecution which was being handled by his ministry and by personnel under him who would come out of the courtroom and look to the minister for any advancement within the system.

That the magistrates in Rusape declined to be involved in the prosecution is therefore clearly understandable as one’s career in the ministry could be affected in one way or another, depending on how the trial goes.

That the administration of justice is affected by an incumbent Minister of Justice being prosecuted in his own courts cannot be denied and those involved in the prosecution are already being intimidated through lawsuits that will most likely be determined by judges who owe their appointments to the very same minister.

In my view, it is absolutely crucial that a government minister who is being prosecuted for a serious offence be out of the system while the prosecution is underway. Allowing powerful government ministers to remain in office while they are being prosecuted undermines the justice administration system as it allows for special dispensations that are not normally enjoyed by other accused persons. This is particularly so where the accused is the minister responsible for justice.

If the fight against corruption is serious at all, it is hoped that the Anti-Corruption Commission will develop a holistic approach that will be seen as truly fighting corruption instead of aiding and abetting corrupt practices. It is the commission’s duty to develop rules and regulations for dealing with persons charged with criminal offences who do not fall under provisions of the Labour Act.

It is absolutely crucial that influential persons facing criminal charges which impact on their positions be suspended pending the finalisation of their cases so that justice is not only done but is seen to be done.

The ordinary person in the street is entitled to know that the rules that they are subjected to as and when they are accused equally apply to those in power and authority. That the Anti-Corruption Commission has made its presence felt in testimony that negates its mandate is most unfortunate and has reinforced civil society’s misgivings on the appointment processes that were employed in deciding who should be on such a commission.

It is for this reason that civil society is concerned that the proposed Human Rights Commission will suffer the same fate if the government is allowed to appoint commissioners through a process that might be totally lacking in transparency and which might result in human rights abusers being appointed as commissioners.

The testimony of the deputy chairman of the Anti-Corruption Commission on behalf of an accused who was subsequently convicted of a corruption-related charge puts into question the seriousness of the commission in the fight against corruption.

The payment of the convict’s legal bills by Zupco is a clear corrupt practice that would merit investigation by the Anti-Corruption Commission as this was an apparent abuse of public funds. Given the deputy chairperson’s alignment with the convicted professor, it is unlikely that this abuse will be investigated at all.

The prosecution of the Justice minister has also brought to the fore the need to have an independent prosecution authority separate from the ministry. The cabinet must of necessity expedite the tabling and passing into law of the Bill that will give autonomy to the Attorney-General.

This would help avoid the current undercurrents where the Attorney-General and his staff are put in the invidious position of prosecuting the minister upon whom they rely for the effective operations of their department.

If necessary, the Anti-Corruption Commission should push for this separation and it should itself have its own budget which is not controlled by a government minister who might be subject to corruption investigations at some stage. Would the commission seriously investigate corruption in the ministry under which it falls? The Anti-Corruption Commission should be seen to be at the forefront in the fight against corruption and it should seek to cleanse itself of the unfortunate stigma of having testified for and on behalf of a corruption convict, instead of testifying against any corrupt practices wheresoever they rear their ugly heads.

*Beatrice Mtetwa is an award-winning human rights lawyer.

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