The Zimbabwe Anti-Corruption Commission (ZACC) is an independent commission created to combat corruption and crime. Its mandate extends to the investigation of economic crime and encompasses the role of publicizing anti-corruption campaigns and preventative measures. The Zimbabwe Anti-Corruption Commission was established on the 8th of September 2005 when His Excellency, the President of the Republic of Zimbabwe swore in the first commissioners.
The establishment of ZACC is conducted in accordance to the Constitution of Zimbabwe and the Anti-Corruption Commission Act which outline ZACC’s powers, functions and objectives. It is one of the two Chapter 13 institutions specifically mandated ‘to combat crime and corruption’.
ZACC is administered under the Office of the President and Cabinet. In the past it was under the Ministry of Home Affairs.
Establishment of ZACC
ZACC was originally established as a constitutional commission in 2009 by the 19th amendment to the previous (Lancaster House) Constitution. Its establishment was only formal, however, because no members were appointed until it was re-established in 2013 by section 254 of the present Constitution.
Functions of ZACC Under the Constitution
Section 255 of the present Constitution gives ZACC the following functions:
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- To investigate and expose cases of corruption in the public and private sectors.
- To combat corruption, theft, misappropriation, abuse of power and other improper conduct in the public and private sectors.
- To direct the Commissioner-General of Police to investigate cases of suspected corruption and to report to the Commission on the results of any such investigation.
- To refer matters to the National Prosecuting Authority for prosecution.
Media key in fight against corruption:ZACC
Several inferences can be drawn from the way the Constitution expresses these functions:
- ZACC can investigate and combat corruption and other improper conduct in the private sector as well as in Government.
- Theft, misappropriation and abuse of power do not necessarily constitute corruption (otherwise they would not have been mentioned separately).
- Even though they may not be the same as corruption, ZACC can combat theft, misappropriation and abuse of power.
- ZACC can also combat “improper conduct”, which is not necessarily criminal conduct.
- ZACC can instruct the Police to investigate cases of corruption; it does not have to do the investigations itself.
On the other hand, ZACC does not have power to prosecute criminal cases, but can only refer cases to the NPA for prosecution. One further point is that section 342(2) of the Constitution gives all constitutional bodies, including ZACC, “all powers necessary for them to fulfil their objectives and exercise their functions.”
Another point is that section 321(1) of the Constitution states that an Act of Parliament may confer additional functions on constitutional commissions. Parliament did this for ZACC when it enacted the Anti-Corruption Commission Act in 2004.
Functions of ZACC Under the Anti-Corruption Commission Act
Section 11 of the Anti-Corruption Commission Act sets out what it calls “the objects” of ZACC [they are really functions]. The first of these is: “to promote the investigation of serious cases of corruption and fraud”. This suggests that ZACC should concentrate on serious cases, not petty ones. Note, incidentally, that the objective mentions corruption and fraud separately, indicating that Parliament did not regard all cases of fraud as necessarily involving corruption.
Section 12 of the Act gives ZACC additional functions, in particular the monitoring of procurement systems of public and private institutions. Procurement in Zimbabwe and elsewhere is a particularly fertile field for corruption so it is little wonder that the Act mentions procurement specifically.
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The Schedule to the Act gives ZACC the following powers, amongst others:
- To recommend that the Police arrest and detain people suspected of committing offences relating to corruption as well as a long list of disparate offences such as money-laundering, possession and dealing in dangerous drugs (other than cannabis), illegally exporting grain, contravening the Exchange Control Regulations, and stock theft.
- To obtain search warrants.
- To enter premises and require people there to answer questions about crimes related to corruption.
- Through the National Prosecuting Authority [the NPA], to seek court orders for the confiscation of proceeds of corruption.
It should be noted that in this outline of ZACC’s constitutional and statutory functions we have not mentioned ZACC’s important advisory and educational functions. Both the Constitution and the Anti-Corruption Commission Act give ZACC powers to make recommendations on ways to enhance integrity and accountability in the public and private sectors, to promote public awareness about corruption and its harmful effects, and to assist in the formulation of systems and procedures to prevent corruption.
Additional Power of Arrest Given to ZACC Officers
ZACC officers have the same power of arrest as police officers. They were given this power by SI 143 of 2019, which declared them to be peace officers for the purposes of the Criminal Procedure and Evidence Act [CP&E Act].
The National Prosecuting Authority
The National Prosecuting Authority is one of two institutions that are mandated to fight corruption in Zimbabwe. In terms of chapter 13 of the Constitution of Zimbabwe, The Zimbabwe Anti-Corruption Commission and The National Prosecuting Authority are the institutions mandated to fight corruption. The establishment and functions of The National Prosecuting Authority are provided for in terms of section 258 of the Constitution of Zimbabwe.
Section 259 of the Constitution provides for the establishment of the office of the Prosecutor-General and other officers. The Prosecutor-General is the head of the National Prosecuting Authority and is appointed by the President. The Prosecutor-General must be a person qualified for appointment as a judge of the Supreme Court and his or her term of office is a period of six years which is renewable for another six years. The Prosecutor-General must take the oath of office, before the President or a person authorised by the President before taking office. The provisions relating to the removal of a judge from office apply to the removal of the Prosecutor-General from office.
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The Prosecutor General bears the onus to institute and undertake criminal prosecutions on behalf of the State through the National Prosecuting Authority. The Prosecutors prosecute in the name of the Prosecutor General and must discharge any functions that are necessary or incidental to such prosecutions.
Section 259 of the Constitution provides that The Prosecutor-General may direct the Commissioner-General of Police to investigate and report to him or her on anything which, in the Prosecutor-General’s opinion, relates to an offence or alleged or suspected offence, and the Commissioner-General of Police must comply with that direction.
Section 260 provides that Prosecutor-General is independent and is not subject to the direction or control of anyone and must exercise his or her functions impartially and without fear, favour, prejudice or bias. The Prosecutor-General must formulate and publicly disclose to the general principles by which he or she decides whether and how to institute and conduct criminal proceedings. This is in terms of section 260 of the Constitution.
The National Prosecuting Authority Board assists the Prosecutor-General to manage the affairs of the National Prosecuting Authority. The Board is responsible for the employment of Prosecutors and any other officers to assist the Prosecutor General in the exercise of his or her functions. The Prosecutors and officers so employed must be independent and impartial and subject only to the law and to the direction and control of the Prosecutor-General in order to guarantee the efficient performance and well-being of the National Prosecuting Authority.
Section 261 of Constitution enjoins The Prosecutor-General and all the officers of the National Prosecuting Authority to act in accordance with this Constitution and the law. No officer of the National Prosecuting Authority is allowed to act in a partisan manner in the exercise of his or her functions. Furthermore, no Prosecutor or employee of the National Prosecuting Authority is allowed to further the interests of any political party or cause; prejudice the lawful interests of any political party or cause; or violate the fundamental rights or freedoms of any person. Prosecutors and employees of the National Prosecuting Authority must not be active members or office bearers of any political party or organisation. They must maintain neutrality in the discharge of their functions at all times.
The National Prosecuting Authority’s team of dedicated and professional Prosecutors is always ready to deliver world class service without fear, favour, bias or prejudice. The Prosecutors are supported by the Administration staff who strive to ensure that Prosecution services run smoothly, efficiently and professionally.
The Prosecutor-General must report to Parliament annually in terms of section 262 of the Constitution. The annual report is submitted through the Minister of Justice, Legal and Parliamentary Affairs. The annual report is a detailed summary of the operations and activities of the National Prosecuting Authority.
Every employee understands that the National Prosecuting Authority is at the centre of the criminal justice delivery system, therefore, they all have a duty to act impartially, with integrity and in the interests of justice at all times. Every employee is thus obligated to apply the highest professional standards and treat everyone fairly and with respect in order to build a safer and corruption free Zimbabwe as we strive towards a middle - income economy for all by 2030.
All Prosecution services are free. Members of the public must not pay for prosecution services.
Challenges and Limitations
The Republic of Zimbabwe does not have a stand-alone law that sets out guidelines for persons who report incidents of corruption and misconduct, whether they be the actions of public officials, state agencies, private corporations and individuals. There is no whistleblower agency, such as the Office of the Whistleblower in Namibia and other jurisdictions such as Canada, the United Kingdom, Serbia, et al.
Whilst there appears to be a commitment, in terms of the drafted legislation, to combat the scourge of corruption, there is no proper coordination by the different state agencies with respect to a clear programme of action. Most of the provisions aimed at tackling corruption are found in various provisions of the criminal statutes such as the Criminal Procedure and Evidence Amendment Act (2004) and the Criminal Law (Codification and Reform) Act (2004).
Similarly, the Directorate of Public Prosecutions is also seen to be aligned to the ruling ZANU PF political party of President Emmerson Mnangagwa. In 2019 the Transparency International Corruption Perceptions Index, in a study on the least corrupt nations, Zimbabwe was ranked 158 out of 180 countries, underlining how far it is from global best practices, despite its strong legislation aimed at curbing the rise of corruption and fraud.
Zimbabwe also lack a protection from employer reprisals linked to disclosures of possible corrupt practices and misconduct against employees who report such misconduct. Section 14 of the Prevention of Corruption Act criminalises the victimisation of persons who provide or disclose information on corrupt practices.
Whilst the legislation is comprehensive in laying out its objectives, the execution thereof is often limited by the means of the enforcing agencies of the state. There is no provision in the statute books which provide for the protection of a witness’s family, and such protection is limited to the persons who report offences and assist and testify in court cases arising therefrom.
Zimbabwe has an archaic law on its statute books called the Official Secrets Act, OSA, (1970) which is a remnant of its colonial past enacted by the previous white-only government in the then Rhodesia. While state agents argue that the OSA act is aimed at safeguarding critical national security interests and is aimed at combatting spying and espionage against Zimbabwe, it is often used to suppress exposure of corrupt practices and maladministration in government institutions. The penalty for disclosure of state secrets without prior authorisation under section 4 of OSA is a term of imprisonment of up to 20 years, a fine or both such fine and imprisonment.
The Official Secrets Act currently exposes members of the media to possible long-term imprisonment should they disclose information obtained in contravention of the Act, and as such muzzles the disclosure of corruption and state malpractices. The media is often intimidated by the improper application of the provisions of the Official Secrets Act and other repressive laws in efforts by state organs to quash and prevent disclosures of corruption and maladministration. Zimbabwe continues to be one of the most repressive countries in which the media operates and independent outlets are routinely shut down and broadcasting licences suspended.
The United Nations Convention Against Corruption (UNCAC) places a duty on member states to adopt laws and measures which provide witnesses and whistleblowers effective protection against reprisals and intimidation arising from disclosures they have made. There should also be the enactment of a specific Witness Protection Act, such as is the case in Botswana, South Africa, Kenya and other jurisdictions like the United States.
As is the case in South Africa, a witness protection agency should be enacted and with regulations setting out the duties of the staff of such envisaged agency. To prevent any hint of political interference, such agency or institution should have the power to act and investigate claims of corruption independently from compromised agencies like the Zimbabwe Republic Police and the Central Intelligence Organisation, which is essentially Zimbabwe’s secret police, an agency with a dire track record of human rights abuses.
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