Economic Governance Watch 02/2020 - [ZACC Powers - Part 2]

ECONOMIC GOVERNANCE WATCH 2/2020

27th August 2020

The Zimbabwe Anti-Corruption Commission and its Powers

(Part 2: The Nature of Corruption)

Introduction

In Part 1 of this series [Economic Governance Watch 1/2020 of the 21st July 2020 ‒ [link] we examined the functions and powers given to the Zimbabwe Anti-Corruption Commission [ZACC] by the Constitution and the Anti-Corruption Commission Act [link] and saw that ZACC’s main function is to combat corruption.  In this bulletin we shall look at the meaning of “corruption”.

Corruption in Zimbabwean Law

Corruption is an amorphous concept and cannot be precisely defined because corrupt conduct takes many forms.  Dictionary definitions indicate how varied those forms can be:

“An impairment of integrity, virtue or moral principle, especially the impairment of a public official’s duties by bribery.

“Dishonest or fraudulent conduct by those in power, typically involving bribery.

“A fiduciary’s or official’s use of a station or office to procure some benefit either personally or for someone else, contrary to the rights of others.”

A commonly cited definition is the one used by the World Bank:

“The abuse of public office for private gain.”

All these definitions suggest that corruption has elements of immorality, dishonesty and deceit and commonly involves abusing a position of power in the public or private sphere to obtain undue benefits for oneself or someone else.  There is also an implied element, namely detriment of the public.  For example, if money for Covid-19 is siphoned off through corruption, members of the public die.

Corruption in Zimbabwe Law

Because of the variable nature of corruption, Zimbabwean law does not attempt to define it and there is no single crime of corruption in our law, no one crime that encompasses all the different forms it can take.  Instead, Chapter IX of the Criminal Law Code penalises five distinct forms of corrupt conduct:

  • Bribery, which can be committed by a person who asks for or receives a bribe and also by a person who offers or gives a bribe.  Either way the bribe is intended to induce a person to do something in conflict with his or her duty or to show undue favour or disfavour to someone else.  A bribe can take any form:  money or property or anything that constitutes an advantage or benefit [section 170 of the Code].
  • Corruptly using a false document, which like bribery can be committed in two ways.  Firstly, it can be committed by persons in a position of trust such as employees or agents [and for brevity we shall call all such people “trusted persons”] who use documents that have been falsified (forged) or that contain false statements, to deceive their employers or principals or the persons who have put them in a position of trust.  Secondly, the crime can be committed by anyone who uses a false document to deceive a trusted person [section 171 of the Code].
  • Corruptly concealing a transaction from a principal.  This crime is committed by trusted persons who hide transactions from their employers or principals, with the intention of deceiving them or making a personal profit.  The crime is also committed by anyone who knowingly assists a trusted person to hide a transaction [Section 172 of the Code].
  • Corruptly concealing from a principal a personal interest in a transaction.  Trusted persons are supposed to advance the interests of their employers or principals, not their own interests.  If they do so without telling their employers or principals they will be guilty of this crime [section 173 of the Code].
  • Criminal abuse of duty as a public officer.  If a public officer does something contrary to his or her duty, or fails to carry out his or her duty, in order to show favour or disfavour towards someone else, he or she will be guilty of this crime.  “Public officer” covers everyone from Vice-Presidents and Ministers to judicial officers and councillors, down to the humblest employees of the State and local authorities.  It does not, however, apply to the President [section 174 of the Code].

All these crimes involve dishonesty and breach of trust, which are usually regarded as essential features of corruption.  Also, all the crimes except the last one ‒ abuse of duty as a public officer ‒ penalise dishonesty and breach of trust in both the public and the private spheres.

Two points about corruption should be borne in mind:

  1. The benefit received or given in a corrupt transaction can be in money or in advantage.  The advantage may not necessarily be undue.  For example, if a person bribes an official to obtain a passport, or bribes a prosecutor to secure an acquittal in a criminal case, the transaction is corrupt even if the person is entitled to a passport or to an acquittal.
  2. A further point is that although corruption is usually thought of as a crime, it can have non-criminal consequences.  For example, if a party to a contract bribes the other party’s agent to agree to the contract, the other party can cancel it on the grounds of that bribery even though the agent and the other party have not been prosecuted criminally.

Types of Corruption

Corruption is sometimes classified as petty corruption or grand corruption, though there is no precise dividing line between the two.

Petty corruption

Petty corruption is ordinary, street-level corruption which occurs when members of the public engage with low- to mid-level officials.  A regrettably common example in Zimbabwe is the payment of bribes or un-invoiced spot fines to police officers at roadblocks.  The monetary amounts paid in individual transactions may be small, but when petty corruption becomes endemic it can destroy public trust in public institutions.

Grand corruption

This involves much larger sums of money and takes place in the top tiers of government and the private sector.  According to Transparency International, grand corruption is the abuse of high-level power that benefits the few at the expense of the many, and causes serious and widespread harm to individuals and society.  It can take many forms:  stealing from public budgets used to build hospitals, schools and roads, or granting monopolies to individuals or cartels in exchange for a share in their profits.

Grand corruption is a crime that violates human rights and deserves punishment accordingly.  It subverts political, legal and economic systems, weakening the proper functioning of entire countries and holding back their development.  It is sustained by ineffective policing, lax institutional controls, public apathy, condonation and impunity.

Zimbabwe has been struggling with widespread corruption, petty and grand, for many years.

The International Perspective

Corruption is regarded as such an impediment to national development that several international conventions and treaties focus specifically on combating it.  Zimbabwe is a State Party to the following ones:

  • The UN Convention against Corruption (2004) which Zimbabwe ratified in 2007
  • The African Union Convention on Preventing and Combating Corruption (2003) which Zimbabwe ratified in 2006, and
  • The SADC Protocol Against Corruption (2001) which Zimbabwe signed in 2001 and ratified in 2004.

All these instruments require Parties to establish and strengthen institutions responsible preventing, detecting, punishing and eradicating corruption.  The UN Convention, curiously, does not define corruption but the others have definitions of “corruption and related offences” in very similar terms, which can be paraphrased as follows:

  1. Soliciting or accepting a bribe by a public official or other person
  2. Offering or paying a bribe to a public official or other person
  3. A public official or other person obtaining illicit benefits from the exercise of his or her duties
  4. A public official or other person misusing or diverting property which he or she received in the course of his or her duties
  5. Bribing an employee or agent of a private sector entity such as a company to breach his or her duties towards that entity
  6. Bribing a person to influence a decision to be made by a public official or other person
  7. Illicit enrichment (this is not included in the SADC Protocol)
  8. Fraudulent use or concealment of property derived from any of the above activities
  9. Participating in the above activities as an accomplice, accessory or instigator.

All of this conduct is penalised in our law.  Most of them (numbers 1, 2, 5, 6 and 9) constitute the crime of bribery under section 170 of the Criminal Law Code.  Others (numbers 3, 4, 8 and 9) constitute either criminal abuse of duty as a public officer under section 174 of the Code or corruptly concealing a personal interest in a transaction under section 173.  Number 7 (illicit enrichment) can be penalised through confiscation and recovery orders under the Money Laundering and Proceeds of Crime Act.

Conclusion

Our criminal law seems wide enough to cover the various forms that corruption can take.  It is not our criminal law which is inadequate to combat the grand and petty corruption that is widespread in Zimbabwe.  The problem is rather that the institutions and systems that are supposed to enforce the criminal law have proved inadequate in the face of lack of transparency and accountability in government, poor administration, inadequate checks and controls and ineffective policing.  Above all there is an unwillingness on the part of our leaders to, not only speak out against corruption, but to also take incisive action against corruption and also to lead by example.  In particular grand corruption in high places needs to be tackled from the top.  It is this that impacts most to the detriment of the national economy and the public welfare.

We shall examine these inadequacies in subsequent Economic Governance Watches.

To be Continued in Part 3

 

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2020