U4 PRACTICE INSIGHT 2011: 4

Katherine E. Ryder “Making hay while the sun Legal Consultant shines”: Norway Experiences with the Zambian Task Force on corruption

In 2002 the Government of established an intra- governmental task force to investigate allegations of corruption against former President and his inner circle. The task force was mandated to prosecute those who had engaged in corrupt conduct, and to recover any state assets that had been stolen by them. This U4 Practice Insight examines the challenges faced by the task force and by the development community which supported its work.

Anti- Corruption Resource Centre www.U4.no

U4 Practice Insight “Making hay while the sun shines”: Experiences 2011:4 with the Zambian Task Force on corruption

liberalize the economy and privatize the copper In 2002 the Government of Zambia established an industry. It was through this economic intra-governmental task force to investigate transition, according to some observers, that allegations of corruption against former President new revenue streams were created which state officials could easily divert for their personal Frederick Chiluba and his inner circle. The task use. Hand-picked by Chiluba to serve as his force was mandated to prosecute those who had vice president, Levy Mwanawasa resigned after engaged in corrupt conduct, and to recover any three years, publicly accusing the government of corruption and economic irresponsibility. state assets that had been stolen by them. This U4 Chiluba allegedly allowed public officials to Practice Insight examines the challenges faced by embezzle assets from the ministries they the task force and by the development community controlled and rewarded key supporters with old-style paper bags filled with cash. which supported its work. Late in Chiluba’s second term, an independent Zambian newspaper ran a series of articles Background detailing government corruption, including an accusation by two Members of Parliament that Politics in the African Copper Belt Chiluba had diverted public funds for his private benefit. For this, the reporter and editor of the Rich in copper, Zambia was a relatively newspaper were arrested and charged with prosperous and stable country through its first criminal libel for publishing lies and falsehoods years of independence, particularly when set about the President. against the profound economic and political struggles that afflicted Sub-Saharan Africa at In order to prove that the article did not contain that time. Yet the prosperity of early falsehoods, the newspaper had to prove that independence was short lived. Falling copper the allegations were true – that Chiluba had, in prices and chronic mismanagement of the fact, diverted public funds. This legal twist state-owned mining companies crippled the allowed the newspaper to turn a legal defence economy during the 1970s and 1980s. Zambia into a frontal assault on Chiluba. With the borrowed heavily from foreign lenders in an power to call witnesses and subpoena effort to reverse the country’s downward spiral, documents to support their claims, the but the challenges were acute. Calls for newspaper obtained the financial records of the meaningful reform intensified and protests were London based Zambia National Commercial staged to confront the government’s leadership. Bank (ZANACO). “You never expect to find a smoking gun,” said their lawyer – but they had. In 1990, after serving as Zambia’s first and only president for almost thirty years, Kenneth The bank records indicated a massive fraud Kaunda lifted the ban against opposition that generously benefited a long list of Chiluba’s parties. This opened the way for Frederick political allies and close associates. Exploiting Chiluba, a charismatic union leader and former the secrecy surrounding national security, bus driver, to challenge Kaunda for the Chiluba’s inner circle had opened an account at presidency the following year. Through an ZANACO in the name of the Ministry of election lauded as “free and fair” by observers, Intelligence and funnelled state assets through Chiluba became Zambia’s second president in the account to their personal accounts held in one of the first peaceful, democratic transfers of various countries. As the legal proceeding power in Africa. gained momentum it became popularly referred to as the “Chiluba is a Thief” trial. A Legal Twist: “Chiluba Is a Thief” Despite this, Chiluba still commanded Chiluba immediately instituted programs to considerable public support. But he was

1 U4 Practice Insight “Making hay while the sun shines”: Experiences 2011:4 with the Zambian Task Force on corruption

constitutionally prohibited from running for a running and capitalize on the momentum he third term and, in a move that surprised many, had created. The ACC simply did not seem up he endorsed Mwanawasa’s bid for the to the task. Asset recovery actions are notably presidency. Chiluba’s decision appears to have complex, often requiring the services of diverse been based on his conviction that professionals like financial investigators, Mwanawasa’s personal integrity would reflect forensic accountants, and legal advisors. The well on the party and on his own legacy. It was ACC did not have the internal capacity for such also fair to expect that in a political system an undertaking, especially one involving such based largely on patronage, a grateful high-profile defendants. Consequently, it would Mwanawasa would protect Chiluba’s own have been necessary to second expertise from interests. This proved to be a crucial other Zambian institutions, but attracting the miscalculation. most qualified individuals to the ACC would have been difficult given the ACC’s low Immunity Removed standing - a transfer to the ACC would have been viewed by many as a demotion. Even if In 2002 Mwanawasa won the presidency. The staff transfers had been made mandatory, it legal proceeding against the newspaper was was doubtful whether the ACC had the strength terminated, and pressure increased to to sufficiently blend recruits coming from investigate the overwhelming evidence that it diverse work cultures to create an effective had produced against Chiluba. team. Calling the Zambian National Assembly into Perhaps most important, however, was the special session later that year, President highly confidential nature of the investigations. Mwanawasa made a landmark speech in which At stake were the fortunes of a powerful political he asked parliament to remove the elite who, for the past decade, had controlled constitutional life immunity that protected the very offices that were to investigate them. Chiluba. His request, though strongly debated, Maintaining secrecy over information uncovered was accepted by the National Assembly with no by the investigations would be essential, and members voting against it, and few refusing to perhaps better managed by a new entity. vote. Mwanawasa quickly established an ad hoc interagency task force (the Task Force) to Challenges for the Development investigate and prosecute public corruption and to recover assets plundered during the period Community 1991 to 2001, the years Chiluba was in power. President Mwanawasa appealed to the The stage was set for one of the first trials of a development community (or “cooperating former African president for corruption. partners” as they are referred to in Zambia) to support the work of the Task Force. Clearly The Chiluba Task Force there were important long-term benefits to supporting the rule of law and strengthening An Anti-Corruption Commission (ACC) was enforcement agencies. However, providing the established in Zambia in the early 1980s and type of support that Mwanawasa requested also was tasked with broad duties including created challenges. investigating and prosecuting corrupt conduct. Under the Chiluba government, perhaps not Conventional development programs are surprisingly, the ACC had not been developed apolitical and designed to serve and empower into an effective institution. Mwanawasa’s the poor - not the current government. Material decision to bypass the ACC and create the support for an elite task force that targets a Task Force appears to have been founded on a former president is inherently political, number of factors, both practical and political. particularly in the case of Zambia where Chiluba was still politically active and popular. First, he needed a crack team to hit the ground

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Given this, the cooperating partners were Engagement vulnerable to allegations of neo-colonial meddling. They did not wish to be perceived as At the same time, the risks to the country were serving political interests that might not appear also high. In countries where corruption is directly related to poverty. systemic, illegal means are often used to entrench the political elite. Decades may pass Nor did they wish to be viewed as serving before the opposition is able to put a successor domestic political agendas. Many Zambians government in place and, when it does, very believed that Mwanawasa was exploiting the often there are deep political, social, and even donors by using the Task Force to play dirty familial ties to the corrupt government that politics against Chiluba. By attacking Chiluba’s preceded it. Indeed, the successor government integrity, especially with the imprimatur of the may have benefited from the corruption of the judiciary, Mwanawasa could both minimize the former government and, consequently, cannot political threat that Chiluba posed and lead anti- target former officials without exposing itself. corruption watchdogs away from his own Prosecuting those who have held high office administration. Mwanawasa's election had been can be a highly charged and divisive tainted by allegations of vote rigging, and by undertaking, perhaps even destabilizing for the tackling corruption at the highest level he country. fortified his image as a champion of clean government. Even where the political will to challenge corruption exists, many practical obstacles must Zambia’s cooperating partners also had to be overcome. Preparing for a criminal consider what would be the best vehicles to prosecution or asset recovery action is an deliver assistance. Financial and technical expensive endeavour requiring highly skilled support would be helpful, even necessary, but professionals in multiple jurisdictions. The costs perhaps not sufficient for the Task Force to alone can be reason to think twice. The achieve its mandate. The cooperation of foreign cooperation of foreign enforcement agencies is enforcement agencies was essential to obtain also necessary, and investigations often lead to evidence located abroad, but requests for such secrecy jurisdictions where the inability or legal assistance are notoriously difficult. How unwillingness to provide assistance can could this be addressed? effectively terminate an investigation. In short, And how to measure progress? Where the ACC scarce resources must be committed toward an was a long-term project on which progress uncertain outcome in the distant future. Many could be built and benchmarked over years, the new governments, understandably, are life of the Task Force was limited, its mandate unwilling to do this. was narrow, and, most importantly, the And yet, while the Zambian experience outcome was far from sure. Given the many illustrates these challenges, a confluence of risks and uncertainties, it was unclear how the events gave rise to the groundbreaking work of cooperating partners should justify expending the Task Force. Observers point to resources on such a program. Mwanawasa’s personal commitment to fight There were no immediate answers to these corruption, his political strategies to minimize concerns. But there was an overriding Chiluba’s influence, the legal defence which understanding that opportunities for asset generated evidence of grand corruption, and, recovery and/or high-level prosecutions are crucially, the public’s continued interest and rare, and that this was an opportunity to be involvement. These intrinsically Zambian events seized. culminated in the decision at the highest levels of government to remove the immunity that protected Chiluba. Once the wheels were in motion, the

3 U4 Practice Insight “Making hay while the sun shines”: Experiences 2011:4 with the Zambian Task Force on corruption

cooperating partners were quick to respond by generous allowance (typically 100% of the providing innovative and flexible support. salary) paid directly by the Task Force.

Structure and Mandate Leadership was two-tiered. For general oversight, President Mwanawasa created an The Task Force on Corruption was established executive board made up of the directors of by presidential decree in 2002 for an initial institutions from which the secondees were period of four years. Its mandate was clear: (i) drawn. By giving these institutions a seat at the investigate suspected cases of corruption table he provided them with the opportunity to arising between 1991 and 2001; (ii) prepare guide the work of the Task Force. At the same prosecutions on the basis of the strongest time, he made them responsible for its success. available evidence; (iii) recover stolen assets For the day-to-day management of the Task belonging to the Government of Zambia for the Force, Mwanawasa appointed an executive benefit of Zambia; and (iv) build capacity for the chairman. The chairman was responsible for, investigation of complex financial crimes and amongst other things, developing legal make recommendations on appropriate anti- strategies, case management, and arguing the corruption measures to minimize future abuses. government’s position before the courts. Both the board and the executive chairman reported As an ad hoc body the Task Force did not directly to the President. possess the legal personality that an act of parliament would have conferred. Without this, The cooperating partners liaised with both the it was forced to rely on other government executive board and the executive chairman. agencies in fundamental ways, most On matters of high importance, they worked significantly, to initiate legal proceedings. In directly with the President. Zambia, the Director of Public Prosecutions has authority over criminal prosecutions and the Novel Approaches: A Prelude to the Attorney General has authority over civil Declaration proceedings, and one or the other had to approve a recommendation by the Task Force In 2002, a Memorandum of Understanding was to take legal action. And because the Task signed by the Government of Zambia and the Force was created by presidential decree it was cooperating partners, including Denmark, tied directly to the will of the President. Ireland, the Netherlands, Norway, Sweden, and Although Mwanawasa could provide political the United Kingdom. The cover, the Task Force had no legal foundation provided technical cooperation separately. The on which to stand without his support, which Memorandum reflects an understanding that made it vulnerable to questions concerning its the process must be led by Zambia, and that legitimacy. fundamental decisions on how to proceed must be made by the Task Force. In organization, the Task Force was designed to be flexible so that personnel could be quickly The cooperating partners jointly supported the assembled based on the changing needs of the Task Force instead of individually supporting investigations and legal proceedings. Experts particular aspects of its work. Their united front were seconded from existing Zambian not only signalled the importance with which institutions, including the police, security they viewed the initiative, but, arguably, intelligence, drug enforcement (for anti-money provided cover from possible political fallout. It laundering expertise), the public prosecutor, also helped mitigate any legal risks which might and the Anti-Corruption Commission. Private have arisen from a donor being identified with lawyers were brought in as needed for funding a specific legal action. additional support. The Task Force staff was Technically, finances were provided through a paid by the institutions in which the secondees pooled funding mechanism without earmarking were formally employed, supplemented by a funds for certain tasks. Known today as “basket

4 U4 Practice Insight “Making hay while the sun shines”: Experiences 2011:4 with the Zambian Task Force on corruption funding”, this mechanism was rather unusual at assets had been moved through well-respected the time. The cooperating partners provided financial institutions in financial capitals. Indeed, three-quarters of the funding needed by the Zambian assets had already been traced to Task Force in roughly equal contributions, and London. the Zambian Government paid the remaining amount. Consequently, in relation to each Evidence of a Crime partner, the Zambian Government was the Obtaining evidence or recovering assets in larger contributor. The cooperating partners foreign jurisdictions requires the cooperation of also agreed not to redirect funds from existing enforcement agencies and, possibly, private programs to fund the Task Force, which practitioners operating there. A Mutual Legal placated Zambian concerns that the existing Assistance (MLA) request is the formal way in programs might be sacrificed. They also which countries request and provide assistance established a separate fund to support in obtaining evidence. MLA is considered so payments necessary for private sector vital to anti-corruption enforcement that it is prosecutors in Zambia and foreign investigators incorporated in detail in the and lawyers working overseas. Convention against Corruption (UNCAC). In return for this support, the Zambian To be effective, MLA requests must be filed Government agreed that any money realized quickly to capture assets that can be moved from the disposal of recovered assets would be instantaneously across borders through used for development purposes only. This electronic money transfers. They must also be helped address concerns that development crafted to avoid legal obstacles that can arise funds should be used to address poverty in a when practitioners from different legal systems country that was, at the time, one of the poorest work together, for example, where the in the world: 80% of the population lived on evidentiary or procedural standards in the under USD 1 a day, life expectancy was under recipient country are higher than the requesting 40, and debt servicing ate 20% of the domestic country. In practice, requests for assistance are revenue. often improperly drafted and, even if not, the recipient country may simply not have the Impact resources to address the request. The public in Zambia closely followed the work Zambia’s cooperating partners clearly of the Task Force. Expectations were high that understood the challenges that the Task Force looted assets would be quickly recovered and would face obtaining evidence from abroad – that corrupt officials would be duly punished. for example, following assets that were The international community also took interest. channelled through the bank accounts in Not only was it one of the first times that a London. To counter this, the UK Department for former president in Sub-Sahara Africa was International Development (DfID) took the prosecuted for corruption in his own country, unusual step of working closely with but there was concern that Zambian assets had enforcement agencies, investigators, and been laundered through Europe. others in London to secure assistance for the It was becoming more widely understood by the Zambians. Subsequently, building on this international community that northern financial experience, DfID established the International centres often served as the complicit partners Corruption Group Project (ICG), bringing of southern kleptocrats. Internal due diligence together discreet police units within the or “Know Your Customer” (KYC) requirements Metropolitan Police Service and City of London Police that are dedicated to the investigation of and anti-money laundering laws (AML) had corruption between developed and developing only recently been introduced in many countries. The ICG has two focus areas: bribery jurisdictions, and it was possible that Zambian by UK firms and nationals committed in

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developing countries, and money laundering by The Task Force immediately filed an appeal “politically exposed persons” (PEPS) - persons regarding Chiluba’s acquittal, but it was precisely like Chiluba and those involved in withdrawn days later by the Director of Public diverting Zambian public assets through Prosecutions who had not approved the filing. financial networks in London. The Director stated that he did not believe the appeal would succeed because the account The Trials from which Chiluba allegedly diverted funds appeared to have received transfers from A comprehensive list of actions filed by the sources other than the Zambian Government. Task Force has not been made public, but Consequently, in his view, it would be extremely preliminary figures indicate that as many as difficult to prove that Chiluba diverted public twenty-four criminal actions were filed between funds. The Director of the Task Force disagreed 2001 to 2009, resulting in thirteen convictions. publicly and was promptly sacked by the Most of the convictions, if not all, have been or President for insubordination. Critics of the are being appealed. Defendants include the judgement claimed political interference. former Minister of Finance, Permanent Secretary of Finance, Director of Budget, Separately, Chiluba’s wife was found guilty in Secretary to the Treasury, Director of the 2009 of receiving stolen state assets in the Security Intelligence Services, the Managing amount of USD 300,000 and was sentenced to Director of the Zambia National Commercial three and a half years in prison. She appealed Bank, the Secretary of the MMD (a national the decision and was acquitted in late 2010. political party), Army and Air Force commanders, and Chiluba’s wife, Regina Chiluba: Civil Asset Recovery in London Chiluba. Separately, a civil action was filed in London Chiluba: Criminal Prosecution in Zambia with the High Court in 2006. The action sought to establish liability on the part of Chiluba and In 2003, a criminal action was filed in nearly twenty associates. Like the criminal before a magistrate judge charging Chiluba with prosecution in Zambia, the civil claim in London six counts of theft by a public servant in the was based largely on the alleged diversion of amount of USD 500,000. Charges were also state assets through the account held at filed against two close associates for the ZANACO. Also like the criminal prosecution, the diversion of state assets through the London claim was heard by a single judge and without a branch of ZANACO. Chiluba argued that any jury. money that had been moved out of ZANACO The final judgement, issued the following year, and used for his personal benefit was actually found the defendants liable for a total of USD his money that had been inadvertently co- 46 million (later increased to USD 58 million mingled with public money. When questioned with interest and costs). To illustrate the extent as to the source of this money, he pointed to to which the average Zambian had been financial gifts from his many supporters. defrauded by Chiluba and his cronies, Justice The trial ended in 2009 after six long years. On Peter Smith noted that Chiluba had managed to the charges against Chiluba, the magistrate spend over USD 1 million in a single exclusive concluded, "We are satisfied beyond Swiss boutique on hundreds of designer shirts reasonable doubt that the prosecution failed to and suits, and on shoes handcrafted to prove that the accused stole funds." Chiluba Chiluba’s personal specifications. He was acquitted. His two associates, however, contrasted this with Chiluba’s state salary of were found guilty of theft and of possession of approximately USD 10,000 per year. As state funds, and were sentenced to three years Zambia’s President for two five-year terms, his of hard labour. total earned income was not more than USD 100,000.

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The importance of the London judgement is not possible on the evidence presented- even if only that it allowed assets in the UK belonging sufficient for the civil proceeding. to the defendants to be seized, but that it could Critics of Chiluba’s criminal acquittal point to be enforced in other jurisdictions that recognize possible irregularities in the legal basis of the UK jurisprudence, through bilateral treaties or decision. The magistrate considered, for otherwise. Consequently, assets that the example, the definition of a government official defendants hold elsewhere in Europe or the under Zambian law and found that the office of US, for example, could be seized by registering President is not the office of a government the London judgement in the countries where official. Consequently, under this interpretation, assets are found. laws on political corruption were inapplicable to The Task Force attempted to register the Chiluba. Zambian legal experts found the London judgement in Zambia in 2007. Chiluba magistrate’s view a highly irregular challenged the registration before a Zambia interpretation of the law. It is worth noting that court, which ruled against him. Chiluba UNCAC’s common sense definition of a public appealed the decision to the High Court of official includes anyone holding an executive Zambia arguing, amongst other things, that the office, whether appointed or elected, or London High Court lacked jurisdiction and that permanent or temporary, as being a public Zambian law on the enforcement of foreign official. This would include the office of the judgements had not been fully satisfied. The president, as the highest executive office. High Court agreed and determined that the Critics also point to the convictions of Chiluba’s London judgement could not be used in Zambia two business associates for being in – even though the Government of Zambia, possession of money stolen or unlawfully through the Task Force, sought and obtained obtained. How could Chiluba be found innocent, the judgement. Again, critics cried political they ask, when his co-defendants were found interference. guilty on the same evidence? Chiluba gave a Where does this leave us? statement under oath but never testified (and thus was never cross-examined) that the The different outcomes of the civil and criminal money was given by supporters and proceedings have generated considerable accidentally co-mingled with public funds. His comment. Why was Chiluba acquitted in one co-defendants similarly testified that their country and found liable in another when the personal funds were co-mingled with public proceedings were based largely on the same funds. The difference in the court’s treatment evidence? between Chiluba and his co-defendants smacked of political influence, the critics From a legal perspective, a finding of civil claimed. It was simply quid pro quo - appeasing liability is based on a lower evidentiary standard the public by jailing Chiluba’s handmaids on the than in a criminal prosecution and, given this, one hand, and securing Chiluba’s loyalty by the trials are not directly comparable. In the civil keeping him a free man on the other. proceeding the evidence must have shown “by a balance of the probabilities” that a nexus From a political perspective, it seems clear that existed between the property subject to seizure the winds in Zambia had shifted. In 2008 and the criminal conduct. The higher standard Mwanawasa unexpectedly died, and with his of evidence used in the criminal proceeding, death, some argue, the political will to however, required the prosecution to prove prosecute Chiluba evaporated. Public sympathy “beyond a reasonable doubt” that the for Chiluba had grown over the six years that he defendants engaged in corrupt conduct or, in was on trial. As President he had inherited a Chiluba’s case, that he had diverted funds country deeply in debt to foreign lenders and belonging to the people of Zambia. This, in the one of the poorest in Africa. Corrupt or not, view of the Zambian criminal court, was not even his critics concede that he instituted

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market reforms that improved copper Separately, the Task Force assisted the production and strengthened the Zambian Zambian Attorney General to defend against economy. He had peacefully relinquished the two unrelated actions (involving commercial presidency and had been, his supporters matters) filed against the Zambian Government claimed, unjustly attacked by the very man he in foreign jurisdictions. In both actions, the pulled up the political ladder. Chiluba declared Zambian Government paid less than the that Mwanawasa had used the Task Force as a amounts claimed by the petitioners, arguably political tool. He claimed to be the victim of a saving USD 200 million that it would otherwise British-led witch-hunt and that Mwanawasa had have been required to pay. When assessing “betrayed the national trust” by using a foreign the recovery efforts of the Task Force, many court to pursue him. Chiluba asked, “What kind include this sum. of a government is this that could put its president at the hands of a foreign land and Disbanding the Task Force imperialists?" In 2009, the Task Force on Corruption was Beyond Chiluba’s claims of unjust treatment, as formally dissolved. The Zambian Government long as he remained out of jail many of his transferred all operations to the Anti-Corruption colleagues stood to benefit from the support Commission (ACC) and ordered the ACC to that he still commanded throughout Zambia. pursue the open cases to their conclusion. And this, his detractors argue, was sufficient Efforts were made to build up the ACC during reason to use whatever means available to the existence of the Task Force, though unduly influence the proceedings against whether the ACC has the capacity to pursue Chiluba – which the untimely death of complex financial fraud remains to be seen. An Mwanawasa may have facilitated. important indicator, perhaps, will be the ability of the ACC to handle the many appeals from The Recovery of Stolen Assets prosecutions initiated by the Task Force. It is worth noting that few members of the Task In the view of some, the legal process of Force were seconded from the ACC and, pursuing the stolen assets was most important consequently, the institutional benefit gained – not the actual recovery. Testing and from prosecuting complex fraud cases is strengthening the legal system through the expected to be minimal. trials and appeals was an important step in the country’s long-term development. However, it cannot be ignored that both cooperating Lessons learned partners and the Zambian Government must The challenges that were faced by both the evaluate their programmes, measure their Task Force and the cooperating partners were success, and account for the tax dollars that considerable, and a number of lessons for have been spent. In this context, the value of stakeholders and donors in Zambia and the assets recovered is important. elsewhere might be drawn from their And even though asset recovery was a central experiences: component of the Task Force’s mandate, • Be ready – When a window of opportunity information on precisely what has been opens, be ready to move quickly because it recovered and the value of the recovery is not may not be open for long. The untimely easily available. By some accounts, civil actions death of Mwanawasa arguably shortened undertaken by the Task Force have established the life of the Task Force. Consider what legal claims to date of more than USD 50 can be done in advance to prepare the host million (both inside and outside of Zambia), of country and enforcement agencies in which almost USD 20 million has been realized jurisdictions where looted assets may have in either cash or assets, including real property, been channelled. A strong framework can planes, and boats.

8 U4 Practice Insight “Making hay while the sun shines”: Experiences 2011:4 with the Zambian Task Force on corruption

allow stakeholders to act rapidly to recover are able to coordinate at the national and public assets (or development finance or international levels. international aid) if evidence of misconduct • Share the risk – Pooling support provides emerges. the advantage of sharing responsibility and • Speak with one voice – Coordination can risk. In Zambia, support funds were not tied be key, first among the donors and, to a particular donor or earmarked for a separately, among the donors and their particular purpose. The Task Force was respective embassies and home offices. able to channel support when and where it Coordinating with one’s diplomatic missions was needed. It also provided a degree of can ensure their support for interventions political cover for those cooperating that have political ramifications. In Zambia, partners that had reservations about there appeared to be general agreement supporting targeted legal actions, and it between the cooperating partners and their distanced individual cooperating partners respective embassies on whether and how from particular expenditures. the Task Force should be supported, • Chart the course – Delays and missteps though it is easy to imagine that different can be reduced by developing a agendas, priorities, and views could have comprehensive case strategy up front, led to internal conflicts amongst them. including technical assistance in the form of • Support home-country partners – In experts in case development and Zambia, the cooperating partners clearly management to advise on jurisdictions of understood the challenges that the Task interest. A clear understanding of what Force would face to obtain evidence from actions must be taken, in what order, and abroad – for example, tracing the assets in by what date is essential for success. In London. To address this, the UK some jurisdictions, for example, it is Department for International Development necessary to have a criminal conviction on (DfID) took the unusual step of working which to base the asset recovery action – in directly with enforcement agencies, others it is not. In some jurisdictions the investigators, and others in London to prescriptive period during which the actions secure their assistance. Supporting home- must be filed is quite short – in others, country institutions with funds earmarked again, it is not. Issues like these must be for international development may seem unpacked in order to develop a viable legal counterintuitive, especially to those not strategy. involved in development work. But While it is important to understand how programs like the innovative ICG Project different jurisdictions treat key issues, it is can bring development benefits, especially also important to strategize for purely through returned assets. It can also domestic proceedings. In Zambia, for substantially improve the exchange of example, the original criminal action against information between countries, creating an Chiluba alleged 168 criminal counts relating environment that makes it far more difficult to theft. The charges were later reduced to for kleptocrats to move assets through six counts of theft by a public servant. global networks to avoid detection. Throwing all possible charges against a As a potential entry point, UNCAC Article defendant is not unusual in novel corruption 14 requires State Parties to implement cases, but assembling the initial case based comprehensive domestic regulatory and only on the most viable charges will save supervisory measures to prevent money time and resources, and prevent laundering and to ensure that law misperceptions that the government’s case enforcement and other authorities is weak because many charges are later dedicated to combating money laundering dropped.

9 U4 Practice Insight “Making hay while the sun shines”: Experiences 2011:4 with the Zambian Task Force on corruption

• Build the team – Diverse expertise from As a potential entry point, UNCAC Article various institutions can be very useful, 30 requires State Parties to strike an necessary in fact, to pursue actions for appropriate balance between any asset recovery and complex financial fraud. immunities accorded to public officials for Not only does it build the capacity of the performance of their functions and the individual institutions, it builds links between need to effectively enforce anti-corruption institutions themselves. At the same time, norms. however, attention must be paid to the • Keep it simple – It does not require impact of this approach on the receiving complex laws to prosecute complex fraud. body. Before rushing to offer technical assistance In practice this strategy had negative to draft new laws, consider carefully implications for the Task Force. The whether adequate laws are already in availability of secondees was controlled by place. Some Zambians recall the the institutions from which they were drawn, eagerness of the international community to and secondees were offered or withdrawn redraft Zambian anti-corruption laws in based on the needs of those institutions. order to facilitate the work of the Task This caused a significant turnover of staff Force. In the view of some, however, new within the Task Force that seriously legislation was unnecessary and might compromised its institutional memory, have made the work of the Task Force especially in combination with less than harder. Complicated and sophisticated laws adequate case management systems. can be difficult to use, both for the prosecutor and the judge who must apply • Remove the obstacles – Broad immunities them. Moreover, the push for drafting that unjustifiably protect government legislation, though well intentioned, risked officials should be challenged. The concept putting the Zambians in the awkward of immunity is based on the notion that position of having to either refuse public servants should be protected from assistance, or accept assistance that might legal action in order to protect the office be have been better directed elsewhere. they hold. If they have to respond to politically motivated legal attacks, they will • Support the courts that count – Targeting be unable to fulfil the responsibilities of the support to courts where complex economic office. The rationale for immunity is crimes are filed, or should be, is crucial for undermined, however, when it is used as a successful corruption prosecutions and means to escape justice, especially when asset recovery actions. Many of the actions the person is no longer in office. filed by the Task Force were before magistrate courts, which are subordinate In the case of Chiluba, the Zambian courts and not suitable for evidence-heavy constitution granted him life immunity from complex cases. Large scale and high level prosecution, and it took all three branches corruption should be the jurisdiction of of government to act before immunity was higher courts which, ideally, have sufficient lifted. President Mwanawasa requested the independence and experience to render National Assembly to remove the immunity timely decisions – supporting these courts and, once done, Chiluba challenged the should be prioritized with respect to parliament’s action by taking the issue to anticorruption enforcement. the judiciary. The court found that the National Assembly had acted within its • Ensure transparency – Authorities should constitutional mandate and allowed the agree at the outset what information should immunity to be removed. At any point the be disclosed and to whom, and resist the effort could have failed. temptation to require a higher level of

10 U4 Practice Insight “Making hay while the sun shines”: Experiences 2011:4 with the Zambian Task Force on corruption

confidentiality than normal for higher-risk is a broad concept. The agreements did not initiatives like the Task Force. While clearly articulate how assets should be releasing information concerning ongoing disposed and for what development cases must be judged case by case, there purposes the funds should be used. is a clear need for open communication Consequently, the disposal process has among the government, the public, and the been less than transparent. Significant cooperating partners in order to manage delays further disappointed the public, and expectations and evaluate results. the Task Force was easy to blame even though it had no control over the disposal How much was actually recovered by the mechanisms. Zambian Government? This is difficult to pinpoint precisely, and it is unclear why this • Manage public expectations – The information is not immediately available. creation of an elite task force in itself raises While there may be political reasons for the public’s expectations. In Zambia, the withholding this information, it might be, public anticipated quick convictions and more simply, a reflection of government expected their lives to improve when the practice. There are often no traditions for recovered assets were reinvested in sharing information with the public or civil development programs. The Task Force society. This should be expected and relied on traditional public relations tools, addressed at the outset. like press briefings on specific cases, which proved insufficient. The public was not fully • Agree on asset disposal – Clear prepared for the long trials and the agreement should be reached on how and uncertain outcomes and was provoked by when recovered assets should be disposed. press coverage of high fees paid to foreign As a first step, it is reasonable to request and Zambian private lawyers. It was a fine that the assets be put toward development balance between heralding the goals to justify spending development establishment and promise of the Task money on their recovery. As a next step, Force and preparing the public to support consider defining what constitutes the commitment of scarce resources with “development” generally, and describing in no guarantee of return. detail the process through which an agreement on the disposal of recovered • Beware of the backlash – Legal actions assets can be reached. provide an opportunity to assess the strengths and weaknesses of a country’s At the early stages, negotiating a detailed legal framework – which laws worked well, agreement on the disposal of (unknown) which did not, and why? The actions assets can waste valuable time and risk brought by the Task Force catalyzed a delaying an investigation. Focus on moving review of the Zambian legal framework, and the process forward, but preserve the right new laws were drafted on whistleblower to be involved in how the recovered assets protection, plea-bargaining and the are disposed. Strategically, it can be forfeiture of proceeds of crime. beneficial if they are used to fund projects that can be enjoyed by the public in order to On the flip side, however, the same reinforce the value of the asset recovery opportunity can be used to weaken laws action. that might work too well. In 2010, the Zambian National Assembly passed the In Zambia, the Memorandum of Anti-Corruption Commission Act to replace Understanding between the Zambian the Corrupt Practices Act of 1980. The new Government and the cooperating partners law included a provision on illicit provided that the recovered assets should enrichment, which makes an offence any be used for development. But development significant increase in the assets of a

11 U4 Practice Insight “Making hay while the sun shines”: Experiences 2011:4 with the Zambian Task Force on corruption

government official which cannot be was attached to Chiluba in Zambia. Which reasonably explained. Illicit enrichment laws raises the very relevant question - was it worth are found in many jurisdictions and are it? powerful tools to fight corruption, especially This is not an easy question to answer, and complex fraud involving secrecy perhaps the answer depends on how you jurisdictions (which make it nearly measure success in anti-corruption efforts – an impossible to follow financial paper trails). issue itself the source of much discussion. In In fact, Article 20 of UNCAC asks States the field of governance, and particularly in Parties to consider establishing such an respect of anti-corruption, it is difficult to offense. tangibly measure whether a program, or a task But illicit enrichment also touches on force for that matter, has been effective. constitutional presumptions of innocence by Counting the number of convictions and the shifting the burden to the defendant to value of the assets recovered can be prove his or her innocence – instead of illuminating, but many have argued that keeping it on the prosecutor to prove the determining whether a process has been defendant’s guilt. This, the Zambian successful should not be limited to these Government argued, was reason enough to variables alone. A better approach looks at a strike the provision from the new law. broader set of benchmarks – some quantitative others qualitative, that, held together, can • Take the good with the bad – International reveal the true value of an effort. development often involves tradeoffs, especially in the field of governance and Consider that while the international press corruption. Did Mwanawasa create the Task focused on the trials of Chiluba, there were Force as a political tool to use against many other high-level government officials, Chiluba, and did he exploit the cooperating including his wife, who were prosecuted. This is partners to do it? Or was Mwanawasa a noteworthy for the many ways in which champion of clean government who participating institutions were strengthened, and prosecuted the worst corrupt officials, also for the deterrent effect this may have on starting at the top? government officials going forward. As is often the case, it was probably some Possibly more important, the proceedings tried of both. But the cooperating partners and tested the Zambian legal system. Bringing recognized that even if Mwanawasa’s cases to court is a difficult but necessary step political agenda was advanced by bringing toward long-term development and political Chiluba down, the enduring benefit to accountability. Inevitably the strengths and Zambia and Sub-Saharan Africa of weaknesses of the system are revealed as the demanding accountability from the highest trial progresses. Understanding where the office was manifestly important. Such system works - and where it fails - is crucial to tradeoffs are not uncommon, and should implementing targeted reforms and sharpening not be seen as diminishing the value of the tools to enforce the rule of law. intervention. As for Chiluba, although he walked away, he was nonetheless called to account and made to Conclusion – Was it worth it? answer the charges. This alone represents an enormous step forward in the struggle to The investigation and trials took almost eight change the country’s political culture - a years, consuming resources of both the precedent has been established by demanding Zambian government and contributing partners. Despite this, and to the disappointment of many accountability from a head of state and those around him. This has importance not only within Zambians and anti-corruption campaigners Zambia, but beyond. around the world, no civil or criminal liability

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CMI-U4 PO Box 6033 5892 Bergen, Norway Tel: +47 55 57 40 00 [email protected]

U4 is a web-based resource centre for development practitioners who wish to effectively address corruption challenges in their work. The centre is operated by the Chr. Michelsen Institute – an independent centre for research on international development and policy – and is funded by AusAID (Australia), BTC (Belgium), CIDA (Canada), DFID (UK), GTZ/BMZ (Germany), Norad (Norway), Sida (Sweden) and The Netherlands Ministry of Foreign Affairs. All views expressed in this brief are those of the author(s), and do not necessarily reflect the opinions of the U4 Partner Agencies or CMI/U4. (Copyright 2011 - CMI/U4)

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