Loice Matanda-Moyo
The Zimbabwe Anti-Corruption Commission (ZACC) seems to have extended its activities beyond simply investigating and combating corruption. For example:
- Recently when the Minister of Health and Child Care was granted bail on a charge of criminal abuse of office, one of his bail conditions ‒ imposed presumably with ZACC’s consent ‒ was that he report regularly to ZACC. Ensuring that arrested suspects do not abscond seems more a job for the Police than for ZACC.
- Some months ago, its spokesman said that ZACC would be working with the Police to clamp down on landlords who demand payment of rent in foreign currency in contravention of SI 213 of 2019. Many people would not regard that as corrupt conduct, and might wonder why ZACC was dealing with it.
ZACC is a constitutional body, as we shall explain shortly, and like all other such bodies it can only exercise functions that are given to it by the Constitution or which Parliament confers on it through an Act of Parliament. In this and subsequent bulletins we shall analyse ZACC’s functions relating to the investigation, prosecution and punishment of corruption and other criminal conduct, and see what if any limits the law imposes on those functions.
Establishment of ZACC
ZACC was originally established as a constitutional commission in 2009 by the 19th amendment to the previous (Lancaster House) Constitution. Its establishment was only formal, however, because no members were appointed until it was re-established in 2013 by section 254 of the present Constitution.
Functions of ZACC under the Constitution
Section 255 of the present Constitution gives ZACC the following functions:
- to investigate and expose cases of corruption in the public and private sectors,
- to combat corruption, theft, misappropriation, abuse of power and other improper conduct in the public and private sectors,
- to direct the Commissioner-General of Police to investigate cases of suspected corruption and to report to the Commission on the results of any such investigation, and
- to refer matters to the National Prosecuting Authority for prosecution.
Several inferences can be drawn from the way the Constitution expresses these functions:
- ZACC can investigate and combat corruption and other improper conduct in the private sector as well as in Government.
- Theft, misappropriation and abuse of power do not necessarily constitute corruption (otherwise they would not have been mentioned separately).
- Even though they may not be the same as corruption, ZACC can combat theft, misappropriation and abuse of power.
- ZACC can also combat “improper conduct”, which is not necessarily criminal conduct.
- ZACC can instruct the Police to investigate cases of corruption; it does not have to do the investigations itself.
- On the other hand, ZACC does not have power to prosecute criminal cases, but can only refer cases to the NPA for prosecution.
One further point is that section 342(2) of the Constitution gives all constitutional bodies, including ZACC, “all powers necessary for them to fulfil their objectives and exercise their functions.”
Another point is that section 321(1) of the Constitution states that an Act of Parliament may confer additional functions on constitutional commissions. Parliament did this for ZACC when it enacted the Anti-Corruption Commission Act in 2004 [link].
Functions of ZACC under the Anti-Corruption Commission Act
Section 11 of the Anti-Corruption Commission Act sets out what it calls “the objects” of ZACC [they are really functions]. The first of these is:
“to promote the investigation of serious cases of corruption and fraud”
This suggests that ZACC should concentrate on serious cases, not petty ones ‒ and in a later bulletin we shall deal with the different sorts of corruption that are legally recognised. Note, incidentally, that the objective mentions corruption and fraud separately, indicating that Parliament did not regard all cases of fraud as necessarily involving corruption.
Section 12 of the Act gives ZACC additional functions, in particular the monitoring of procurement systems of public and private institutions. Procurement in Zimbabwe and elsewhere is a particularly fertile field for corruption so it is little wonder that the Act mentions procurement specifically.
The Schedule to the Act gives ZACC the following powers, amongst others:
- To recommend that the Police arrest and detain people suspected of committing offences relating to corruption as well as a long list of disparate offences such as money-laundering, possession and dealing in dangerous drugs (other than cannabis), illegally exporting grain, contravening the Exchange Control Regulations, and stock theft. [As we have said before, we shall discuss the definition of corruption in a later bulletin but it may be noted here that by listing these crimes separately Parliament has acknowledged they do not necessarily amount to corruption.]
- To obtain search warrants [Only to obtain search warrants, it should be noted, not to conduct searches.]
- To enter premises and require people there to answer questions about crimes related to corruption [But, it should again be noted, there is no power to search the premises].
- Through the National Prosecuting Authority [the NPA], to seek court orders for the confiscation of proceeds of corruption. This does not mean the NPA must seek a court order if ZACC asks it to; ZACC must persuade, rather than compel, the NPA to seek the order.
It should be noted that in this outline of ZACC’s constitutional and statutory functions we have not mentioned ZACC’s important advisory and educational functions. Both the Constitution and the Anti-Corruption Commission Act give ZACC powers to make recommendations on ways to enhance integrity and accountability in the public and private sectors, to promote public awareness about corruption and its harmful effects, and to assist in the formulation of systems and procedures to prevent corruption. We have not mentioned these functions because in this bulletin we are concerned with ZACC’s powers in relation to the investigation, prosecution and punishment of corruption and other criminal conduct.
Additional Power of Arrest given to ZACC officers
ZACC officers have the same power of arrest as police officers. They were given this power by SI 143 of 2019, which declared them to be peace officers for the purposes of the Criminal Procedure and Evidence Act [CP&E Act] [link]. We explained the effect of this declaration in our Commissions Watch of the 17th July 2019 [link], but briefly the CP&E Act gives police officers and other so-called “peace officers” the same power to arrest criminals and suspected criminals. Hence the declaration of ZACC’s officers as peace officers effectively equated them with police officers in regard to their powers of arrest.
Conclusion
We are now in a position to sum up ZACC’s functions in regard to the investigation, prosecution and punishment of corruption and other crimes [which for convenience we shall call “corrupt conduct”]:
- ZACC can investigate and combat corrupt conduct in both the public and private spheres. This power includes:
o The power to arrest suspects. Like all ZACC’s powers, the power of arrest must be exercised in accordance with the law, in particular the CP&E Act. This means that arrests must be reasonable and must be done only to prevent suspects escaping or to prevent them committing further crimes or interfering with evidence. Suspects must be told why they are being arrested and their rights must be explained to them, in particular their right to remain silent and to consult their lawyers. Suspects who are arrested without an arrest warrant must be brought to a police station [not ZACC’s offices] as soon as possible and brought to a court for remand within 48 hours.
o The power to obtain search warrants. While ZACC can obtain warrants, its officers cannot search premises under a warrant because only police officers can do that in terms of Part VI of the CP&E Act.
o The power to enter premises and to question people. Note that ZACC’s officers can ask questions, but cannot search the premises. Note too that no one is compelled to answer ZACC’s questions, not even suspects: they have a right to silence under the Constitution.
o The power to instruct the Commissioner-General of Police to investigate particular cases. The Commissioner-General must comply with the instruction.
o The right to recommend that the Police arrest people suspected of corrupt conduct. The Police are not obliged to act on any such recommendation, because their powers of arrest are discretionary under the CP&E Act. A police officer cannot be ordered to arrest a person, unless a warrant for the person’s arrest has been issued ‒ and ZACC does not have power to issue arrest warrants. ZACC’s officers do however have power to arrest people, as explained above.
- ZACC has no power to prosecute cases. That is a power reserved to the NPA.
- ZACC has power, through the NPA, to seek court orders for the confiscation of the proceeds of corruption.
In exercising these powers ZACC should remember that it is supposed to concentrate on serious cases of corruption, as suggested by section 11 of the Anti-Corruption Act. In the next bulletin in this series we shall look at what amounts to corruption in law, and whether the law classifies corruption according to its seriousness.
To be Continued in Part 2
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