Mchenga, Shonga justify abuse of office clause removal

Mchenga, Shonga justify abuse of office clause removal
By Ernest Chanda
Fri 15 Oct. 2010, 04:00 CAT

ATTORNEY General Abyud Shonga has revealed that the government proposed to remove the abuse of office offence from the Anti Corruption Commission (ACC) Act because it has existed unconstitutionally. And Director of Public Prosecutions (DPP) Chalwe Mchenga has supported the removal of the offence from the Anti Corruption bill, saying it does not promote justice in its current form.

Appearing before the Parliamentary Committee on Legal Affairs, Governance, Human Rights and Gender Matters on Wednesday, Shonga contended that the law worked better under a one party State where leaders were not allowed to own businesses. He argued that under multipartyism, it would not be fair to maintain such a law because public officers are allowed to own and run businesses.

When asked by committee chairperson Jack Mwiimbu if he was of the view that the abuse of office offence has existed unconstitutionally, Shonga answered in the affirmative.

“I prefer not to get boxed in like that, but I my answer that it is unconstitutional when you look at it vis-a-vis the Constitution. I can’t come to a conclusion, any conclusion, except to agree that this provision may actually be unconstitutional.

As to whether that is the main reason for removing it, it’s safer to say it’s one of the reasons for removal, albeit a major reason for removal. This provision was logical in the context of socialism and the one party state but has since become redundant since the advent of the liberalisation of the economy,” Shonga said.

“The provision is additionally discriminatory as it ignores private sector corruption, which is also a reality. For me the problem here is that in this time and age, with this progressive and liberalised economy; liberalised on account of good policies that honourable members some of whom are sitting here have passed in that August House, things have changed. And public officers are allowed to run businesses; this is a direct contradiction.

I would go further to say that it is arguable, I think with merit, that the requirement for a person affected by section 37 (1) to come across and be compelled to testify about certain issues… what then about the fundamental constitutional issues that we know accused persons are allowed? My view is that I would support the removal of section 37 because I don’t think that a bad, wrong, illegal, unconducive environment is created by its removal. In fact, on the contrary, we are helping to cure the document.”

Shonga claimed that the government’s intention of removing section 37 from the ACC Act was in good faith. When told that the Law Association of Zambia in its submission concluded by saying that it would be dangerous to remove the abuse of office offence from the laws, Shonga disagreed strongly.

“O, that is what LAZ is saying? I must with greatest respect disagree with their conclusion. That is my comment, especially that section 99, I think, of the Penal Code crystalises the offence created in 37 (1). It’s there, it’s preserved on our statutes,” he argued.

When it was again mentioned to him that most stakeholders had submitted against the removal of the offence, Shonga expressed surprise.

“I would be surprised with such a submission. Then again, where there are 10 lawyers, there are 10 opinions. My approach is to look at it the way I understand vis-a-vis the Constitution which protects me in the event that I am accused of an offence. So, in relation to this, I would have some difficulties there,” submitted Shonga.

Earlier, Ministry of Justice permanent secretary in charge of administration Annie Sitali explained further on the alleged unconstitutionality of the abuse of office offence.

She argued that while the Constitution allowed an accused person to remain silent if they wished, section 37 of the ACC Act compelled them to talk, failure to which they would be presumed guilty.

Asked by Mwiimbu if the committee should recommend to Parliament that it was the government’s submission that section 37 of the ACC Act is unconstitutional, Sitali answered in the affirmative.

“You know certain things have crept into our statute books, and without a challenge we get by with it. We are stating here very strongly that Section 37, to the extent that it requires an accused person to give a satisfactory explanation to the court or else he will be considered guilty, to that extent it is actually unconstitutional.

And the issue of the accused having a burden to prove particular facts is not quite the same as where you are saying, ‘give us facts that are satisfactory or else you will be considered guilty,’ because we have to look at the factors. A person is presumed innocent until they’re found guilty. And these are issues we can’t run away from. And we still feel very strongly that this provision in its current form is unconstitutional,” Sitali contended.

She argued that there were other provisions in the Penal Code that catered for the abuse of office offence.

“So we are saying there’s a provision in the Penal Code which deals with abuse of office in relation to corruption. If an accused person chooses to remain silent, you can’t compel them.

And this provision section 37 of the ACC Act is saying, ‘if those that are accusing you are saying you are guilty, you must give an explanation to the satisfaction of the court or else you will be jailed’. That is the difficulty we have. And if you look at the provisions that we have, we have consistently said we have the Penal Code provision for abuse of office which fits well with the constitutional provisions,” said Sitali.

“We have clause 21, we have clause 33, all of which are dealing with abuse of authority of office. So we are saying what we have difficulties with are those provisions that are actually taking away the constitutional protection of a person as far as security before the law is concerned. So we feel that you cannot maintain this current provision in its current form because it’s unconstitutional, and that’s why it has been taken out.”

And Mchenga, who indicated that he could only provide his opinion rather than the rationale for removing the offence, submitted that the country’s poor record system made it difficult for accused person to provide relevant evidence before the court under the provisions of section 37.

“Now as we interacted, one issue that came up is that, fine, if you had a law like that and you required a public official to explain if you have a situation where they have got property that is not commensurate to their income and you request them to make an explanation, one of the challenges you face is that we have a system that has got poor record keeping in this country. Even a person who purchases a thing, after two, three years you go back to the seller, the seller does not keep record,” Mchenga said.

“And the situation we find ourselves in is that if a person is charged with an offence under that section section 37, because the current Anti Corruption Commission Act says past and present income.

And if a person is charged with an offence, for example, and he says ‘I’ve been building a house for the last 10 years, what is expected is for him to bring proof about how he’s got these materials. But it’s common knowledge that our record keeping is very poor, and it’s unlikely that if you request a person to go and bring that evidence of his purchases he will not find it.

So what was coming out is that the balance is heaped against the accused person. It’s most unlikely for the person to be able to explain, even those who maintain genuine income. So, those were the arguments when the bill was being discussed in connection with section 37.”

Mchenga said the 1996 ACC Act did not introduce the abuse of office offence, saying it was carried over from the 1980 Act.

And Mchenga submitted that in his six year tenure as DPP, no one had ever been prosecuted and convicted for having property not commensurate to their income.

“When I say no one has been prosecuted, I’m not saying I’ve not authorised any one. I've not received a docket recommending that anyone should be prosecuted for that offence. Now that being the case, I would say that the argument is neither here nor there because no one has been prosecuted for that offence. And having said that, I'm not aware of anyone who has been convicted for this offence," submitted Mchenga.

"May be before I proceed, the people who have been prosecuted and convicted for abuse of authority of office, it's not in relation to having property. It's in relation to using their positions to gain property. That is the clarification I need to make.

That's why at the beginning I indicated that there are two links; there's one link that involves having property or living a lifestyle beyond their means. The other link relates to a person abusing his position to get property, give contracts. The part that relates to a person abusing his position to gain property and give business is the one for which we have had prosecutions."