Nkole wants abuse of office offence back
Nkole wants abuse of office offence backBy Kombe Chimpinde
Sun 08 Jan. 2012, 14:00 CAT
MAXWELL Nkole says the abuse of office clause would have caught up with the Rupiah Banda regime had it not been removed.
In an interview, Nkole who is home affairs permanent secretary and former chairman of the dissolved Task Force on Corruption, said the current investigations on the plunder of resources under Banda were slow but careful because of the nature of corruption that took place and the removal of the abuse of office clause.
"It is no wonder the previous regime decided to repeal it because they knew that it would catch up with them if it remained on the statute," he said.
Nkole said there was need to re-instate the abuse of office clause abolished in Banda's regime in order to successfully prosecute the corruption they perpetrated.
He said the on-going investigations had adversely been affected following the repeal of the Anti Corruption (ACC) Act which saw the abolishment of Section 37.
"They (investigative wings) are proceeding slowly but carefully because of the nature of corruption cases. It should be understood, however, that investigations and strategies have been affected adversely following the repeal of the Anti Corruption Act," he said.
Nkole said the absence of Section 37 had a negative impact on the capacity to bring some of the cases to courts of law.
"I can say the earlier Parliament sits down to install that provision, the better. That particular provision was so appropriate an instrument of the law that not only made it easier to prosecute these cases but also to create a deterrent atmosphere on the commission of offence," he said.
"I strongly feel that provision must be re-instated quickly so that most of these cases of wrongdoing and abuses that investigators are working on can be processed."
Nkole assured that once installed through Parliament, it would still be used to prosecute cases committed within the period between the time it was removed and the time when it is restored.
"There is nothing like rigidity of the law where the law is like this and will remain that way. Laws change with political administration. The removal of the abuse of office clause mid way for three years will not make the crimes committed during the time it was removed lawful. They will still be prosecuted," he said.
"The argument in the courts of law is that the (clause) was removed in order (for MMD government) to hide their own criminality and we shall argue that and the courts of law will find that there was no reason for removing that law. That in itself is a wrong and attracts punishment. You cannot go on rampage of abusing office only because you think you have taken the law that prohibited it and think you will get away with it. The stupidity of law is that it will still catch up with you because you were not doing it with utmost good intention."
And Nkole said that the investigations in some cases may be dragging before the public start seeing results due to limitations in its operations.
"Some of these investigations are taking investigators to places outside Zambia and it is the same complication of having to work in foreign jurisdiction before we can get evidence that takes time. It is possible that when you delay, evidence may be dealt with. This was the result with the (Frederick Chiluba's) London cases last time, because there was a scheme there to destroy documentary cases lying in London. This time around we know are very cautious," he said.
Nkole also called for donor assistance in the area of fighting corruption.
"The support exhibited by cooperating partners on the fight against corruption should be revisited. They (donors) should consider assisting this government one more time," he said.
"Investigations are generally expensive all around the world. You cannot place monetary value to the good prosecutions can yield."
In 2010, former Attorney General Abyud Shonga argued that the government proposed to remove the abuse of office offence from the Anti Corruption Commission (ACC) Act because it had existed unconstitutionally.
Appearing before the Parliamentary Committee on Legal Affairs, Governance, Human Rights and Gender Matters in 2010, 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 were 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 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," said Shonga.
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.
"Oh, 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.
And former Director of Public Prosecutions (DPP) Chalwe Mchenga supported the removal of the offence from the Anti Corruption bill, saying it did not promote justice in its current form.
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.
On 14 October 2010, Parliament passed the Anti Corruption bill that sought to remove the offence of abuse of office from the 1996 ACC Act.
Then vice-president George Kunda attacked LAZ for submitting against the removal of the offence.
The House went for a division with 54 voting in favour of the bill while 30 voted against and 3 abstained.
And after then deputy speaker Mutale Nalumango officially announced the results, most MMD members celebrated their victory.
Labels: ACC, MAXWELL NKOLE
posted by MrK @ 7:44 PM
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