By The Post
Sun 10 Oct. 2010, 04:00 CAT
No decent government could fight for the right to be corrupt and to abuse the power people have given it to utilise for the benefit of society. But this is what Rupiah Banda’s government, through the recklessness of George Kunda, is doing as it removes the offence of abuse of office from the Anti Corruption Commission Act.
It is not normal for government leaders to demand the right to acquire wealth without being accountable for it. We agree with Professor Michelo Hansungule that the government has not given any sensible rationale for removing the law against abuse of office.
While it is clear that the public are disturbed by this development, the government is quiet about the reasoning behind the removal of this provision. We have said before that this is a fundamental policy shift which cannot be carried through without explanation to our people. Can George and Rupiah tell our people why they want to be able to abuse their offices without being held to account?
We say this because this is what their actions amount to. Anyway, their dishonesty and failure to be open with our people about their reasons for removing this provision from our law will soon become clear. Our people will know why they are desperate to change this law.
It is not the first time that we are seeing such irrational behaviour from those who are entrusted with power in our country. Frederick Chiluba did the same. As somebody remarked during the anti-third term campaign, Chiluba knew that he had messed himself so badly that he could not afford to leave the presidency.
If he left the presidency, as has happened now, the mess that he was in would be clear for all to see. His reaction was to try and amend our Constitution to allow himself an illegitimate third term in office. Many of our people were wondering why Chiluba was so determined to stay in power.
And we told them then that it was because of the crimes he had committed that he was afraid to leave the presidency. We have been proved right. Chiluba is a thief who tried to protect himself by clinging to power. There are some similarities in what Chiluba tried to do and what Rupiah and George are doing today. We agree with Prof Hansungule that in the absence of a logical explanation, we are left to conclude that their behaviour is an act in self-defence.
This, however, is an exercise in futility. If they have abused their offices, they will not be saved by an amendment to the law. What will apply to them is the law that was in force at the time that they are alleged to have committed the offences. It is understandable that they are not able to come to the public and tell our people why they want to remove this law. This is because their manoeuvre is immoral and unjustified.
It can never be defended by anybody who has respect for public property. It is not difficult to discern why the offence of abuse of office as it appears in the Anti Corruption Commission Act is criminalised. All one has to do is read the Act, and no explanation is required for our people to understand what the law is trying to achieve. The people that run our government exercise a lot of power on our behalf, including the utilisation of resources on various projects.
This offence seeks to ensure that these people do not use their positions to acquire wealth at the expense of our people. If this is allowed, we all know what is going to happen. We have seen it before. Under Chiluba, people like Xavier Chungu, his chief of intelligence, were walking around looking for projects to do.
The problem with those projects is not about whether or not they were bad or good. The problem was that their interest was not doing the projects; it was making money for themselves. The projects were therefore just a pretext and an excuse for diverting public resources into their pockets.
This was because they were sure no one was going to question them about their primitive accumulation of wealth and their newly acquired expensive tastes and conspicuous consumption. But when they left power, they found this law waiting for them, and many of them have been convicted.
As Prof Hansungule has observed, why should a law which has been so successful in arresting the rampant corruption and abuse of public office be changed? There are some of our people who might not know what this law says. This is what it says under Possession of unexplained property:
“37.
(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.”
This law is very clear. It states that if a person has abused his office in order to obtain property, wealth, advantage or profit directly or indirectly, is guilty of an offence. What is wrong with the law stopping a public officer from abusing his office in order to obtain some illicit advantage? Why is Rupiah uncomfortable with this law?
This law also says it is a criminal offence for a public officer to maintain a standard of living which is above his legally earned income. Again, what is wrong with the law requiring public officers to live in accordance with their legally earned income?
What Rupiah and George are telling our people is that they don’t want this law. What this means is that for Rupiah and George, it is okay for public officers to live above their disclosed incomes and indeed it is okay for them to possess unearned or even illegally obtained income. What kind of nonsense is this?
This law also makes it a criminal offence for a public officer to be found in possession of money or property disproportionate to their present or past disclosed income. In other words, a person should not have more money or property than they can show to have legally acquired. Again, the simple question is: what is wrong with this requirement?
Rupiah and George would like to be able to control resources which are above their present or past known incomes. This is not the mindset of honest people. Only criminals want to hide the source of their income. This law also makes it a criminal offence for a public officer to receive any service or benefit from any source which suggests corruption.
Again, what is wrong with the law stopping public officers from receiving favours from contractors and other service providers to the government in circumstances that suggest corruption? Why is Rupiah determined to remove this law from our statute books? What is it that he has done? Our advice to him is: keep proper record of everything that you are doing because whether or not you change the law, you will have to explain the sources of the wealth that you are enjoying.
Rupiah and George should know that this is not just about themselves. Even their families are covered. Hiding resources in children and other relatives or friends will not help them. Creating all sorts of silly trusts will not help them. The law will visit them.
Our people must continue to demand an explanation from this corrupt government for its desperation to remove the offence of abuse of office from the Anti Corruption Commission Act.
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