Maravi

Govt removes‘abuse of office’ from ACC Act

Govt removes‘abuse of office’ from ACC Act
By Ernest Chanda
Sat 25 Sep. 2010, 04:01 CAT

THE government has removed the abuse of office offence from the revised Anti Corruption Commission (ACC) Act.

According to the National Assembly bill number 41 of 2010 presented to Parliament yesterday for first reading by acting leader of government business Mkhondo Lungu, Section 37 which catered for the offence has now been replaced by Concealment of offence.

The bill states that a person commits an offence if they intend to defraud or to conceal the commission of an offence under this part or to obstruct an officer in the investigation of any offence.

“(a) Destroys, alters, mutilates or falsifies any book, document, valuable security, account, computer system, disk, computer printout or other electronic device which belongs to or is in the possession of or has been received by that person or that person’s employer or any entry in such book, document, account or electronic device, or is privy to any such act,” the bill reads. “(b) Makes or is privy to the making of any false entry in any book, document, account or electronic device; or (c) Omits or is privy to the omission of any information from any book, document, account or electronic device.”

However, the bill makes mention of Corrupt use of official power in Section 21 which states that: (1) A public officer who, being concerned with any matter or transaction falling within, or connected with, that public officer’s jurisdiction, powers, duties or functions, corruptly solicits, accepts or obtains, or agrees to accept or attempts to receive or obtain for oneself or for any other person any gratification in relation to such matter or transaction, commits an offence.

(2) A person who, being concerned with any matter or transaction falling within the scope of authority, or connected with the jurisdiction, powers, duties or functions of any public officer, by oneself, or by, or in conjunction with, any other person, corruptly gives, promises or offers any gratification, whether directly or indirectly, to such public officer either for oneself or for any other person commits an offence.”

But in the current ACC Act, section 37 Chapter 91 of the laws of Zambia, under the sub-heading Possession of unexplained property, states as follows: (1) The Director-General, the Deputy Director-General or any officer of the Commission authorised in writing by the Director-General may investigate any public officer where there are reasonable grounds to believe that such public officer-

(a) has abused or misused his office position or authority to obtain property, wealth, advantage or profit directly or indirectly for himself or any other person;

(b) maintains a standard of living above that which is commensurate with his present or past official emoluments;

(c) is in control or possession of pecuniary resources or property disproportionate to his present or past official emoluments; or

(d) is in receipt of the benefit of any services which he may reasonably be suspected of having received corruptly or in circumstances which amount to an offence under this Act.

(2) Any public officer who, after due investigation carried out under subsection (1), is found to-

(a) have misused or abused his office, position, or authority to obtain advantage, wealth, property or profit directly or indirectly;

(b) maintain a standard of living above which is commensurate with his present or past official emoluments;

(c) be in control or possession of pecuniary resources or property disproportionate to his present or past official emoluments; or

(d) be in receipt of the benefit of any services which he may reasonably be suspected of having received corruptly or in circumstances which amount to an offence under this Act; shall, unless he gives a reasonable explanation, be charged with having, or having had under his control or in his possession of pecuniary resources or property reasonably suspected of having been corruptly acquired, or having misused or abused his office, as the case may be, and shall, unless he gives a satisfactory explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control or into his possession or, as the case may be, how he came to enjoy the benefit of such services, be guilty of an offence.

(3) Where a court is satisfied in proceedings for an offence under subsection

(2) that, having regard to the closeness of his relationship to the accused and to other relevant circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused, or acquired such pecuniary resources or property as a gift, or loan without adequate consideration, from the accused, such pecuniary resources or property shall, in the absence of a satisfactory explanation by or on behalf of the accused be deemed to have been under the control or in the possession of the accused.

(4) In this section, "official emoluments" include a pension, gratuity or other terminal benefits.”

On July 2 this year in Parliament, Vice-President George Kunda threatened Katuba MMD member of parliament Jonas Shakafuswa with imprisonment when the latter questioned the government’s motive for removing the offence of abuse of office from the revised ACC.

During the Vice-President’s question and answer session, Shakafuswa sought to know the motive behind such a decision by the government.

“I’m aware that section 37 which deals with abuse of office has been left out in the revised ACC Act, what is the reason?” Shakafuswa asked.

In response, Vice-President Kunda warned Shakafuswa that the information he disclosed to the House was classified.

“I don’t know where the MP got that information. But if he has access to classified information, it is a criminal offence because that Bill has not been tabled before Parliament. We are revising the law against corruption, taking into account the past experiences in reforming the law. Don’t prejudge this before you even see the Bill,” said Vice-President Kunda.

Later, works and supply minister Mike Mulongoti defended the move, saying the offence of abuse of office had proved harmful to the management process.

Mulongoti said people were now afraid to make decisions for fear of being criminalised on account of the same clause.

Justice deputy minister Todd Chilembo also justified the intended removal, saying public officers had extra sources of income.

He said the economic situation had changed and workers were earning other incomes by engaging in various economic activities.

“Looking at the changed economic situation where people, even civil servants, have other sources of income, it will be wrong to have such a law. The Penal Code, which is the principle law, has various provisions to deal with such offences,” said Chilembo.

Labels: ACC, CORRUPTION, MKHONDO LUNGU

posted by MrK @ 5:56 PM