Just recently, the Zimbabwe Anti-Corruption Commission (Zacc) chief, Loice Matanda-Moyo was addressing the Institute of Internal Auditors and was moaning on lots of things and she was right.
High-ranking government officials are taking bribes, so they are making the war against corruption a very difficult one. They are not cooperating and “they are not being prosecuted”. Zacc still doesn’t have the powers to prosecute. The war against graft is being politicised.
The anti-graft unit is having problems with its asset recovery mechanisms.
She said more. Matanda-Moyo is not happy that Zacc operations are being stifled by too much interference. She is a judge, so she talked with a measured tongue. She didn’t say who was interfering with their work.
But—I guess—there is no prize for guessing here. More about this later.
On interference, it’s not as though Matanda-Moyo was whimpering just for the sake of yapping.
If you look at the Zimbabwean constitution closely enough, interference with Zacc is criminal conduct. It’s unconstitutional. If an act is criminal, it can’t be allowed.
Therefore, interference is impermissible as it runs against the law.
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Under Chapter 13, Zacc, together with the National Prosecuting Authority, is one of the commissions tasked with combating corruption.
And, together with the other constitutional commissions, as given under Section 235 and then 256, it is independent and “not subject to direction or control of anyone”.
It’s supposed to exercise its functions without fear, favour or prejudice, and the state and all its institutions must protect the commission’s independence, impartiality and effectiveness.
Let’s get a bit broader than the Zimbabwean constitution. There is the African Union Convention on Preventing and Combating Corruption that has been there for pretty like a whole generation, from 2003.
Zimbabwe is a state party to this.
Some elementary jargon that entails that Zimbabwe is a signatory to the convention. It is among the 48 African countries that have so far ratified the convention.
Article 5(3) of the convention obligates state parties to establish, maintain and strengthen independent national anti-corruption agencies. This sub-section brooks no interference or manipulation. In any case, it would be self-contradictory to talk about an independent body whose work can be interfered with.
Now, you don’t get into the business of ratifying things just for the kicks. Ratification entails accepting accountability, obligations. It means you are saying I’m going to be obligated by the convention to do what the convention says I must do. It’s prudent to say that, when Zimbabwe legislated and set up the first anti-corruption commission in 2005, it was heeding the convention’s call as a state party.
But it was always going to be void to set up the commission merely because Zimbabwe had ratified the convention. The convention goes beyond the setting up bit, and provides for sustaining and strengthening—to mean capacitation and support—of the commission.
Let’s get back to the all-important question? Are the operations of Zacc being interfered with? To start with, why must we doubt it when the very chairperson of the commission has said it so loudly, so publicly? She knows what is happening, she is a wise judge and she wouldn’t have a good reason to lie about it, would she?
Outside her passing accusation, there are tell-tale signs, of course.
A few weeks ago, there was something particularly telling about this interference. This refers to the case of Justice Mayor Wadyajena, the ruling Zanu PF MP who is facing trial for allegedly siphoning millions of good money, the greenback, from the Cotton Company, Cottco, a public entity.
As the drama was unfolding following Wadyajena’s arrest, one Zacc official posted on the institutional Twitter account that they had gathered enough evidence to get the MP into the cooler for a thousand years, so to speak. The tweet, it seems, was strategic. It was apparently meant to register frustration with the manner in which prosecution was handling the lawmaker’s case. Indeed, Wadyajena was granted bail barely before he got into the dock.
Then there was another thing that betrayed the internal contradictions and discord within Zacc.
The commission officially disowned the tweet. An employee of Zacc with the Twitter password tweets and the commission disowns the tweet. It is what it is.
The fact that Wadyajena was quickly granted bail says a lot. He is accused of stealing millions and actually attempted to ship some of the proceeds of the alleged corruption out of the country. You know now that there are hundreds of people who stole no more than a hair pin but are languishing in prison.
So, if you want, the manner in which the Wadyajena bail was handled against what is seen as overwhelming evidence could be one of the unsaid cases of interference that Matanda-Moyo was talking about. The issue of who actually could have interfered is as good your guess as it is mine.
We call it catch and release and it’s not, by any standards, a new narrative. Catch and release means that there are influential people out there who are manipulating the prosecution process. That includes interfering with the work of the anti-graft commission and the judiciary.
How many high-profile people that Zacc investigated and took to prosecution are out? Is it by coincidence that they are politically linked and away from the dock, with their cases dying out by each day? When you hear Matanda-Moyo moan about interference, is this not what she is talking about?
You know how much Zacc has been turned into a seething political battleground, right from the time of the late Robert Mugabe.
Do you remember Goodson Nguni, the former Zacc chief of investigations? At one time he had to run to the courts to stop his own organisation from taking some influential politicians to court.
These politicians had been fingered in one form of graft or another. And Nguni’s argument in his apparent bid to protect people from his own political faction within Zanu PF was that Zacc had no arresting powers, so it shouldn’t arrest the top level politicians. Even if his argument was sound, his move was as weird as it was baffling. What was his motive of contradicting the work of the very unit he headed?
That aside, there is another form of interference that people might have jaw-jawed about at one time but have since forgotten. That’s the Special Anti-Corruption Unit (Sacu). The Sacu is domiciled in the president’s office. It’s as superfluous as it is treacherous. The constitution only mentions Zacc and the prosecuting authority as the only two anti-graft bodies.
What, then, was the motive of the office of the president to set up Sacu? To start with, it gives the message, intended or unintended, that Zacc cannot be trusted. The special unit then comes in as a countermeasure by the presidency. The Sacu, in this sense, becomes a preemptive duplication of Zacc. Which means that where Zacc does its work and the presidency is unhappy with it, it can always bring in the Sacu to do what it considers to be the correct thing.
This is a subtle way of interfering with the work of Zacc. By initiating parallel processes that would, ultimately, dilute the work of the constitutionally mandated Zacc. There hasn’t been much evidence of such so far, but that could be because the prevailing situation has not justified this subtle interference.
It’s not clear if Matanda-Moyo and her organisation are taking appropriate action against the interference. As already said, interference with the work of Zacc is unconstitutional and, therefore, illegal. Matanda-Moyo and some of the commissioners are top notch lawyers. They know what must be done when the law is broken.
Or is this asking for too much. If the commission is hapless in the face of the interference, what can it do to stem it? But then, if it can’t do anything, what would justify its continued stay in office?
Tawanda Majoni is the director at Information for Development Trust (IDT) and writes in his personal capacity. He can be contacted on [email protected]