A MAJOR development in Parliament this week was the oral evidence before the Mines and Energy Portfolio Committee by Wicknell Chivayo, a proprietor in Intratrek Pvt Ltd, which was awarded a multi-million-dollar solar power project under controversial circumstances, and has failed to fulfil the contractual obligations.
By John Makamure
Honourable Temba Mliswa, the new chairperson of the Mines and Energy Portfolio Committee, is certainly a breath of fresh air. He has injected some energy into the work of the committee, which is demonstrating how to carry out effective oversight when it comes to issues to do with public funds. Some of the portfolio committees have tended to scratch the surface when inquiring into or investigating issues of critical public interest despite overwhelming evidence of wrongdoing.
Parliament has a constitutional mandate to safeguard public funds. Section 299 of the Constitution requires Parliament to monitor and oversee expenditure by all government entities at whatever level to ensue all revenue is accounted for, all expenditure has been properly incurred and any limits and conditions on appropriations have been observed.
The Zimbabwe Power Company (ZPC), a subsidiary of Zesa Holdings, is a public entity which is expected to abide by the principles of sound public financial management. These principles include transparency, accountability, prudency, responsibility, economic and effective use of public resources.
The payment of $5.6 million to Chivayo by ZPC without bank guarantees coupled with failure to deliver on the project is serious abuse of public funds. Such abuse and suspicion of underhand dealings in the whole procurement process has to spring portfolio committees into action in fulfilment of Parliament’s oversight function.
One of the terms of reference of portfolio committees, as provided for in the Standing Rules and Orders, is “to monitor, investigate and inquire into any policy, legislative or any other matter” the committee deems relevant to the government department that it oversees. During investigations, National Assembly Standing Order 25 empowers the committee to summon any person to appear before it to give evidence on oath or affirmation. Only the State President cannot be summoned by portfolio committees. The witness will swear as follows: “I . . . do swear that I will say the truth nothing but the truth, so help me God”.
It is similar to the oath that is administered to a witness testifying in a court of law.
So this means there is no room for lying when giving evidence under oath. Lying attracts contempt of Parliament charges. The procedure for laying contempt of parliament charges on someone requires a Member of Parliament to raise a motion in the House of a prima facie case of contempt of Parliament.
Once this motion has been raised, the Speaker has to make a ruling to determine if there is a prema facie case of contempt of Parliament on the basis of the facts put forward by the Member who has raised the motion. If the Speaker rules that there is indeed a prima facie case of contempt of Parliament, a Parliamentary Privileges Committee will then be set up to carry out an in-depth enquiry/investigation.
After the investigation, the Committee tables its report and recommendations to the House. The report is debated by the whole House and if adopted, the recommendations will kick in immediately.
I have a feeling that Wicknell Chivayo was not entirely truthful during the oral evidence session. He kept on dragging the names of other people such as secretary to the President and Cabinet Dr Misheck Sibanda, into the equation. There was too much prevarication on his part. The committee will obviously summon these people for their side of the story. I hope he has enough evidence to back up his claims. Failure to do so can potentially lead to the committee recommending to the House the setting up of a privileges committee to carry out investigations and charge him for lying under oath.
Section 148 of the Constitution provides that an Act of Parliament may provide for other privileges, immunities and powers of Parliament for its Members and officers; define conduct which constitutes contempt of Parliament, whether committed by Members of Parliament or other people; and provide for a right of reply, through the Speaker or the President of the Senate, as the case may be, for persons who are unjustly injured by what is said about them in Parliament. However, no such Act may permit Parliament or its Members or officers to impose any punishment in the nature of a criminal penalty, other than a fine, for breach of privilege or contempt of Parliament.
While this can be interpreted to mean only the courts can now impose a criminal penalty for contempt of Parliament, last year’s amendment of the Privileges, Immunities and Powers of Parliament Act still gave the legislative body power to impose an “administrative penalty” of imprisonment on persons who are guilty of contempt.
The new provision is that if a person fails to pay a fine imposed by Parliament, the Clerk of Parliament will send a document to a court setting out the sentence that was imposed on the person, and the court will be obliged to sentence the person, apparently in his or her absence, to the term of imprisonment imposed by Parliament in default of payment of the fine.
The investigations that the Mines and Energy Portfolio Committee has started are extremely important. Their conclusions and actions to be taken will demonstrate to the rest of the world that the new dispensation is serious about fighting widespread graft. There should not be any sacred cows.
All those implicated must be investigated by the committee and conclusions and recommendations made on the basis of concrete evidence. Then we can confidently say this Parliament has some teeth.
John Makamure is the executive director of the Southern African Parliamentary Support Trust. Feedback: firstname.lastname@example.org; @john_makamure