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Nothing warrants removal of abuse of office - law lecturer

Nothing warrants removal of abuse of office - law lecturer
By Fynold Mufwaafwi
Wed 27 Oct. 2010, 13:30 CAT

There is nothing unconstitutional about section 37 of the ACC Act to warrant its removal, Zambian Open University constitutional law lecturer Mulenga Besa has argued.

And Besa has observed that the Director General of the Anti Corruption Commission is better-placed to rein in on abuse of office offences than the institution of Director of Public Prosecutions (DPP), which he regretted had to a large extent lost its nobility as a custodian of the people’s trust.

Reacting to Attorney General Abyud Shonga and justice ministry permanent secretary Annie Sitali’s claim that the government proposed for the removal of the abuse of office offence from the Anti Corruption Commission (ACC) Act because the clause had existed unconstitutionally, Besa observed that the duo had conveniently elected not to state the specific article(s) of the Constitution which the embattled clause had allegedly been in conflict with.

“An evaluation of the provisions of the Act and what the Constitution of Zambia provides will reveal that there is indeed nothing unconstitutional with section 37 of the ACC Act,” he contended. “Rather, what the section, it may be argued, has done is to cut to almost zero the commission of the offence provided under the section; hence perhaps, even explaining why the DPP has not prosecuted any offence arising from section 37 as he (Mchenga) contended in justifying its removal from the Act.”

Besa noted that the particular constitutional provisions Shonga and Sitali were attempting to lean on were Article 18 clause (2), which provides for the presumption of innocence until proven guilty and clause (7), which prohibits that a person tried for a criminal offence be compelled to give evidence at the trial.

He argued that the requirement for a public officer found wanting under section 37(1) of the ACC Act to give a reasonable explanation as to how they came to be of a status not commensurate with their present and past official income would only be perceived to be conflicting with the Constitution if Article 18(7) were read in isolation from other important Articles and clauses.

“If Article 18 of the Constitution ended with clause (7), then section 37(2) of the ACC Act would be deemed unconstitutional, and it would be a matter of time before the courts adjudged it thus,” noted Besa, adding: “However, there are further provisions, particularly clause (12) of Article 18 which... provides as follows: ‘(12) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of - (a) paragraph (a) of clause (2) to the extent that it is shown that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts’.”

He stated that while Article 18(2) of the Constitution concerned itself with innocence until proven guilty, the same Constitution recognised that instances may arise where the only way certain facts would be established was by allowing accused persons to give some reasonable explanations on some circumstances of the fact.

“Is it not just and fair in the interest of the public as a whole that people entrusted with public duties and cardinal decision-making positions should explain to the people how they get to their positions when, in fact, their remunerations would not be adequate to sustain the new lavish lifestyle which they may only have as a result of abusing their positions in the public service?” Besa wondered.

He advised that recent happenings and revelations in the Ministry of Health should serve as a guiding principle “as the people and their government consider serious issues which may have telling ramifications on the political and economic wellbeing of the country.”

And on Mchenga’s support for the removal of the offence from the Anti Corruption Act on the premise that “it does not promote justice in its current form”, Besa noted that it was unlikely for the institution of the DPP to effectively prosecute offences under section 99 of the Penal Code. He said this was because of its compromised autonomy and apparent susceptibility, in practice, to the whims of the appointing authority, especially over offences in which senior government officials were involved.

He stated that while the Constitution provides for the autonomy of the DPP in the exercise of his functions, the fact that he was an appointee of the President and removable under Article 44 without the need to follow any procedure, but simply at the discretion of the President, to a large extent eroded his independence and autonomy.

“It has been the view that office holders currently and in the past have been used by their appointing authorities to advance agendas that may not necessarily be in the interest of the people on whose behalf they basically are appointed to work,” Besa stated.

He explained that whereas the President had all the powers of discretion to disappoint the DPP, section 17 of the ACC Act in part required the consent of the people through a parliamentary vote with a two-thirds majority before the Director General of the Commission could be removed.

“When Parliament has voted, the ACC Act also requires that the vote of Parliament is communicated to the Chief Justice, who then appoints a tribunal to investigate the allegations against the ACC Director General and report its findings to the President and Parliament. Only then would the Director General actually be removed from office,” Besa added.

He contended that the level at which the DPP would administer section 99 of the Penal Code may, therefore, not be the same as the Director General of the ACC would administer the ACC Act, adding that the offences said to be created under section 99 of the Penal Code would be much more effectively fought under section 37 of the ACC Act than under section 99 of the Penal Code.

On the difficulty of record keeping as Mchenga’s argument for advocating the removal of the abuse of office offence, Besa wondered how a person who purchases a house or motor vehicle would fail to produce some record of such property in the event that they needed to establish true ownership thereof.

Besa wished that the government could simply heed the people’s objection to the removal of the offence in question, warning that the ordinary people would be the hardest hit by the effects of corruption which may subsequently soar from the already high levels.

Meanwhile Besa noted that declaration of statutes as being unconstitutional was a preserve of the judiciary, and not the executive, after a challenge of a statute’s contents by any person in the courts of law.

Appearing before the Parliamentary committee on Legal Affairs, Governance, Human Rights and Gender Matters recently, Shonga said he was of the view that the abuse of office offence had existed unconstitutionally.

“I prefer not to get boxed in like that, but I may 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,” said Shonga.

Shonga's sentiments were endorsed by Sitali and Mchenga, who were appearing with him before the same parliamentary committee.

Labels: ABYUDA SHONGA, ACC, MULENGA BESA

posted by MrK @ 2:17 PM