Thursday, November 04, 2010

Who are they protecting from the abuse of office offence?

Who are they protecting from the abuse of office offence?
By The Post
Wed 03 Nov. 2010, 04:00 CAT

When people run out of reasonable explanations for their wrong actions, they resort to accusing others of not understanding or being ignorant. This is what Rupiah Banda is doing as he tries to defend the indefensible. It is clear that his government has decided that they cannot live with the rigorous requirements of section 37 of the Anti Corruption Commission Act.

It scares them. We have no doubt that they know that they cannot survive the scrutiny of section 37. We say this because it is not normal for any government to fight for the right to acquire for themselves, in their private capacities, property, wealth or advantage by abusing their offices. A normal government would be ashamed by the very sound of what they are championing. How could they face their people, most of whom live on less than a dollar a day, and be able to say ‘give us the right to use our offices to acquire all kinds of riches without being accountable?’ But this is what Rupiah is doing.

We do not believe that Rupiah and his minions are fighting for the lofty principles. They are not fighting for the rights of suspects in criminal matters. If they were interested in the rights of suspects, they would be in a hurry to deal with the many problems that bedevil our criminal justice system. But clearly, this effort that they are putting up is an act of self-preservation. They know that they are not able to explain a lot of the wealth that they have acquired in a very short time. This is why they are scared of section 37.

Section 37 prohibits public officers from acquiring wealth, property or advantage which they could not explain and link to lawful earnings. In other words, if somebody is found to have more wealth than they could have possibly earned legitimately, and they are public officers, they are presumed to have abused their office. And that is an offence for which they could be sent to jail. The reason for this is very clear.

Corruption, like prostitution, is an offence that involves satisfied participants. At the end of the corrupt encounter, the participants go away happy with their bargain. One half of the transaction receives the bribe whilst the other side receives the contract or other accommodation that they were looking for from government.

In those circumstances, there is rarely anybody to report the corruption. And in many instances, it is very difficult to find the evidence of corruption. This is why those who wrote this law decided to criminalise the consequences of corruption over and above criminalising the corruption itself. In other words, if you cannot catch the murderer but you find a person with the blood of the murder victim, chances are you have found the perpetrator of the crime.

If you use this analogue to understand why illicit enrichment must be a criminal offence, you will understand why the framers of the Anti Corruption Commission Act did it that way. They were merely following international best practice in combating corruption and other crimes. If you cannot detect where the crime is taking place but you see the products of the crime, you would have to be foolish or corrupt to say 'let the product of the corruption be retained by the corrupt because we cannot see where the corruption took place'. This kind of thinking is absurd and only criminals can subscribe to it.

What they are suggesting is not very different from saying that if you found somebody walking around with the heart of someone who has been murdered, you should not prosecute them for murder because no one saw them kill and extract the heart from the body. This kind of reasoning can never be accepted by decent people. And anyone who advances that type of reasoning is not decent.

We have said this before but we should say it again; Rupiah was elected to uphold the law and not to join lawbreakers in raping our state coffers. To suggest that those who are calling on his government to protect our meagre resources from abuse are ignorant is to insult the intelligence of our people. Our people know that anyone who is engaged in lawful business activities should be able to explain their property and wealth. Rupiah yesterday joined the lies of his government by suggesting that our people should not expect public servants to explain their property because many would not be able to explain. Why should a person who has laboured to build his house or buy a car from legitimately earned income fail to explain?

If somebody has been rearing chickens, they should be able to say ‘I have been keeping 100 chickens and I have made K2 million per month.’ They can go on to say ‘I have used that K2 million to buy a non-runner motor vehicle at a Fred Joe auction, which I have built into this nice-looking car. Honest people will never fail to explain their property or wealth.

What Rupiah is concerned about is the failure to explain proceeds of corruption. And it is understandable because in the last two years, Rupiah, his family and friends have become disproportionately richer than their earned income can explain. Those who are on economic ARVs have suddenly recovered and become very wealthy individuals. It is very difficult to find a poor person in Rupiah’s immediate family. How has this been possible?

It is the use, or rather abuse, of Rupiah’s office that has created all this wealth for himself, his family and friends. There is no other reasonable explanation Rupiah can give for the quick rise to wealth and comfort of his family and his inner circle.
It is unfortunate that in trying to justify the nonsense that they are peddling, they have no shame in telling obvious lies. Rupiah yesterday also said that the removal of section 37 was to bring the Anti Corruption Commission Act into conformity with the democratic dispensation.

Rupiah told our people that section 37 was a relic of the one party state, which he was privileged to serve. According to him, this law was okay under the one -party state where people were being asked to explain where the car they drove came from or how they managed to live in the house they were living in. The only problem with Rupiah’s propaganda is that section 37 was introduced in 1996. The Act that they want to repeal now is a 1996 Act, a product of the Frederick Chiluba regime. It has absolutely nothing to do with the one-party state that disappeared in 1991.

But this is what happens when people want to mislead. They start coming up with all sorts of explanations even if they don’t make sense.
We saw this same behaviour from George Kunda when he addressed Parliament to push for the removal of section 37.

His conduct was one of intellectual dishonesty. George told Parliament that the reason they want to remove section 37 is because it requires a person to explain himself or herself when he or she has been found with a case to answer. But George, as a lawyer, should know that every suspect who is tried and is found with a case to answer is required to give their side of the story. At that point, the burden shifts.

If you do not explain how you find yourself in the situation where you are, the court will find you guilty of the offence. But that is not to say that you are obliged to speak. One of the rights that an accused retains when he is put on his defence is to remain quiet. But it is a well known fact that silence in the face of evidence that suggests that you have done something wrong has got consequences. The choice is for the suspect or the person accused of the crime. If you are found with assets which you cannot explain and the prosecution shows that it is connected to corruption and cannot be explained by legitimate earnings, why should you not be convicted?

George also tried to change their explanation for opposing section 37. Previously, they had been saying that what was wrong with section 37 was that it infringed the presumption of innocence, which is to say that it tended to presume people guilty of an offence before they were tried. After we showed them that they were lying, that in fact the Constitution provides for this kind of law, they have changed. Now George is trying to say that it’s not article 18 (2)a that is being infringed but 18 (7). Article 18 (7) provides a suspect with the right to silence. There is no argument about that. But section 37 does not take away anyone’s right to silence. If you are found with someone’s heart and you choose to remain silent, you will be convicted of the murder. If you are found with stolen property and you elect to remain silent, you will be convicted for possessing stolen property. This is elementary law. George should not try to mislead. Anyway, it will not be long before our people know exactly why we are enacting such laws and who they are trying to protect.

As for Rupiah, thinking that he is the only one who knows what is good for our people is not going to take him anywhere. If anything, it will land him in a ditch. The Bible says that in the multitude of counsel, there is safety. Rupiah would do well to seek safety in the multitude of counsel that has come from the Law Association of Zambia, the Council of Churches in Zambia, the Catholic Church, the Anglican Church and many other well-meaning civil society organisations and individual Zambians of goodwill. Trying to be smart without being clever will take them nowhere.



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