Anti Corruption Legal Assessment Study
TABLE OF CONTENTS
LIST OF ABBREVIATIONS AND ACRONYMS...... 5 CHAPTER ONE: BACKGROUND TO THE STUDY...... 7 1.0 INTRODUCTION...... 7
1.1.OBJECTIVES OF THE STUDY ...... 9 1.2. METHODOLOGY...... 9 1.3. EXPECTED OUTPUTS ...... 10 1.5. LIMITATIONS OF THE STUDY ...... 10 CHAPTER TWO: GOVERNMENTAL FRAMEWORK FOR COMBATING CORRUPTION...... 11
2.0 INTRODUCTION...... 11
2.1 EXECUTIVE...... 11 2.2 LEGISLATURE ...... 15 2.2.1. Committee System ...... 15 2.2.2. Public Accounts Committee...... 16 2.2.3. Budget Oversight ...... 17 2.2.4. Government Borrowing...... 19 2.2.5. Ratification...... 21 2.3 THE JUDICIARY ...... 23 B. NON-GOVERNMENTAL STAKEHOLDERS PARTICIPATION IN COMBATING CORRUPT ION...... 28
2.4 CIVIL SOCIETY...... 28 2.5 MEDIA...... 31 2.5.1. Media Ownership ...... 32 2.5.2. Media Law Reforms...... 32 2.5.3 Media Coverage on Corruption ...... 34 2.6.PRIVATE SECTOR ...... 34 2.6.1. Corporate Governance...... 36 2.7. DONOR ANTI-CORRUPTION INITIATIVES...... 38 THE DONORS HAVE SUPPORTED THE FOLLOWING ANTI-CORRUPTION INITIATIVES:...... 39 CHAPTER THREE: WATCHDOG INSTITUTIONS ...... 41 3.0. INTRODUCTION...... 41
3.1 MANDATE OF THE ANTI-CORRUPTION COMMISSION (ACC)...... 41 3.1.1. Establishment and legal basis of the Commission ...... 42 3.1.2. Membership of the Commission...... 43 3.1.3. Management of the Commission...... 43 3.1.4. Reporting...... 44 3.1.5. Definition of Corruption ...... 45 3.1.6. Application of the Act...... 46 3.1.7. Presumptions ...... 47 3.1.8 Extra Territorial Jurisdiction...... 47 3.1.9. Powers of Investigations ...... 47 3.1.10 Prosecution...... 48 3.1.11 Pardon ...... 48 3.1.12. Evaluation...... 48 3.2. ZAMBIA NATIONAL TENDER BOARD...... 49
2 3.2.1. Principles of Procurement ...... 49 3.2.3. Zambia National Tender Board Act ...... 50 3.2.4. Membership of the Board...... 51 3.2.5. Financial Disclosure Statements ...... 52 3.2.6. Open Meetings ...... 52 3.2.7. Commitment and Expenditure Control ...... 52 3.2.8. Single Sourcing ...... 522 3.2.9. Assessment of the ZNTB Act...... 54 3.2.10. Measures to Combat Corruption in the Procurement Process ...... 54 3.3 OMBUDSMAN ...... 55 3.3.1 The Investigator General...... 56 3.3.2. The Role of the Ombudsman in Anti-Corruption Programmes ...... 61 3.3.3. Assessment of the Investigator General ...... 61 3.3.4. Measures to Reform the Investigator General ...... 62 3.4. AUDITOR GENERAL...... 62 3.4.1. The Relationship between the Auditor General and the National Assembly...... 66 3.4.2. Assessment of the Auditor General’s Performance...... 66 3.4.3. Assessment of the Performance of the Public Accounts Committee ...... 67 3.4.4. Measures required to be taken to Improve the Performance of the Auditor General and the 3.5. ELECTORAL COMMISSION OF ZAMBIA ...... 69 3.5.1. Assessment of the Electoral Commission of Zambia...... 70 3.5.2. Political Parties ...... 71 3.5.4. Rationale for Funding of Political Parties ...... 73 3.5.5. Measures required to be taken to enhance the Electoral Commission of Zambia...... 73 3.5.6 Funding of Political Parties ...... 74 CHAPTER FOUR: PUBLIC SERVICE INVOLVEMENT IN COMBATING CORRUPTION...... 76 4.0. OVERVIEW OF THE PUBLIC SERVICE IN ZAMBIA...... 76
4.1. RECRUITMENT, APPOINTMENTS AND PROMOTION OF PUBLIC OFFICIALS...... 77 4.1.1 Recruitment Procedures ...... 77 4.1.2 Screening and Background Search...... 78 4.2 ACCOUNTABILITY AND ETHICS IN THE ZAMBIAN PUBLIC SERVICE...... 79 4.2.1. Comparative Analysis on Accountability and Ethics in the Public Service...... 81 4.2.1.1 Ghana: Ethics in the Public Service ...... 81 4.2.1.2 South Africa: Ethics in the Public Service ...... 83 4.3. NATIONAL PROGRAMMES TO REFORM THE PUBLIC SERVICE...... 85 4.3.1.Public Service Capacity Building Program me (PSCAP)...... 86 4.3.2. Other Governance and Corruption Programmes ...... 88 4.4 SKILLS REQUIREMENTS...... 89 4.4.1. Identification of Skills required in Investigation, Prosecutions and Legal Procedures ...... 90 4.4.2. Description of Training Service Providers ...... 93 CHAPTER FIVE: LEGAL PROCESSES RELATED TO CORRUPT PRACTICES ...... 102 5.0. INTRODUCTION...... 102
5.1. DIRECTOR OF PUBLIC PROSECUTIONS ...... 102 5.1.2 Assessment of the office of the Director of public Prosecutions…………………………………………………………………. 103 5.2. INVESTIGATIVE TECHNIQUES………………………………………………………………………………………………………106 5.2.1 Focus Investigations ...... 106 5.2.2. Terms of Reference...... 107 5.2.3. Policy Document ...... 108 5.2.4. Selection of the Investigation Team...... 108 5.2.5. Proactive Integrity Testing ...... 109 5.2.6.Financial Investigation ...... 109 5.2.7. Electronic Surveillance, Search, and Seizure...... 109 5.3. ZAMBIAN EVIDENTIARY LAW...... 110 5.3.1 The Anti-Corruption Act…………………….……………………………...…………….……………………………………...109 5.3.2. The Evidence Act………………………………………………………………………………………………………………..111 5.3.3 The Evidence (Bankers Books) Act …………………...……………………………………………………………………. 112 5.3.4 The High Court Act……………………………………………………...……………………………………………………. 112 5.3.5 The Subordinate Courts Act………………………………………………………………………………………………… 112
3 5.3.6 Juveniles Act …………………………………………………………………………………………………………………… 113 5.3.7 Other Statutes……………………………………………………………………………………………………………….. 113 5.4. JURISDICTION ...... 115 5.6. SENTENCING...... 118 5.6.1. Considerations taken into account in Sentencing...... 119 5.6.2. Forfeiture law and Recovery of Assets ...... 121 5.7 The Task Force on Economic Plunder…………………………...……………………………………127 CHAPTER SIX: MONEY LAUNDERING...... 134 6.0. OVERVIEW OF MONEY LAUNDERING ...... 134
6.1 MONEY LAUNDERING LEGISLATION...... 135 6.2. THE PROHIBITION AND PREVENTION OF MONEY LAUNDERING ACT...... 135 6.2.1. The Anti-Money Laundering Investigations Unit...... 136 6.3. THE ROLE OF SUPERVISORY AUTHORITIES IN ANTI-MONEY LAUNDERING...... 137 6.3.1. Bank of Zambia Anti-Money Laundering Directives 2004...... 139 6.4. THE NATIONAL PAYMENT SYSTEM...... 145 6.4.1. Financial Intelligence Unit (FIU)...... 147 6.5. ASSESSMENT OF THE MONEY LAUNDERING MEASURES IN ZAMBIA...... 148 6.5.1.Measures that require to be taken to implement the Prohibition and Prevention of Money Laundering Act...... 148 CHAPTER SEVEN: FREEDOM OF INFORMATION...... 149 7.0. OVERVIEW OF THE CONCEPT OF FREEDOM OF INFORMATION...... 149
7.1. PRINCIPLES OF FREEDOM OF INFORMATION LEGISLATION ...... 151 7.1.1. Maximum Disclosure ...... 151 7.1.2. Limited Scope of Exceptions ...... 152 7.1.3. Disclosure takes Precedence...... 152 7.1.4. Open Meetings ...... 153 7.1.5. Obligation to Publish Information ...... 153 7.1.6. Processes to facilitate Access to Information ...... 154 7.1.7. Independent Scrutiny and Enforcement Mechanisms...... 155 7.1.8. Commercial Information...... 155 7.1.9. Protection for Whistle- blowers ...... 155 7.1.10 Destruction of Records ...... 155 7.1.11. Costs...... 156 7.1.12. Appeals ...... 156 7.2. EFFORTS TO ENACT FREEDOM OF INFORMATION...... 157 CHAPTER EIGHT: WHIST LE BLOWER LEGISLATION...... 161 8.0. INTRODUCTION TO WHISTLEBLOWER LEGISLATION...... 161
8.1. THE ANTI-CORRUPTION COMMISSION ACT...... 163 8.2. PRINCIPLES OF WHISTLEBLOWER LEGISLATION...... 163 8.2.1. Immediate Protection ...... 163 8.2.2. Deterrence...... 164 8.2.3. Compensation...... 164 8.2.4. Co-ordination with the Legal Frame-work...... 164 8.2.5 Who to Report To ...... 164 8.2.6 A Law to Protect Against False Allegations ...... 165 8.2.7 Dealing with Whistleblowers and Managing their Expectations ...... 166 8.2.8. Make the Whistleblower “Last the Distance”...... 166 8.2.9. Avoid Leakage of Information ...... 167 8.3. THE UNITED KINGDOM EXPERIENCE...... 167 8.3.1. Extent of Application...... 168 8.3.2. Internal and Regulatory Disclosures ...... 168 8.3.3. Wider Disclosure...... 169 8.3.4. Legal Advice...... 169 8.3.5. Remedies ...... 170 8.3.6. Assessment of PIDA...... 170 9.0. CONCLUSIONS AND RECOMMENDATIONS ...... 171
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LIST OF ABBREVIATIONS AND ACRONYMS
ACC Anti Corruption Commission AROLS Accountability through Reforms in Legal Systems AU African Union BOZ Bank of Zambia CAS Country Assistance Strategies CIDA Canadian International Development Agency CMAs Central Management Agencies DANIDA Danish International Development Agency DDACC Direct Debit and Credit Clearing DEC Drug Enforcement Commission DFID Department for International Developm ent DPP Director of Public Prosecution ECZ Electoral Commission of Zambia ERTC Electoral Reforms Technical Committee ESAAMLG Eastern and Southern Africa Anti-Money Laundering Group FATF Financial Action Task Force FDD Forum for Development and Democracy FILMUP Financial and Legal Management Upgrading Project FIU Financial Intelligence Unit FODEP Foundation for Democratic Process FPTP First Past and Post System GDU Governance Development Unit GRZ Government of the Republic of Zambia IBA Independent Broadcasting Authority IMF International Monetary Fund IRISH-AID Irish Agency for International Development JICA ` Japanese International Corporation Agency KYC Know Your Customer LPQE Legal Practitioner Qualifying Examinations
5 MISA Media Institute of Southern Africa MLRC Media Law Reform Committee MMD Movement for Multiparty Democracy MPs Members of Parliament MTFF Media Term Financial Framework NAMAC National Movement Against Corruption NCBPGGZ National Capacity Building Programme through Governance in Zambia NCMDS National College for Management and Development Studies NHS National Health Service NIPA National Institute of Public Administration NIRP National Institute Renewal Programme OAG Office of the Auditor General PAC Public Accounts Committee PEMFAR Public Expenditure Management and Financial Accountability Review PIDA Public Interest Disclosure Act PSBC Public Sector Coordinating Bargaining Council PSCAP Public Sector Capacity Building Programme PF Patriotic Front SACCORD Southern Africa Centre for Constructive Resolution of Disputes SADCC Southern Africa Development Coordinating Committee SIDA Swedish International Development Agency SFO Serious Fraud Office TBN Trinity Broadcasting Network UNPD United Nations Development Programme UPND United Party National Development UNIP United National Independence Party USAID United States Agency for International Development ZANA Zambia News Agency ZECH Zambia Electronic Clearing House ZIALE Zambia Institute of Advanced Legal Education ZCCM Zambia Consolidated Copper Mines ZIMA Zambia Independent Media Association ZIMCO Zambia Industrial and Mining Corporation ZNBC Zambia National Broadcasting Corporation
6 ZNTB Zambia National Tender Board ZRA Zambia Revenue Authority
CHAPTER ONE: BACKGROUND TO THE STUDY
1.0 INTRODUCTION In the last few years there has been heightened attention on the high levels of corruption in the various sectors, particularly, the public service sector. This attention is justified in many ways, especially considering that Zambia is ranked, at the time of writing, as the eleventh most corrupt country in the world according to the Transparency International Corruption Perception Index. This perception is attested to by the reports from the Anti-Corruption Commission. For instance, in 1996, there were a total of 633 complaints received by the Commission. Four years later, in 1999, 943 complaints were received, representing an increase of about 49%. However, most of these complaints related to petty corruption. In the last ten years, Zambia has witnessed an escalation in grand corruption. Grand corruption has manifested itself in the public procurement of goods and services, misappropriation of public funds, privatization of state owned enterprises and authorization of development projects, to mention but a few. Cases of grand corruption have been particularly highlighted since the ascendancy of President Levy Mwanawasa to the Presidency. This has resulted in the prosecution of high profile cases before the courts of law. Other forms of corruption that have come under sharp focus include, electoral corruption. The December 20001, Presidential, Parliamentary and Local Government elections were marred by electoral malpractices. As a result, a total of 40 elected Members of Parliament (MPs) had their elections petitioned in the courts of law and the presidential election was also petitioned. A number of studies undertaken in relation to the scourge of corruption have come to the conclusion that the major causes of corruption include the following: (a) poor conditions of service in the public sector; (b) weak internal financial controls and lack of a code of conduct for public service workers; (c) weak enforcement of anti-corruption legislation owing to incapacity of relevant institutions; (d) weak and ineffective watchdog institutions; (e) absence of ethical leadership by political leaders;
7 (f) absence of political will to fight corruption; and (g) lack of freedom of information and whistle blower legislation.
It is significant to note that Zambia has a number of pieces of legislation designed to curb corrupt practices and related malpractices. These laws, it should be stated, create institutions and confer on the institutions, the necessary powers to enable them carry out their mandate. The legislation includes, inter alia, the Anti-Corruption Commission Act, the Penal Code Act, the Zambia National Tender Board Act, the Parliamentary and Ministerial Code of Conduct Act, the Electoral Act and the Prohibition and Prevention of Money Laundering Act. The fight against corruption has in the last number of years also assumed international and regional dimensions. This is evident in the number of treaties and protocols that have been signed by state parties, including Zambia. It is important to note that international treaties do play a critical role in domestic or national policy making. International treaties provide useful tools for Governments to prevent future domestic challenges to their policies because internal political changes will not normally affect a state’s international obligations.
The International Multilateral Instruments on Corruption of recent origin include the following: a.) the Inter-American Convention Against Corruption adopted by the Organization of American States in 1996; b.) the European Convention of the Fight Against Corruption adopted by member states of the European Union in 1997; c.) the African Union on Prevention and Combating Corruption adopted by the heads of state and government of the African Union on 13th July 2003; d.) the SADC Protocol Against Corruption adopted in August 2001; and e.) the United Nations Convention Against Corruption of 2003.
In terms of multilateral and bilateral support for the anti-corruption crusade, the last few years have seen concerted effort on the part of multilateral and bilateral agencies to support and supplement the efforts of the Zambian Government in dealing with corruption. A number of co- operating partners have articulated country assistance strategies, which highlight the type of
8 interventions and support that they will render to the fight against corruption, as well as to the general promotion of democracy and governance in Zambia. For instance, the United States of America Government has through USAID developed the country strategic plan for Zambia for the period 2004-2010. With regard to Democracy and Governance, the strategic plan, through Strategic Objective (S08)-Government is held more accountable – proposes to help Zambia undertake structural reforms necessary to reduce public sector abuse of office and corruption.
1.1.Objectives of the Study The Accountability through Reforms in the Legal Systems (AROLS/Zambia) is a programme being implemented by USAID under the broader ambit of S08 specifically intermediate Report (IR) 8.1 – Rule of Law Enhances Accountability. The programme is part of the wide effort aimed at addressing problems noted in the current legal systems, procedures and structures in Zambia, which may impede the fight against corruption. This study, therefore, is part of AROLS/Zambia and the objectives of the assessment are as follows:
a.) to review and make recommendations on existing legal structures, systems and procedures in order to prevent corruption and ensure successful prosecution; b.) to assess and document best practices in other countries where comparable reforms have taken place; c.) to assess current training needs and training sources for key organizations involved in anti-corruption work; d.) to examine the viability of the concepts and to possibly establish an ombudsman, as well as a complaint hotline, citizen’s oversight programme; and e.) to assess and recommend the most effective ways to co-ordinate with donors and non- Government stakeholders on a national anti-corruption strategy or action plan. 1.2. Methodology The consultants have a desk study approach, with focus on review of literature and secondary data. Field interviews are being conducted mainly to validate the data obtained from the desk study and to garner different views on the aspects of the legal assessment study. Various research and study instruments have been employed and these include content analysis, gap
9 analysis, stakeholder mapping, PEST analysis and trend analysis. The data obtained is mostly qualitative and is being analyzed from a qualitative point of view. For certain aspects of the study e.g. training needs assessment, a representative sample has been selected and a training needs assessment is currently underway. A similar approach of analyzing a selected sample has been applied to the assessment of professional ethics in restructured ministries and Government agencies.
1.3. Expected Outputs The expected outputs from this study and agreed upon by the client are as follows:
i. Draft Report outlining the conceptual framework, historical time line, environmental analysis, best practices, review of the legal systems and institutional analysis; ii. Stakeholders Workshop Report: and iii. Final Report which includes the comments and input from the Stakeholder workshop
1.4. Study Team PATMAT Legal Practitioners were in July 2004 commissioned to undertake an Anti-Corruption Legal Assessment Study on behalf of USAID and the Ministry of Justice. PATMAT Legal Practitioners has put together a study team of four consultants with wide experience in legal procedures and practices, organizational development and social research.
1.5. Limitations of the study The study did not face any major limitations, apart from the problem of securing appointments with some Government agencies. Further, the nature and magnitude of the study, requires access to various documents including national policies. The team faced difficulties in this respect and thus the team had to depend on their ingenuity in obtaining the relevant information.
10 CHAPTER TWO: GOVERNMENTAL FRAMEWORK FOR COMBATING CORRUPTION
2.0 INTRODUCTION There is broad agreement around the world that a comprehensive nexus of laws and policies is a necessary pre-condition for the effective combating of corruption.1 However, good laws and well directed policies are insufficient unless the institutional capacity exists to administer such laws and implement such policies.2 No single government agency acting alone, can effectively tackle corruption: this responsibility falls upon a network of public institutions, each of which plays some part in the deterrence, exposure, investigation or punishment of corrupt practices.3 The fight against corruption is more likely to succeed if both public and private organizations act in concert with the common goal of ensuring that corruption does not subvert good governance. There is, therefore, need for a comprehensive and holistic approach. Past efforts to combat corruption in many countries have failed for a number of reasons:4
a.) lack of political will; b.) corruption could not be addressed by a single agency or individual; c.) the absence of top-level commitment; d.) overly ambitious programmes, piecemeal and uncoordinated reform; e.) over reliance on the law as a vehicle for reform; f.) lack of focus or uneven application; and g.) lack of sustainable institutional mechanism.
The study will proceed to consider the structure of government.
2.1 EXECUTIVE There are three branches of Government; namely, the executive, the legislature and the judiciary. The executive branch is the most influential of the three branches of government in
1 A BRISCOE AND HCL (QUILL) HERMANS, A Review of the Relevant Policies, Laws and Institutional Capacity to Combat Corruption in Botswana (Transparency International in Botswana 1999) P. 66. 2 Id. 3 Id. 4 A.W. CHANDA, National Integrity Systems Country Study Report Zambia 2002, (Published by Transparency International Zambia 2002) at P. 5.
11 Zambia. To begin with, the constitution vests all executive power in the President.5 To this extent, in the exercise of any functions conferred upon him,6 the President unless he otherwise obliges, acts in his own deliberate judgment and is not obliged to follow the advice tendered by any other person or authority.7 The President is elected by universal adult suffrage every five years.8 The President is both Head of State and Government.9 He is also Commander in chief of the Defence Force.10 The President wields enormous power, which is not subject to any meaningful checks and balances. For instance, he appoints most constitutional office holders such as the Chief Justice, Deputy Chief Justice, Judges of the Supreme Court and High Court, eight nominated members of Parliament, the Attorney-General, the Director of Public Prosecutions, the Solicitor General, the Auditor General, the Secretary to the Cabinet, the Chairman and Commissioners of the Electoral Commission, the Commission for Investigations, the Human Rights Commission etc.11 In addition, he appoints senior commanders in the Defence Forces, and the Police Inspector General. The President also appoints heads of and commissioners of the Anti-Corruption Commission and the Drug Enforcement Commission.12 The President is empowered to create and abolish offices in the public service.13 The President enjoys immunity from both civil and criminal proceedings in respect of any act done or omitted to be done during his tenure.14 The immunity from criminal proceedings continues after he vacates office for acts done by him in his personal capacity when he held office of President.15 However, the National Assembly can by resolution lift this immunity if it determines that it would not be in the interest of the state so to do.16 In fact, pursuant to this provision, the National Assembly on 16th July 2002, met and considered the removal of former
5 Article 33 (2) of the Constitution of Zambia. 6 Article 44 of the Constitution defines the functions of the President. He can dissolve the National Assembly, accredit, receive and recognize ambassadors and appoint ambassadors, plenipotentiaries, diplomatic representatives and consuls, pardon and reprieve offenders, negotiate and sign international agreements, establish and dissolve government Ministries and Departments, confer honours on citizens and friends of Zambia and appoint any one as required by the Constitution or any other law. 7 Article 44 (6) of the Constitution of Zambia. 8 Article 34 (1) and 35 (1) of the Constitution of Zambia. 9 Article 33 (1) of the Constitution of Zambia. 10 Id. 11 A.W. Chanda, Supra note 4, at P. 11. 12 Id. 13 Article 61 (1) of the Constitution of Zamb ia. 14 Article 43 (1) of the Constitution of Zambia. 15 Article 43 (3) of the Constitution of Zambia. 16 Id.
12 President Chiluba’s immunity.17 After a lengthy and heated debate, the National Assembly passed a resolution, removing Chiluba’s immunity.18 Chiluba’s bid to have the National Assembly’s decision to lift his immunity quashed was dismissed by both the High Court and the Supreme Court on 30th August 2002 and 19th February 2003, respectively. In delivering the judgment, the Supreme Court observed that immunity can be removed for the purpose of making a former President amenable to the criminal jurisdiction of the court. Amenability to criminal jurisdiction envisages allegations of criminal conduct.
The Constitution provides for the impeachment of the President by the National Assembly where he has committed any violation of the Constitution or any gross misconduct.19 The process may be initiated by way of written notice being given to the Speaker signed by not less than one third of all the members of the National Assembly on a motion alleging that the President has committed any violation of the Constitution or any gross misconduct.20 The notice must contain particulars of the allegations against the President and must propose the establishment of a tribunal to investigate the allegations.21 The Speaker is then obliged, if parliament is then sitting or has been summoned to meet, to table the motion for consideration within seven days.22 If Parliament is not sitting, the Speaker must summon the National Assembly within twenty one days of the notice.23 The motion to proceed with an investigation must be supported by the votes of at least two thirds of all the members of the National Assembly.24 Once Parliament has passed the motion, the Chief Justice must appoint a judicial tribunal comprising a Chairperson and at least two other members selected by the Chief Justice from among persons who hold or held high judicial office.25 The tribunal is required to report its findings to the National Assembly. If the tribunal reports to the National Assembly that the tribunal finds that the particulars of any allegations against the President have not
17 Chiluba vs Attorney-General Appeal Number 125 of 2002 at P. 6. 18 Id at P. 7. 19 A.W. Chanda, Supra note 4, at 11. 20 Article 37 (1) of the Constitution of Zambia. 21 Id. 22 Article 37 (1) (a) of the Constitution of Zambia. 23 Article 37 (1) (b) of the Constitution of Zambia. 24 Article 37 (2) of the Constitution of Zambia. 25 Article 37 (3) (a) of the Constitution of Zambia.
13 been substantiated, then no further steps are taken.26 However, if the tribunal reports that the particulars of any allegation have been substantiated, the National Assembly may on motion supported by the votes of not less than three quarters of all of its members resolve to remove the President from office.27 In that event the President must vacate office on the third day following the passage of the resolution.28 The impeachment process has been criticized as being so cumbersome and rigid, that it is almost impossible to operate in practice. It has thus been suggested that there is need for a simplified procedure capable of achieving, whenever necessary the desirable goal of removing a President from office in specified circumstances. Whereas, it is acknowledged that the power to impeach is intended to check presidential excesses, it is a power that should not be exercised lightly and hence the large majorities required for the relevant motions to succeed. However, if a President abuses his power, or engages in corruption, albeit, he may not be prosecuted because of the immunity, he can be impeached by Parliament.29 In 2001, there was an abortive attempt by the National Assembly to impeach President Chiluba on allegations of corruption, abuse of office and violation of the Constitution.30 A motion signed by 65 MPs calling for the setting up of a Judicial Tribunal to investigate the President was presented to the Speaker.31 Parliament was then in recess. The Speaker did not convene Parliament within 21 days as required by the Constitution.32 In fact, Parliament remained in recess for seven months.33 This is classic example of how well intentioned provisions of the Constitution can be subverted.
On 13th August 2003, former Vice-President Enoch Kavindele raised a motion for impeachment of President Mwanawasa over allegations of corruption.34 Kavindele alleged that President Mwanawasa gave a contract to his relation in South Africa to bring in 30,000 metric tones of maize, which the government had to pay.35 The bid failed. Almost a year later, Kavindele apologized in the National Assembly for having made untrue statements. He told a hushed
26 Article 37 (4) of the Constitution of Zambia. 27 Article 37 (5) of the Constitution of Zambia. 28 Id. 29 A.W. Chanda, Supra note 4, at P. 12. 30 Id. 31 Id. 32 Id. 33 Id. 34 Zambia Daily Mail, 7th August 2004, “Sorry Kavindele Tells Levy”. 35 Id.
14 National Assembly that it was his desire to reconcile and work with the President and pledged to support and work with his party and the government.36
2.2 LEGISLATURE Zambia’s Constitution does not delineate a Westminster Parliamentary system of Government. Instead it is a mixture of Presidential and Parliamentary systems with executive links to the parliament carried out predominantly by the Ministers who are selected by the President to serve in the Government. The legislative power of the Republic is vested in Parliament, which comprises the President and the National Assembly.37 The National Assembly consists of 150 elected members, 8 nominated members and the Speaker.38 The Cabinet and Deputy Ministers are collectively accountable to the National Assembly.39 Among the ways in which the National Assembly holds the executive accountable are as follows:40 i. through questions put to ministers by members of Parliament;41 ii. through motions submitted by back benchers, which give members an opportunity to debate government policy on matters of public concern; and iii. through reviews of performance and operations of government ministries and departments, state owned enterprises and other public bodies conducted by house and sessional committees.
2.2.1. Committee System Most of the business of the house is transacted through Ministerial, select and Ad hoc Committees. There are three types of committees; namely;42 a General purposes committee, namely: i. Public Accounts Committee; ii. Committee on delegated legislation; and iii. Committee on government assurances b House Keeping Committees, namely:
36 Id. 37 Article 62 of the Constitution of Zambia. 38 Article 63 of the Constitution of Zambia. 39 Article 51 of the Constitution of Zambia. 40 A.W. Chanda, Supra note 4, at 16. 41 Ministers are given 21 days notice of the questions. 42 A.W. Chanda, Supra note 4, at P. 70-71
15 i. Standing Orders Committee; ii. Committee on Privileges; and iii. Absence and Support Services.
c. Ministerial Related Committees: i. Committee of Agriculture and Lands; ii. Economic Affairs and Labour; iii. Communications, Transport, Works and Supply; iv. Energy Environment and Tourism; v. Health, Community Development and Social Welfare; vi. Information and Broadcasting Services; vii. National Security and Foreign Affairs; viii. Education Science and Technology; ix. Legal Affairs, Governance, Human Rights and Gender; and x. Sport Youth and Child Development.
2.2.2. Public Accounts Committee The Public Accounts Committee (PAC), is one of several select committees appointed under the standing orders of the National Assembly. Its membership is representative of the relative representation in the National Assembly.43 Traditionally and in most sessions of Parliament, the Chairperson of the PAC has been the leader or a prominent member of one of the opposition parties represented in the National Assembly.44 This is not the case presently. The Chairperson of PAC is an independent Member of Parliament. The main function of PAC is to examine critically the performance of accounting officers of Government ministries and departments, as well as chief executive officers of parastals, whose accounts are audited or reported on by the Auditor General.
43 The composition of the current Public Accounts committee is as follows:Hon. J.C. Kasongo (Independent); Hon. F.Z Simenda (UPND); Hon. R.K. Chulumanda (MMD); Hon. P. Nawa (FDD); Hon. J.S. Muleya (UPND); E.M.M. Musonda(PF); Hon. C.M Sampa (MMD) and Hon. P.M. Zulu (UNIP). 44 The Chairperson of the Public Accounts Committee is Joseph Kasongo MP for Bangwelu. The Committees strength lies in the fact that it is customarily headed by a member of the opposition.
16 PAC can also request for any information other than ministerial files and minutes.45 The Committee can also summon any controlling officer, including the Minster of Information to appear before it to explain any identified instance of abuse of public funds.46 The findings and recommendations of PAC for disciplinary action in the event of mismanagement of funds are presented to the National Assembly.47 The Public Accounts Committee has not fulfilled its mandate to hold the Government financially accountable. The delay in making government financial reports available to the Auditor General and subsequently to the National Assembly has many implications for the performance of PAC.48 Thus, by the time PAC conducts its won inquiry, it is well into the second financial year after the expenditure has taken place. In order for PAC to operate effectively, there is need for a number of measures to be put in place. Firstly, since PAC heavily depends on the Auditor General’s report, there is need for the Auditor General’s report to be produced promptly. Secondly, the controlling officers (Permanent Secretaries), should be held directly responsible for complying with the Finance (Control and Management) Act.49 Thirdly, the role of the PAC is not sufficiently publicized. This is mainly because sittings of all select committees of the National Assembly are held in private and the reports are not published or readily available to the media. There is need to publicize the role of the PAC.
2.2.3. Budget Oversight A major role that the National Assembly plays relates to controlling the raising and spending of public funds.50 At the beginning of each financial year, the government formulates a proposal – a budget together with annual estimates of revenue and expenditure – that is to say, how it means to raise the money that it needs to spend during the course of that financial year.51 The National Assembly sitting as the committee of supply, debates the proposed expenditure. To this extent, the Constitution empowers the National Assembly to approve the budget.52 The
45 M.M Munalula, Government Watchdog Institutions. A Position Paper on the Effectiveness of Watchdog Institutions in Zambia (Published for Transparency International August 2002) P. 35. 46 Id. 47 Id, 48 Id at P. 47. 49 Chapter 347 of the Laws Zambia. 50 A.W. Chanda, Supra note 4, at P. 17. 51 M.M. Munalula, Supra note 44, at P. 42. 52 Article 117 (2) of the Constitution of Zambia.
17 approved estimates of expenditure are then included in an Appropriation Bill.53 However, there are certain categories of public expenditure that do not require legislative approval.54 The expenditure charged on the general revenues of the republic do not require approval in the National Assembly.55 These include:56 salaries and allowances of the Chief Justice; Deputy Chief Justice, Judges of the High Court and Supreme Court, the Attorney-General, Investigator General, Director of Public Prosecutions, Secretary to the Cabinet and the Auditor-General. Debt charges for which the government is liable do not also require legislative approval.57 Further, donor funds and loans do not require legislative approval. Yet in the year 2004 donor funds account for 36.5% of the national budget. Any additional expenditure is authorised through a supplementary expenditure budget.58
Parliamentary participation in the formulation of the budget is poor. A meeting called by the Southern African Centre for Constructive Resolution of Disputes (SACCORD), on 25th July 2004, invoked old fears that Parliamentarians in Zambia are still far from being effective participants in the governance and disbursement of national resources.59 As the debate on the “Role of Parliament in Enhancing Accountability in Public Institutions”, progressed, it become evident that most of the nation’s elected and nominated members of Parliament (MPs) are far from taking active participation in the budgeting process.60 The MPs expressed concern that parliamentarians were not active participants in the budgeting process, as most of the work was done by Cabinet and in particular the Minister of Finance.61 Parliament, to date, remains a rubber stamp institution that lacks genuine participation in formulation of the national budget. However, during the deliberation of the 2004 budget the National Assembly succeeded in altering the budget presented by the executive branch.
53 Id. 54 A.W. Chanda, Supra note 4, at P. 17. 55 Article 117 (3) of the Constitution of Zambia. 56 Article 119 (5) of the Constitution of Zambia. 57 Article 120 of the Constitution of Zambia. 58 Article 117 (4) of the Constitution of Zambia. 59 National Mirror August 7-13 2004 “Parliamentarians call for Role in Public Accounting” . 60 Id. 61 Id.
18 2.2.4. Government Borrowing Zambia’s external debt is approximately US 6.7 billion.62 The immediate practical implication of this huge debt stock is that a lot of resources are being directed towards debt servicing as opposed to developing the country. This debt stock has accumulated over a period of time. Zambia moved from external debt stock of US654 million in 1970, a few years after independence to US1.7 billion by 1975, US 3.3 billion by 1980, US 4.6 billion by 1985 and US 7.2 billion by 1990.63 As a result of some cancellations, the external debt moved downward to about US 6.7 billion by the turn of the new millennium and that is what it stands today. 64The debt problem is attributed to the Keynesian economic theory that justified the Zambian Government’s involvement in the economy. The theory simply stated stipulates that: “borrow to keep development moving, repay from taxes earned from an improved economy”.65 In real terms, the current debt stock was precipitated in the late 1970’s by three major factors, namely:66
a) decline of earnings because of decrease in copper prices; b) increase of expenses because of rise in petrol prices; and c) heavy expenses incurred in supporting the liberation struggles in Southern Africa. In addition, the hosting of refugees and internally displaced persons compounded the situation.
Zambia’s external debt portfolio suggests that successive Governments have generally not only borrowed excessively and imprudently, but have also managed the external debt stock, ineffectively. The problem of the external debt stock is compounded by domestic debt, which has had a very destabilizing effect on the economy. In order to arrest the domestic debt, the government has put in place the following measures:67
a.) verification of all domestic debt and arrears;
62 According to a presentation made by Hon Mbita Chitala Deputy Minister of Finance and National Planning held on 25 June 2003, the external debt stood at US 6. 797 812 000 as at June 4 2003. 63 Peter Henriot, “The Challenge of Improving Zambia’s Debt Contraction Process. A Review of the Special Jubilee Zambia Report.” A paper presented to a Jubilee 2000 public discussion held on 25th June 2003. 64 Id. 65 Id. 66 Id. 67 M. Chitala, Supra note 61, at P. 4.
19 b.) prevention of built up of unsustainable debt and service obligations in the future using commitment control systems; and c.) to restore orderly relations with suppliers with a view to settling domestic arrears.
The principal legal instruments for the contraction of loans by Government may be summarized as follows:
i. the Loans and Authorization Act68 - this Act gives the Minister discretion to borrow as he considers fit. Thus, the oversight role of the National Assembly is limited and ineffective. It is limited to prescribing through a statutory instrument, the ceilings on the amount to be borrowed. Worse still, if the National Assembly is not sitting, the President can authorize borrowing. ii. the Treasury Bills Act69 - the Government is empowered to issue Treasury Bills. This is the principal form and means of borrowing by Government. iii. the General Loan and Stock Act.70 The Government is empowered to raise loans through the issuance of debentures. iv. the Loan Act71 - this Act which was enacted on 24th April 1931, empowered the Government of the day to borrow four million five hundred thousand Kwacha to undertake specified civil works which are listed in the Act. The public disclosure of the use to which the monies were put ensured and assured transparency and accountability in the use of the public funds. v. The Rhodesia Railways Loans Guarantee Act72 - it is a little wonder why this Act is still on our statute books this day and age. In any event, this Act empowered Government to co- sign with the Government of Southern Rhodesia to guarantee loans to Rhodesia Railways.
The preceding legal framework is intended to regulate and authorize Government borrowing. Unfortunately, it is a weak form of regulation. Significantly, the National Assembly does not
68 Chapter 366 of the Laws of Zambia. 69 Chapter 348 of the Laws of Zambia. 70 Chapter 350 of the Laws of Zambia. 71 Chapter 35 of the Laws of Zambia. 72 Chapter 369 of the Laws of Zambia.
20 directly control the extent to which the country can be exposed to debt. The power to contract debt has been delegated to the Minister of Finance. As a result, contraction of debt and debt servicing, does not require prior or direct parliamentary sanction or involvement. It is for the preceding reasons that Jubilee Zambia73 is urging the following:74
(a) a Debt Commission or oversight body should be set up as one of the commissions under the Constitution. This will ensure that the body enjoys the highest level of authority; (b) the National Assembly should have among its constitutional powers a clear power to approve all loans prior to contraction. This will entail that bills relating to loans will be gazetted and made available for public scrutiny before they are enacted; (c) debt service should not take priority over basic human rights. The constitution should make debt service subject to availability of resources and limited to a specified percentage of the budget; (d) borrowing should be treated as a constitutional issue because of its impact on development as a whole. Provisions in the Constitution should indicate that debt should be incurred for legitimate public investment or as a last resort; (e) watchdog institutions such as the Auditor General and the Attorney General, must have clear mandatory authority over the borrowing process; (f) the public should have a right to know and question all borrowing before loan agreements are signed. This right should be incorporated in the Bill of Rights; and (g) all laws relating to borrowing should be detailed in one Act of Parliament and authorised by the Constitution.
2.2.5. Ratification The National Assembly has power to ratify appointments made by the President of certain constitutional office holders, such as Judges of Superior courts, the Director of Public Prosecutions, the Solicitor General, the Attorney General, the Auditor General and the Investigator General.75 In addition, the National Assembly is required to ratify the appointments
73 Jubilee Zambia was launched in 1998, to educate the citizens about the debt situation and to lobby creditors and international institutions about the need to cancel debts. 74 75 A.W. Chanda, Supra note 4, at P. 16.
21 of the Chairman and Commissioners of the Electoral Commission, the Anti-Corruption Commission, the Human Rights Commission, members of the commission for Investigations, the Governor and Deputy Governor of the Bank of Zambia.76 Through this process of ratification, it is intended that those appointed to the various positions, have the requisite qualifications, experience and integrity. However, if a ratification is refused by the National Assembly, the President may appoint another person to the office in question.77 If the National Assembly refuses to ratify the second appointment, it shall be invited to ratify an appointment for the third time, but the third appointment shall take effect irrespective of whether such ratification is refused or delayed for a period of more than 14 days.78 Thus, the preceding provision makes the intention to constrain the President from abusing his power of appointment through ratification, nugatory. Although Zambia is a Constitutional democracy, with a National Assembly carrying out separate and specifically defined legislative functions and roles, the National Assembly plays a secondary role in the policy making, oversight and representative processes.79 Since the advent of multi-party democracy in 1991, Zambia’s independently elected President has been from the same political party – the Movement for Multi Party Democracy (MMD) which has a majority in the National Assembly. This has resulted in a situation in which party discipline has been given priority over separation of powers between the three branches of government. This has put the National Assembly in a somewhat secondary role to the executive in critical areas such as the legislative process, the budget process, legislative oversight and establishment of policy principles.80 It must be stressed that although the executive and legislature are designed to be linked and complimentary, certain checks and balances must be developed in order for the system to avert commission of excesses.
76 Id. 77 Article 44 (4) (b) of the Constitution of Zambia. 78 Article 44 (4) (c) of the Constitution of Zambia. 79 J.P Ketterer, H.C. Ngaba, Sr. A Ponga and J.B Shesfer II “Reform of the National Assembly for Zambia, Agenda for 21st Century Parliament” (Report to the National Assembly of Zambia from the State University of New York supported by the United States Agency for International Development, November 1999) at P.5 80 Id
22 2.3 THE JUDICIARY In a Constitutional democracy, courts play a key role as independent and impartial arbitrators in promoting the rule of law.81 Constitutional democracy demands that all those who are entrusted with the exercise of public power should do so in a manner consistent with the principles of legality.82 It is the duty of the courts to ensure that there is compliance with laid down rules and procedures.83 It is important in this regard, therefore, that the judiciary is autonomous. The autonomy of the judiciary also in turn ensures the separation of Judiciary from executive and legislature. The Zambian Constitution is perhaps among the few constitutions in the Commonwealth which does not expressly vest the judicial power in the courts.84 Notwithstanding, the Judicature is created under part vi of the Constitution. The hierarchy of the Judicature is as follows:85
a.) the Supreme Court of Zambia; b.) the High Court for Zambia; c.) the Industrial Relations Court; d.) the Local Courts; and e.) such lower courts as may be prescribed by an Act of Parliament.
The judicature is administered in accordance with the Judicature Administration Act.86 The passage of the Judicature Administration Act was intended to strengthen the autonomy ad independence of the Judiciary. Thus, the Judicature Act provides for the separate administration of the courts from the Ministry of Justice and yet at once retain the power of the Judicial Service Commission to appoint Judicial officers. The Judicature is headed by the Chief Justice. However, the day to day management of the affairs of the Judiciary is undertaken by the Chief Administrator, who is appointed by the President on recommendation of the Judicial Service Commission and subject to ratification by the National Assembly. The Chief Administrator is the controlling officer and is therefore at the same level as a Permanent
81 Mwanakatwe Constitutional Review Commission Report 16th June 1995 at P. 143. 82 Id. 83 Id. 84 Id at P. 143. 85 Article 91 (1) of the Constitution of Zambia. 86 Cap. 24 of the Laws of Zambia.
23 Secretary. The funds of the Judicature consist of such monies as may be appropriated by Parliament for purposes of the Judicature.87 The Chief Administrator may accept money by way of grants.88 Capital projects have been largely funded by donor funds. Currently, NORAD is funding the construction of a subordinate court complex in the vicinity of Lusaka Central Prison.
2.3.1 Qualifications and Appointment of Judges The Supreme Court, which is the final court of appeal in Zambia, comprises nine Judges appointed by the President, subject to ratification by the National Assembly.89 The Chief Justice and his Deputy who are also members of the Supreme Court are appointed by the President subject to ratification by the National Assembly.90 To qualify for appointment as a Supreme Court Judge, one must have practiced law for at least fifteen years after admission to the bar.91 The High Court has an establishment of 30 Judges with 25 in post. High Court Judges are appointed by the President on the recommendation of the Judicial Service Commission and are subject to ratification by the National Assembly.92 To qualify as a Judge, one must have practiced for at least ten years after admission to the bar.93 However, a person who does not possess the requisite experience may be appointed to any of the offices, if the President or the Judicial Service Commission as the case may be, is satisfied that he is worthy, capable and suitable to be appointed as such.94 Internationally, there are no generally agreed procedures for the appointment and removal of Judges.95 Different countries have different rules which allocate a greater or lesser role in such decisions to the three principal organs of the state: the legislature, the executive or the Judiciary itself.96 The Zambian procedure allocates this responsibility to the President and the National Assembly. So long as the public has confidence in the impartiality of the procedures, there is no compelling reason to change them.97
87 M.M Munalula, Supra note 44, at P. 21. 88 Id. 89 A.W. Chanda, Supra note 4, at P.22. 90 Article 93 (1) of the Constitution of Zambia. 91 Article 97 (1) (b) (1) of the Constitution of Zambia. 92 Article 95 (1) of the Constitution of Zambia. 93 Article 97 (1) of the Constitution of Zambia. 94 Article 93 (2) of the Constitution of Zambia. 95 A. Briscoe and H.C.L (Quill) Hermans, Supra note 1, at P 85. 96 Id. 97 Id.
24
2.3.2. Independence of the Judiciary The Constitution provides that Judges, Magistrate and Local Justices shall be independent, impartial and subject only to the Constitution and the law.98 Furthermore, the Constitution stipulates that the Judicature shall be autonomous.99 The Judicature Administration Act, is aimed at reinforcing the independence of the Judiciary. In order to safeguard the independence of the Judiciary, Magistrates, Local Court Justices and supporting personnel are appointed by the Judicial Service Commission, an independent body chaired by the Chief Justice and is established by the Constitution.100 The tenure of superior court Judges is protected by the Constitution. The Constitution provides that a superior Judge may be dismissed only for inability to perform the functions of office, whether arising from infirmity of body or mind, incompetence or misbehavior.101 At any rate, the dismissal can only be effected after a judicial tribunal consisting of three persons appointed by the President after investigations so recommends.102 However, Magistrates and Local Court Justices can be removed from office by the Judicial Service Commission. To this extent no elaborate procedures are stipulated. The retirement age for superior court Judges is fixed at sixty-five years.103 However, the President may extend a Judge’s tenure for a period up to seven years after attaining retirement age.104The practice of judges to continue to serve as Judges on contract employment by means of a renewable contract determined by the President is incompatible with Judicial independence. It may comprise Judicial independence as a judge nearing retirement may wish to please the executive branch so that he can have his tenure extended.105
2.3.3 Judicial Review One of the principal objectives of Administrative law, is to provide a control over the executive branch of government by an external agency cogent enough to prevent the commission of injustice to an individual, but at once leaving the administration sufficient freedom to carry on
98 Article 91 (2) of the Constitution of Zambia. 99 Article 91 (3) of the Constitution of Zambia. 100 Article 123 of the Constitution of Zambia. 101 Article 98 (3) of the Constitution of Zambia. 102 Article 98 (3) (4)of the Constitution of Zambia. 103 Article 98 (1) of the Constitution of Zambia. 104 Article 98 (1) (b) of the Constitution of Zambia. 105 A.W. Chanda, Supra note 4, at P. 13.
25 the business of government. The place of this external agency has been filled by the courts. However, the courts of law do not enjoy a roving commission to scrutinize, reverse or approve any and every decision of an administrative agency. Judicial review provides the means by which judicial control of administrative action is exercised. The subject matter of Judicial review is usually a decision made by some person or body or else a refusal by him or her to make a decision. The Supreme Court of Zambia in the decided case of Zambia Democratic Congress vs The Attorney-General 106 outlined the scope of Judicial review. The remedy of Judicial review is not concerned with reviewing the merits of the decision, but rather the decision making process itself. The primary purpose of Judicial review is to ensure that an individual is given a fair treatment by the authority to which he has been subjected and that it is not part of that purpose to substitute the opinion of the judiciary or of individual judges, for that of the authority constituted by law to decide the matters in question. The grounds for judicial review are classically categorized as “illegality”, “procedural impropriety” and irrationality”. Firstly, illegality as a ground of Judicial review includes acting ultra vires or “outside” the governing legislation, errors of law, failing to take relevant factors into account and taking irrelevant factors into account. Secondly, procedural impropriety as a ground of Judicial review includes violating procedural requirements imposed by the governing legislation. Thirdly, under irrationality, the courts interfere with the decisions only if they are so unreasonable, that no reasonable authority properly directing its mind would have made them. Among the remedies the courts can issue are writs of mandamus (directing a public body or official to act in a particular manner), certiorari (quashing or nullifying a decision), declaration (setting out the rights of the parties), injunction (mandatory or prohibitory) and damages (monetary compensation).
The Constitution empowers the High Court to review actions of public officials which violate the bill of rights.107 Thus, public officials are required to act in accordance with the Constitution and the law, otherwise their actions may be declared invalid or ultra vires by the courts of law. The courts of law have dealt with many cases involving the President, Ministers and other executive officials where plaintiffs have alleged abuse of power by the officials concerned.108 Courts of
106 SCZ Judgment Number 37 of 1999. 107 Article 93 (1) of the Constitution of Zambia. 108 A.W. Chanda, Supra note 4 at P. 23.
26 law also have the power to invalidate legislation which is in conflict with the Constitution.109 The following cases illustrate instances where the Judiciary has exercised Judicial supervision over the executive branch of government. In Mulundika and Others vs The People, 110 the Supreme Court declared invalid Sections 5 and 7 of the Public Order Act,111 which gave the police overbroad discretion to allow or not allow public assemblies, because the exercise of the discretion violated the freedoms of expression and assembly guaranteed under articles 20 and 21 of the Constitution. In another case, the Attorney-General and Another vs Sondashi,112 the Supreme Court dismissed an appeal by the Government against a High Court Judgment quashing a decision of the National Assembly to suspend Sondashi because of some remarks he made to the press in the wake of the abortive coup attempt of October 1997. The Supreme Court held that Sondashi was entitled to exercise his freedom of expression. Recently, in the case of Clarke vs Attorney-General,113 the High Court quashed a deportation order arising out of a satirical article authored by Roy Clarke about the political leadership. In spite of the relative autonomy enjoyed by the Judiciary, the Judiciary has been operating under very difficult conditions. Poor funding, uncompetitive conditions of service and a severe shortage of well trained staff have undermined judicial independence.114 The Judiciary does not have financial autonomy. In most cases it has only been able to carry out operations because of the court fees which it retains.115 The Judiciary has not been able to recruit sufficient qualified staff because of the poor conditions of service.116 Judges, Magistrates and Local Justices are poorly remunerated and their conditions of service are linked to the civil service. They work in deplorable conditions thereby making them highly vulnerable to corruption.117 There are a number of constraints faced in the prosecution of corruption cases in courts of law. First, the major problem confronting the Judicial system in processing corruption cases is a shortage of human resources. The Judicial system is unable to recruit or retain the services of sufficient numbers of suitably qualified magistrates. The basic constraint is that salaries on the bench compare unfavorably with those available in the private sector. Secondly, there are excessive
109 Id. 110 1995-1997 ZR P. 20. 111 Chapter 113 of the Laws of Zambia. 112 SCZ Number 6 of 2003. 113 2004/HP/0003 (unreported). 114 A.W. Chanda, Supra note 4, at P. 24. 115 Id. 116 Id. 117 Id.
27 delays in the processing of cases through the courts of law. Court proceedings are incredibly slow and laborious. Thirdly, accused persons tend to employ deliberate delaying tactics. Lastly, as has been demonstrated in many countries around the world, corruption cannot be effectively combated if the courts do not function in an efficient, independent, consistent and expeditious manner.118
B. NON-GOVERNMENTAL STAKEHOLDERS PARTICIPATION IN COMBATING CORRUPTION
2.4 CIVIL SOCIETY In Western Political Philosophy, it was not until around 1800 that civil society and the state were seen as different entities.119 From then on, however, civil society has never been considered to be synonymous with the state and it has been usually considered as a separate entity from the state.120 In other words, civil society may be defined to be what is not the state and outside the state. One of the most important theorists of the notion of civil society was Hegel.121 Hegel located civil society between family and the state. In this position, civil society is a mosaic of private individuals, classes, groups, and institutions whose transactions are regulated by civil law and as such are not directly dependent upon the state itself.122 It is noteworthy that there is no necessary identity or harmony among the various elements of civil society. Civil society is the area where various interests can be expressed. Civil society plays a significant role in building civic knowledge, attitudes and behaviors necessary to promote change and act as a counter balancing force in countries such as Zambia, with a weak opposition.123 Thus, civil society can be an important check on the arbitrary exercise of power by Government. However, this check can operate only if the Government provides information on its actions.124 Citizens must have a convenient means of lodging complaints and be
118 A. Briscoe and H.C.L. Quill Hermans, Supra note 1, at P. 88. 119 C. Alden and K Hirano (eds), “Japan and South Africa in a Globalizing World”, (Ashgate Publishing Limited 2003) P. 216. 120 Id. 121 Id. 122 Id. 123 Government of the Republic of Zambia, Governance, National Capacity Building Programme for Good Governance in Zambia, 31st March 2000. 124 S.R. Ackerman, “Corruption and Government – Causes, Consequences and Reform” (Cambridge University Press 1999) at P. 162.
28 protected against possible reprisals.125 There are two basic routes for public pressure: collective complaints by groups of citizens concerning general failures of Government and objections raised by particular individuals against their own treatment at the hands of public authorities.126 Both collective and individual routes can help spur reform of Government structures.127 At the international level, there is broad agreement on the need for participation of civil society in the fight against corruption. For instance, the SADC Protocol Against Corruption urges that each state should adopt measures, which will create, maintain and strengthen mechanisms to encourage participation by the media, civil society and non- Governmental organization in an effort to prevent corruption.128 Furthermore, parties to the African Union (AU) Convention on combating corruption undertake to allow and encourage the full participation of the media and civil society at large in the fight against corruption.129 The AU Convention also urges state parties to allow and encourage civil society and media organizations to hold Governments to the highest levels of transparency and accountability in the management of public affairs.130 Similarly, the United Nations Convention Against Corruption, urges each state party to take appropriate measures within its means to promote the active participation of individuals and groups outside the public sector, such as civil society, non-Governmental organizations and community based organizations in the prevention of the fight against corruption and to raise public awareness regarding the existence, causes and gravity of the threat posed by corruption.131 According to the United Nations Convention Against Corruption, this participation should be strengthened by measures such as:132
a.) enhancing the transparency of and promoting the contribution of the public to decision making process; b.) ensuring that the public has effective access to information; c.) undertaking public information activities that contribute to non-tolerance of corruption as well as public education programmes, including school and university curricula;
125 Id. 126 Id. 127 Id. 128 Article 4 (1) of the SADC Protocol Against Corruption. 129 Article 12 (1) of the African Union Convention on Preventing and Combating Corruption. 130 Id Article 12 (2). 131 Article 13 of the United Nations Convention Against Corruption. 132 Id.
29 d.) respecting, promoting and protecting the freedom to seek, receive, publish and disseminate information concerning corruption. That freedom may be subject to certain restrictions, but these shall only be such as are provided for by law and are necessary:
(i) for respect of the rights or reputations of others; and (ii) for the protection of national security or public order or of the health or morals.
Furthermore, the United Nations Convention Against Corruption, urges each state party to take appropriate measures to ensure that the relevant anti-corruption bodies are known to the public and access to such bodies is provided where appropriate, for the reporting, including anonymously, of any incidents that may be considered to constitute an offence in accordance with the convention. In the Zambian context, the Societies Act,133 provides the legislative framework for the operation of non-Governmental organizations, community based organizations and churches. A few organizations are created under the Companies Act,134 as Companies Limited by guarantee, while others are formed under the Land (Perpetual Succession) Act.135 The leading organizations involved in fighting corruption are Transparency International Zambia, Integrity Foundation, Afronet, National Movement Against Corruption (NAMAC) Foundation for Democratic Process (FODEP), and the Foundation for Corruption Awareness and the Partnership Forum.136 Civil Society faces a number of constraints in its efforts to make Government accountable and transparent.137 Firstly, the absence of a freedom of information Act means that the public can only access information that the public authorities choose to release.138 Secondly, the relationship between Governments and critical parts of civil society has been characterized by tension.139 Thirdly, the interaction between civil society and parliament has been minimal because until recently, Parliament has been a closed shop.140
133 Chapter 119 of the Laws of Zambia. 134 Chapter 388 of the Laws of Zambia. 135 Chapter 186 of the Laws of Zambia. 136 A.W. Chanda, “National Integrity Systems Country Study, Report Zambia 2002”, (Transparency International Zambia 2002) P. 52. 137 Id 52. 138 Id. 139 Id. 140 Id.
30
2.5 MEDIA Freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every person.141 Freedom of expression is vital for the exposure of corruption, human rights violations, economic mismanagement and abuse of political power.142 Freedom of expression serves four broad purposes.143 Firstly, it helps an individual to attain self-fulfillment. Secondly, it assists in the discovery of truth. Thirdly, it enhances the capacity of an individual to participate in a democratic society. Lastly, it provides a mechanism by which to establish a reasonable balance between stability and social change. The importance of freedom of expression can also be gleaned from the fact that societies that advance economically, are invariably those that permit large measures of freedom of expression. In Zambia, freedom of expression is protected by the Constitution.144 The Constitution provides that except with his or her own consent, a person shall not be hindered in the enjoyment of his or her freedom of expression, that is to say, freedom to hold opinions without interference, freedom to impart and communicate ideas and information without interference whether the communication be to the public generally or to any person or class of persons and freedom from interference with his or her correspondence.145 The Constitution goes on to provide that subject to the provisions of the Constitution, a law shall not make any provision that derogates from the freedom of the press.146 It is clear from the preceding analysis that freedom of the media is a constituent of freedom of expression. The media is considered as one of the strongest guarantees of freedom, which exist in a democracy. The media ensures that political figures do not overstep the limits of their powers. However, in order for the media to play a meaningful role it must have freedom to gather information and communicate such information and ideas to the public.147 Thus, the role of the media in ensuring good governance cannot be over emphasized.
141 Handside v United Kingdom A 24 Para 49, 1926, the European Court of Human Rights. 142 G.B.B. Ayittey, Africa Betrayed, (Transitional Publishes Inc. New York 1991) at P. 205 143 Indian Expression Newspaper (Bombay) v Union of India A.R. 1986 SC 515. 144 Article 20 of the Constitution of Zambia. 145 Id. 146 Article 20 (2) of the Constitution of Zambia. 147 A.W. Chanda, “The Role of the Media in Promoting Democracy, and Human Rights”, Southern African Human Rights Review, 4th October 1999 at P. 2.
31
2.5.1. Media Ownership Zambia has both Government owned and privately owned electronic and print media.148 The government owns the Zambia National Broadcasting Corporation (ZNBC) which consists of a television station, Radio 1,2 and 4. Coverage of ZNBC extends to most parts of the country.149 Also owned by the Government are the Zambia News Agency (ZANA), Zambia Daily Mail, Sunday Mail, Times of Zambia and Sunday Times of Zambia. Privately owned newspapers include the Post Newspapers (Daily), the National Mirror (Weekly) the Monitor/Digest. Privately owned TV stations are Multi-Choice (Zambia) Limited and Trinity Broadcasting Network (TBN). 150 Both of these have little if any local content and do not broadcast local news.151 There are several privately owned radio stations, including Radio Phoenix, Radio Five FM, Radio Christian Voice, Radio Choice, University of Zambia Radio, Radio Chengelo, Radio Maria, Yatsani Radio, Radio Chikuni, Mazabuka Community Radio Station, Radio Lyambai, Radio Chikaya and Radio Breeze.152
2.5.2. Media Law Reforms In the run up to the 1991 Presidential and Parliamentary elections, the lack of press freedom was one of the key political issues raised by the main opposition party at the time, the MMD.153 As a result, shortly after ascending to power, the government constituted a Media Law Reform Committee (MLRC) comprising representatives of a broad section of the Zambian media. The purpose of establishing the committee was to recommend to Government ways in which the media could be reformed to advance press freedom and the democratic process. After its inquiry, the committee identified five critical areas which required the attention of Government as follows:154
a.) the need for constitutional and comprehensive legal reform;
148 A.W. Chanda, Supra note 18, at P. 49. 149 Id. 150 Id. 151 Id. 152 Id. 153 Hon. D. Patel MP soon after he was appointed Minister of Information and Broadcasting Services organized the “National Seminar on Democracy and the Media in Zambia – the way Forward”, held between 2nd – 4th October 1992. 154 The Report of the Media Reform Committee, “Recommendations for Media Reform in Zambia, September 1993 at P.3.
32 b.) the need to privatize the state-run press and address the economic and financial constraints to the development of an independent and plural press; c.) the need to strengthen media associations including the training of journalists; d.) the need to place state owned broadcasting services under independent public control rather than the control of the government and to enable private participation in broadcasting; and e.) the need to set up a media resource centre.
Despite the fact that the committee was constituted by Government, its recommendations were not acted upon by the Government. This led to the Parliamentary Committee on Information and Broadcasting Services to observe that the executive branch was delaying the implementation of the media law reforms and that there appeared to be no political will to implement the reforms.155 It was due to the apparent lack of political will to implement the media law reforms that the media fraternity galvanized themselves into action sometime in January 2002 and launched a sustained campaign to resuscitate the implementation of the media law reforms by reviewing the Government initiative to introduce the Freedom of Information law, introduction of the Independent Broadcasting Authority (IBA) Bill and the initiation of the Broadcasting Bill. In due course, the media fraternity engaged the services of a private law firm to draft the Freedom Of Information, Independent Broadcasting Authority and Broadcasting Bills.156 The media fraternity with the assistance of members of Parliament from opposition Political Parties,157 made a valiant attempt to introduce for the first time in the history of the country private members bills. The attempt was thwarted by a Constitutional technicality that requires the executive branch of Government to consent to any Bill with financial implications.158 As matter of compromise, the executive branch adopted the Independent Broadcasting Bill and the Freedom of Information Bill commissioned by the media fraternity and presented them to the National Assembly with minor modification. The
155 Government of the Republic of Zambia, Report of the Committee on Information and Broadcasting Services – for the Third Session of the Eighth National Assembly Appointed on 3rd February 1999 (Printed by the National Assembly of Zambia) 1999 P. 6. 156 The media fraternity appointed Legal Practitioners to draft the Bills on 5th February 2002. 157 Hon. D. Patel Mp, Lusaka Central and Hon. S. Masebo MP Chongwe promoted the Independent Broadcasting Authority Bill 2002. Hon. J. Nguni MP. Chama South and Hon C Banda MP Kaoche promoted the Broadcasting Bill 2002. Hon Sikota MP Livingstone and Hon RJN Banda MP promoted the Freedom of Information Bill 2002. 158 See Article 81 of the Constitution of Zambia.
33 Independent Broadcasting Authority Bill was enacted into law on 31st December 2002, after President Mwanawasa assented to the enactment.159 The Zambia National Broadcasting Act160 was amended extensively. As a result of the amendments ZNBC has been converted from a stated owned and controlled broadcaster, to a Public Service Broadcaster. However, at the time of writing there is before the High Court a legal contest161 questioning the Minister’s purported power to veto nominees selected by the Appointments Committee constituted under the Independent Broadcasting Authority162 and the Amended Zambia National Broadcasting Corporation Act.163
2.5.3 Media Coverage on Corruption Stories of corruption are mostly covered by privately owned media. All the major corruption scandals have been exposed by the Post Newspaper or other privately owned newspapers.164 State owned media only report court proceedings involving corruption or statements by political leaders or Government officials on corruption.165 State owned media do not carry out investigative stories on corruption.166 Journalists by their special investigative skills, combined with press freedom should be able to unleash acts of wrongdoing and bring it to the attention of the general attention of the general public. Therefore, the coverage of corruption cases could increase if more journalists were involved in investigative journalism.
2.6.PRIVATE SECTOR Corruption cannot be blamed on unethical Government officials alone – after all, someone has to pay to the money, provide kickbacks and “grease the wheels”.167 Corruption should also be fought against from the side of the private sector – the business community, which is an equal participant in illegal practices.168 In many countries, businessmen and corporations, not their
159 Act Number 17 of 2002. 160 Chapter 154 of the Laws of Zambia. 161 Media Institute of Southern Africa (MISA) and Others vs the Minister of Information and Broadcasting Services and Another 2004/HP/0512 (unreported) 162 Act Number 17 of 2002. 163 Cap. 154 of the Laws of Zambia. 164 A.W. Chanda, Supra note 18, at 51. 165 Id. 166 Id. 167 The Center for International Private Enterprises “Corporate Governance An Antedate to Corruption”. (Published by CIPE 2002.) 168 Id.
34 Governments have led the campaign to reduce or eliminate corruption and to achieve greater transparency and accountability in Government and corporate practices.169 The motivation of business initiative is that corruption is now widely recognized as increasing the costs and risks of doing business, creating undesirable inequities and uncertainties and instilling doubt and cynicism about the integrity of all business enterprises.170Corruption is an emerging priority for the international community.171 Corruption is being carefully monitored and has become a cardinal factor affecting the flow of international resources and the direction of trade.172 If the perception that corruption in any country has become systemic results in the reduction of investments or aid flows causes the outflow of capital or exodus of firms or businessmen, the national economy can suffer.173 This in turn can impact negatively on the entire private sector, hurting the performance of business interests which have played no part in corrupt practices.174 Most international corporations have in place codes of conduct or ethical practices binding directors, management and employees.175 Although the existence of corporate codes of conduct or ethics is an important element in combating corruption in or by private sector, corporate commitment to the enforcement of these codes may be questioned.176 Most large corporations rely heavily on the external and internal auditors, or their own internal control systems and mechanisms or on customer complaints to detect breaches in the established norms of ethical behavior including corruption.177 Most corporation doing business are more concerned about fraud and theft than they are about corruption. There appear to be several reasons for the somewhat lenient attitude displayed by major private firms with respect to corrupt or fraudulent activities.178 First, large corporations tend to wish to avoid adverse publicity, which might reflect poorly on their staff selection, or promotion policies or on their internal management systems and controls.179 Second, court cases and disclosures could
169 A. Briscoe and H.C.L. Quill, supra note 1 at 24 170 Id. 171 S.R. Ackerman, Supra note 124, at P. 177. 172 A. Briscoe and H.C.L. Quill, Supra note 170, at P. 34 173 Id. 174 Id. 175 Interview with Ms A. Young, Company Secretary with Standard Chartered bank (Zambia) Limited. 176 A. Briscoe and H.C.L. Quill, Supra note 170, at P. 178. 177 178 Id. 179 Id.
35 receive unwarranted media attention and give rise to sensational reporting harmful to commercial interests of the corporation.180
2.6.1. Corporate Governance Corporate governance is generally defined in the context of issues and problems that result from separation of ownership and control in organizations.181 Corporate governance sets up a system of institutions that govern the relationship between investors and creditors on one side, and managers on the other side.182 Corporate governance sets up a system that not only governs the relationship between the owners of capital and managers.183 An important aspect of corporate governance is the fact that much attention is being paid to the relationship between mangers and other stakeholder rights and independent supervision over activities of a business entity.184 Importantly, corporate governance sets up a system where rules are reinforced not only by written regulations, but also moral standards of business ethics and by responsible corporate behavior.185 Corporate governance strongly depends on the institutional development of a country. The World Bank led the way with its 1983 World Development Report which for the first time focused on the importance of the management and governance dimensions of both national and global economic development.186 There followed a succession of initiatives which resulted in the publication in the United Kingdom of the Cadbury Report, the first King Report in South African in 1994, Commonwealth Associations for Corporate Governance Guidelines in 1999, the New York Stock Exchange Code of Corporate Conduct and World Bank’s Corporate Governance Overview, to name only a few of the breathtaking attempts to refine and instill concepts of corporate governance.187 All of these documents seek to articulate the norms and public expectation relating to the conduct of corporations.188 Each of them lays special emphasis on compliance with the laws, ethics and accepted business practices in the countries in which corporations operate.189 Efforts to further define and propagate concepts of
180 Id. 181 CIPE, Supra note 168. 182 Id. 183 Id. 184 Id. 185 Id. 186 A. Briscoe and H.C.L. Quill, Supra note 170 at P. 38. 187 Id. 188 Id. 189 Id.
36 corporate governance have acquired considerable momentum in the past few years around the world.190 An extensive literature has developed and in a growing number of countries specialized institutions have been established to conduct research on standards or benchmarking for corporate practices or to organize conferences to provide training in best practices.191 Among the many common themes in this campaign are:192
(a) the need for explicit codes of conduct; (b) the importance of defining clearly the powers and responsibilities of company directors; (c) the central role of internal and external auditors and board committee in monitoring adherence to both financial and management systems; (d) the need to appoint “compliant officers” typically company or board secretaries with special responsibilities for ensuring that corporations act at all times in accordance with applicable laws, regulations and national policies while observing best business practice; and (e) to act generally as socially and environmentally responsible corporate citizens .
The specific issue of corruption in the international business practice was not addressed internationally until 1990, when Transparency International was founded.193 Thereafter, international thinking about good governance has emphasized the need to eliminate corruption, in all its manifestations from all global business and financial transactions.194 Establishing a direct link between corporate governance and corruption is an important task.195 While many seem to concentrate on combating corruption among government officials in the area of licensing, public procurement contracts, taxations and subsidies, it is important to realize that the discretionary powers of government is not the only problem.196 Every issue has two sides to it197 and corruption is no exception to this rule.198 Just as public officers are liable for
190 Id. 191 Id. 192 Id at P. 39. 193 Id. 194 Id. 195 CIPE Supra note 168. 196 Id. 197 Id. 198 Id.
37 receiving corrupt payments, the private sector is liable for providing those payments.199 To put it simply, if the private sector would not provide financial capital to government officials, bribery could not exist.200
2.7. DONOR ANTI-CORRUPTION INITIATIVES Donor assistance has played a major role in supporting initiatives to combat corruption. The support has been both bilateral and multilateral and the major recipients have been Government and civil society. Assistance in this sector is premised on the understanding that failure to address endemic corruption ultimately undermines all development efforts. Major donors are: SIDA, NORAD, IRISH-AID, USAID, JICA, GTZ, FES, CIDA, DFID, World Bank, IMF, DANIDA, UNDP, European Union, and the Royal Netherlands Embassy. Donor assistance has focused on reducing the opportunities for corruption through supporting a stronger and more independent judiciary, legislature and oversight bodies. Promotion of an independent media, a more robust civil society, and supporting public education. Anti corruption efforts have for long concentrated on the mostly visible dimension of the problem i.e. administrative corruption – mostly smaller transactions involving mid and low level government
199 Id. 200. Id
38 officials. However, following the recent revelations of high level corruption under the Chiluba Administration anti corruption efforts have expanded to encompass grand corruption charges.
The donors have supported the following anti-corruption initiatives: · A comprehensive Public Expenditure Management and Financial Accountability Review (PEMFAR) was carried out in November 2003 using a number of diagnostic tools developed by the World Bank. Six key priority areas were identified as requiring reform: - The legal framework - Parliaments oversight of the budget - Presentation of budget - Supplementary Appropriations - Ministerial expenditure ceilings - Auditor Generals office.
PEMFAR has been adopted by GRZ supported by donors and will serve as the basis for the implementation of a comprehensive and integrated public service reform programme. · In 2002 the World Bank supported a baseline survey on corruption to establish the perceptions and experience of corruption and service delivery among public servants, households and businesses. The survey has since been completed and the report will be disseminated shortly.
· Assistance to the Anti-Corruption Commission and the Task Force.
· Support to NGOs involved in anti-corruption activities, such as Transparency International- Zambia, Integrity Foundation of Zambia, and National Movement Against Corruption [NAMAC].
39 Donors are the major source of funds for civil society. Without donor support most civil society organization would not remain in operation. Civil society has played an important role in sensitizing the public about corruption. It has also served as a public watchdog exposing corrupt practices where these have been evident. Through advocacy, Civil Society has pressured government to be more accountable. For example, Civil society in 2001 forced President Chiluba to abandon his bid to change the Republican Constitution so that he could run for a third term of office. Again, it was as a result of Civil Society’s pressure that President Mwanawasa embraced the anti-corruption fight, which was in fact not part of his election manifesto. Civil Society played an active role in pressuring the National Assembly to lift former President Chiluba’s immunity so that he could be investigated and prosecuted for plunder of national resources.
The support provided by donors to the Governance Institutions has allowed them to carry out activities which they otherwise would not have been able to. As stated throughout this study, governance institutions have been grossly under funded over the past decade. The government was in most cases only providing funds for salaries. Very little money was committed towards operations. Thus, the public education campaigns by the ACC, for example, were entirely donor funded.
Donor aid has also been useful in building up the capacity of governance institutions. This has been done through sponsorship of study tours of commissioners or staff members, sponsoring training of personnel, provision of equipment (computers and accessories), vehicles, rehabilitation of infrastructure (such as court rooms, offices of the Permanent Human Rights Commission), etc.
40 CHAPTER THREE: WATCHDOG INSTITUTIONS
3.0. INTRODUCTION. It is generally accepted that institutional changes form an important part of most national anti- corruption strategies. Elements of institution building are found in most, if not all of the international treaties, plans of action and specific development projects, which deal either with corruption or more general topics such as good governance. Reforms may include the introduction of elements of accountability into organizations, the de-layering or simplification of operations to reduce errors and opportunities to conceal corruption, as well as more fundamental reforms seeking to change the attitudes and beliefs of those who work in the institution. In some cases, institutions may be completely eliminated or restructured for a fresh start, or completely new institutions may be created. In the past, Institution building has focused on the creation or expansion of institutions and the technical skills needed to operate them. In many cases, results have fallen short of expectations because the attitudes and behaviour that supported or condoned corruption were carried forward into the new institutions. It is now accepted that reforms must deal not only with institutions but also with individuals who work in institutions.
3.1 MANDATE OF THE ANTI-CORRUPTION COMMISSION (ACC) The Anti-Corruption Commission was established initially by the Corrupt Practices Act1. The Corrupt Practices Act was enacted on 24th September 1980, to stiffen penalties for corruption offences which were hitherto quite weak under the Penal Code.2 Subsequently, the Corrupt Practices Act, was repealed and replaced by the Anti-Corruption Commission Act.3 The Anti- Corruption Commission (ACC) is the main body tasked to combat corruption in Zambia. The mandate of the ACC is set out as follows:
(a) to prevent and take necessary and effective measures for the prevention of corruption in public and private bodies;
1 Act No. 14 of 1980 2 Chapter 87of the laws of Zambia 3 Anti- corruption commission Act number 42 0f 1996
41 (b) to receive and investigate complaints of alleged or suspected corrupt practices, and subject to the directions of the Director of Public Prosecutions to prosecute those suspected of involvement in corruption; (c) to investigate any conduct of any public officer which in the opinion of the commission may be connected with or conducive to corrupt practices; and (d) to do such things as are incidental or conducive to the attainment of the functions.
Significantly, the mandate of the ACC does not include the formulation of a national strategy to combat corruption. The formulation of national strategy would include the setting of basic priorities, sequencing strategic elements, monitoring progress in specific areas and adjusting planning and timelines to progress or delay actions as implementation proceeds. The narrow mandate of the ACC has been tailored along the lines of an Anti-Corruption Agency. An Anti- Corruption Agency is a Standing Public Service body established to implement and administer prevention and enforcement elements of a national strategy.4 Anti-corruption Committees or Commissions are intended, inter alia, to develop the anti-corruption strategy and its major elements, including the establishment of an independent anti-corruption agency and other necessary entities, to develop legislation; to develop appropriate action plans; to take measures to keep the public informed and to foster broad based support of the national strategy.5 Other functions of Anti Corruption Commissions or Committee include public monitoring both of the implementation of the national strategy and of the work of officials or bodies forming elements of that strategy.6
3.1.1. Establishment and legal basis of the Commission
The ACC is a body corporate. Therefore, it is capable of suing and being sued in its corporate name.7 The ACC is an autonomous body which is not subject to the direction or control of any person or authority.8 It is important that the ACC should not be subject to undue influences or curtailment by those uninterested in combating corruption.
4 United Nations office on drugs and Crime, Anti-Corruption toolkit second edition February 2004 at P.160 5 Id section 6 Id section 7 Section 4(1) of the Anti Corruption Commission Act number 42 of 1996 8 Id section 5
42
3.1.2. Membership of the Commission The ACC is headed by a Chairperson and comprises four other commissioners.9 The chairperson and the commissioners are appointed by the President subject to ratification by the National Assembly.10 Whereas, the chairperson is required to be a person who has held or is qualified to hold judicial office, the qualifications for the other commissioners are not specified.11 Members of the commission should be selected with a view to ensuring expertise in a range of areas.12 Generally, members of the commission will consist of members recruited from the executive, judiciary, legislature, electoral governing body, civil servants, in key departments such as customs, procurement, revenue collection and law enforcement.13 Members from outside Government may include representatives of religious groups, relevant non-governmental organizations, business leaders, the media and the academic community.14 It is of utmost importance that the commission enjoys public confidence and credibility and that is enhanced by the appointment of individuals widely known and respected for their integrity, commitment and competence. The commissioners serve on a part-time basis. Commissioners serve for a term of three years subject to renewal.15 There are no provisions in the ACC Act for removal of commissioners except if:16 (a) they are absent from three consecutive meetings without reasonable cause; (b) they became insane or are declared to be of unsound mind; or (c) they became bankrupt or; (d) upon their death.
3.1.3. Management of the Commission The day to day management of the ACC is vested in the Directorate. The Directorate is headed by the Director General who is appointed by the President subject to ratification by
9 Id Section 7(1) 10 Id Section 7(2) 11 Id Section 7(3) 12 UNODC, Supra note4 at P.161 13 Id 14 Id 15 Section 8 (1) of the Anti Corruption Commission Act number 43 of 1996. 16 Id Section 8(3)
43 the National Assembly.17 The Deputy Director General and other officers of the commission are appointed by the Commission.18 The Director General and his Deputy are required to be persons who have held or are qualified to hold high judicial office.19 The Director General vacates office at the age of Sixty-five years.20 The Director General may be removed from office for inability to perform the functions of his office, whether arising from infirmity of body or mind or from any other cause or for misbehavior.21 The procedure for removal is designed to secure the tenure of office of the Director General. First, the National Assembly must resolve that the Director General ought to be investigated by resolution supported by the votes of not less than two thirds of all MP’s.22 Second, the Speaker sends a copy of the resolution to the Chief Justice, who must then appoint a three member tribunal, two members of the tribunal must be judges or qualified to hold judicial office to inquire into the matter.23 Third, after investigating the matter, the tribunal sends a report on the facts to the President and a copy to the National Assembly.24 Finally, the President can only dismiss the Director General from office if the tribunal so advises.25
3.1.4. Reporting The Act requires that the Commission, not later than ninety days after the end of the financial year submits to the President a report concerning its activities during the financial year.26 The President is required in turn, not later than seven days after the first sitting of the National Assembly, next after receipt of the Annual Report, to lay it before the National Assembly.27 In the interests of transparency and accountability the commission should report directly to the National Assembly.
17 Id Section 17 (1) 18 Id Section 18 (1) 19 Id Proviso to section 18(1) 20 Id Section 17 (1) 21 Id 22 Id Section 17 (2) 23 Id Section 17 (3) 24 Id Section 17 (5) 25 Id Section 17 (6) 26 Regulation 4 of the First Schedule of the Anti Corruption Commission Act Number 46 of 1996 27 Id
44 3.1.5. Definition of Corruption There is no single, comprehensive universally accepted definition of corruption.28 Attempts to develop such definition invariably encounter legal, criminological and in many countries political problems.29 When the negotiations of the United Nations Convention Against Corruption began in early 2002, one option under consideration was not to define corruption at all, but to list specific types or acts of corruption.30 A general census that emerges from popular literature on corruption is that although not all statutes and definitions are all inclusive, definitions include the following categories:31
(a) Agent / Principal relationship which is related to an agent improperly benefiting from activities relating to handling of his principal’s mandate e.g. abuse of Government property, equipment and labour by public officials; (b) Bribery, which refers to consideration giving an inducement to influence conduct in one’s favour contrary to standing procedures; (c) Fraud, is a representation done to obtain unfair advantage by giving or receiving false advantageous information; (d) Nepotism, which entails showing special favors to one’s relatives against other competitors in securing of contracts, services and employment; (e) Extortion, which is the unlawful extraction of money or favour by force or intimidation; (f) Embezzlement, which is the illegal diversion of the principal’s goods to one’s own use; (g) Graft, (an American term) which means procuring illegal profits or fraudulent financial gains; (h) Money laundering, which involves the depositing and transferring of money and other proceeds of illegal activities. It is an act of legitimizing proceeds of illegal activities; (i) Abuse of public property, which tends to be more prevalent where there is no citizens oversight institutions and where there is obvious monopoly of power by public officials, which is exercised with impunity. Public property gets hired out for private gain. This is more common with respect to services offered freely or at subsidized rate by the state
28 UNODC Supra note, 4 at P11 29 Id 30 Id 31 C Kunaka, N Mushumba and P Motseza “The SADC Protocol Against Corruption. A Regional Framework to Combat Corruption(published by the human rights trust of Southern Africa”) (SAHRIT), P 12
45 and its subsidiaries where such services are either scarce or beyond the reach of the majority of the people. (j) Gifts, for services that do not need an explicit quid pro quo. If however, the individual gifts are large enough to have even a marginal impact or quid pro quo is implicit, this calls for procedures and regulations to be put in place to govern the offering and receiving of such gifts; (k) Insider trading involves the use of information secured during the course of duty as an agent for personal gain. The information is then leaked to companies competing for tender, as well as on the stock exchange giving an unfair advantage over other competitors; (l) Plundering of state resources is an increasing phenomenon where people even go to war for control of resources for purposes of plundering proceeds and laundering them for personal gain; and (m) Under invoicing / double invoicing, this is a prevalent form of corruption in the private sector and aims at avoiding paying duty and taxes. Production of invoices and money earned is under declared with the connivance of the buyer. While double invoicing relates to issuing multiple invoices for purposes of misleading public authorities for private gain.
However, the ACC Act defines corruption widely. Corruption is defined as the soliciting, accepting, obtaining, giving, promising or offering of a gratification by way of a bribe or other personal temptation or inducement or the misuse or abuse of a public office for private advantage or benefit.32
3.1.6. Application of the Act The Corrupt Practices Act of 1980 provided that the provisions of the Act were applicable notwithstanding anything to the contrary contained in the criminal procedure code or in any other written law.33 Thus, the application of the Corrupt Practices Act was not constrained by either the Criminal Procedure Code or indeed any other written law. The preceding provision
32 Section 3 of the Anti Corruption Commission Act Number 43 of 1996. 33 Section 2 of the Corrupt Practices Act Number 14 0f 1980
46 held out a promise for the development of the institutional and legal framework for the fight against corruption. The ACC Act provides that all offences shall be enquired into, tried and dealt with in accordance with the criminal Procedure Code.34 The implication of the preceding provision is that the investigation and prosecution of corrupt practices is shackled by the provisions of the criminal procedure code, as well as the Penal Code. For instance, the prosecution is required to establish a prima facie case.
3.1.7. Presumptions Notwithstanding what has been stated in the previous paragraph, the Act35 makes it easier to prosecute corrupt practices by modifying some of the rules of evidence. For instance, when charged for an offence under the Act and in the absence of a satisfactory explanation, one is presumed to have committed the offence. The effect of such presumption is to shift the burden of proof from the prosecution to the accused.
3.1.8 Extra territorial Jurisdiction The ACC Act,36 provides that in relation to a public officer or a citizen of Zambia or a person ordinarily resident in Zambia, the ACC Act shall have effect within as well as outside Zambia and notwithstanding where an offence is committed by such person, he may be dealt with in respect of such offence as if it has been committed in Zambia. 3.1.9. Powers of Investigations The Commission can investigate any public officer where there are reasonable grounds to believe that such public officer-37
(a) has abused or misused his office or authority to obtain property, wealth advantage or profit directly or indirectly for himself or any other person; (b) maintains a standard of living above that which is commensurate with his present or past official emoluments;
34 Section 2 of the Anti- Corruption Commission Act Number 42 of 1996 35 Section 49(2) of the Anti-Corruption Commission Act Number 42 0f 1996 36 Id Section 61 37 Id Section 37 (1)
47 (c) is in receipt or possession of pecuniary resources or property disproportionate to his present or past official emoluments; (d) is in receipt of the benefits of any services which he may reasonably be suspected of having received corruptly and in circumstances which amount to an offence under the Act. The ACC Act38 grants extensive powers of investigation to the ACC. The Director General can: (a) authorize any officer of the commission to conduct any inquiry or investigation; (b) compel any person in charge of any department office or establishment of the Government or the head or chairperson, manager or chief executive officer of any public body to produce or furnish any relevant document in his possession or under his control.
3.1.10 Prosecution The legal and prosecution department of the ACC is responsible for the provision of legal assistance and advice to the investigators and prosecutors. The department acts as an adjunct between the ACC and the DPP; whose consent is required before the Commission can prosecute corruption offences.
3.1.11 Pardon The DPP is empowered by the ACC Act39 to authorize any court to tender a pardon to a prospective witness who is directly or indirectly implicated in an offence in order that such a person can give evidence. However, the pardon is conditional upon the witness being ready and willing to give a full and true disclosure of all facts or circumstances within his knowledge relating to the offence.
3.1.12. Evaluation First, the Commission operates in a highly charged political context. It requires high-level political support to function as a credible and effective organization. Until the ascendancy of President Mwanawasa to power in December 2001, there had been lack of political will to
38 Id Section 20 (1) 39 Id section 54
48 combat corruption in the previous ten years. The Chiluba Administration (November 1991 to December 2001) did not provide the required leadership. Second, the commission requires a substantial level of state support in order to function effectively. The Commission is not well resourced. The only functions of the Commission that appear to be making an impact are those funded by donors, particularly the Public Sensitization campaign and managerial accountability seminars.40 Third, effective legislation and an efficient criminal justice system is needed if the prosecution of corrupt practices is to be successful. The major shortcoming of the ACC Act is that it cannot commence a prosecution without the prior permission of the DPP. Fourth, a major weakness of the ACC Act, is that it does not offer protection to whistleblowers. The absence of legal protection for whistleblowers discourages citizens who may have useful information from volunteering it to the commission. Fifth, the commission, owing to it’s perennial financial problems, does not offer competitive remuneration packages to enable it recruit and retain qualified staff. Thus, the commission lacks qualified manpower to deal with complex cases such as the current investigations into the plunder of national resources.41 In order to function effectively, the Commission requires an environment which provides real political commitment, administrative autonomy, adequate financial resources, power to investigate and prosecute and a functioning judicial system.
3.2. ZAMBIA NATIONAL TENDER BOARD Few activities create greater temptation or offer more opportunities for corruption than public sector procurement.42 Every level of Government organization purchases goods and services often in large quantities and involving colossal sums. Thus, public procurement is where the public and private sectors do business. Therefore, mention the subject of corruption in Government, most people immediately think of bribes paid or received in awarding of contracts for goods and services or to use the technical term, procurement. 3.2.1. Principles of Procurement Procurement should be economical and based on the principle of “value for money”. It should result in the best quality of goods and services for the price paid, or the lowest price for the acceptable quality of goods and services; not necessarily the lowest priced goods available
40 A .W. Chanda “National Integrity Systems Country Study Report Zambia 2002 (Published by Transparency International Zambia Copyright 2002) at P.42. 41 Id at P44 42 Id
49 and not necessarily the absolutely best quality available, but the best combination to meet the particular needs. Public funds should not be used to provide favors, standards and specifications must be non-discriminatory, suppliers and contractors should be selected on the basis of their qualifications and the merit of their offers; there should be equal treatment of all in terms of deadlines, confidentiality and so on. 3.2.3. Zambia National Tender Board The Zambia National Tender Board (ZNTB) draws its mandate from the Zambia National Tender Board Act.43 ZNTB maintains its presence in Lusaka, Ndola and Kabwe.44 ZNTB is adequately staffed and sends its staff for training from time to time to ensure a high calibre of staff.45 ZNTB has an annual budget of K15 billion per annum and receives K11 billion.46 In addition to Government support, ZNTB receives support from the World bank and the Government of the United States of America.47 The functions of ZNTB are as follows:
(a) to formulate rules and regulations governing the procurement of goods and services for the Government and parastatal bodies; (b) to advertise locally and abroad tenders for the procurement of goods and services for the Government and parastatal bodies; (c) to regulate the procedures relating to the award of contracts on behalf of the Government and parastatal bodies; (d) to formulate the conditions under which any rules and regulations governing the procurement of goods and services for the Government and parastatal bodies may be varied or waived. ______43. Chapter 394 of the laws of Zambia 44. Submission made by Mrs. E.M.M. Sikanyika Board Secretary Zambia National Tender Board on 14th October 2004 45. Id. 46. Id. 47. Id.
50 ZNTB ensures the adherence to tender procedures as provided for under the ZNTB Act. ZNTB has the mandate to put in place rules and regulations that are aimed at improving the procurement system. ZNTB also monitors and inspects Government institutions to ensure compliance. ZNTB collaborates with the Anti - Corruption Commission as well as the Auditor General’s Office.48 3.2.4. Membership of the Board
ZNTB is headed by a Chairperson and twelve other members of whom the following shall be ex officio members:49 (a) the Secretary to the Cabinet; (b) the Director General of the Zambia Industrial and Mining Corporation Limited; (c) the Chairman of the Zambia Consolidated Copper Mines Limited; (d) the Governor of the Bank of Zambia; (e) the Permanent Secretary in the Ministry responsible for Finance; (f) the Permanent Secretary in the Ministry responsible for development planning; and (g) the Permanent Secretary in the Ministry responsible for Works and Supply. The composition of the Board requires to be revisited in view of the fact that the Zambia Consolidated Copper Mines Limited (ZCCM) and the Zambia Industrial and Mining Corporation Limited (ZIMCO) have been privatized and liquidated respectively. The Chairman and the other members, other than the ex officio members are appointed by the President.50 There are no checks and balances on the discretion of the President to appoint members of the Board. Subjecting the appointments to, for instance, ratification by the National Assembly would conduce to transparency and accountability of the appointments. The President has power to remove any member of ZNTB Board.51 The power is sweeping and may be abused. Except for ex officio members, Board members serve for a period of two years subject to re- appointment.52 ______48 Id. 49. Id. Section 4 (1) 50. Id Section 5 (4) (h) 51. Id Section 5 (4) (h) 52. Id Section 5 (2) and the provision thereof
51 3.2.5. Financial Disclosure Statements The ZNTB Act,53 compels any person present at a meeting of the Board or any Committee of the Board at which any matter is the subject of consideration and in which matter such person or his spouse is directly or indirectly interested in a private capacity to disclose such interest and not take part in any consideration or discussion of or upon such matter. It is however, submitted that the disclosure of interests as required by the preceding section is not sufficient to address and resolve potential conflicts of interest as required. Board members should prior to appointment to the Board be required to submit comprehensive financial disclosure statements. 3.2.6. Open Meetings The ZNTB Act54 empowers the Board to regulate its own procedure. The Board may meet at such places and at such times (being not less than once every three months) as the Chairman may determine.55 Of the most essential tools to combat corruption in the procurement process is transparency. Therefore, transparency may be promoted by requiring that business of the ZNTB Board is open to the public. To this extent, restrictions on publication or disclosure of information require to be reviewed.56 3.2.7. Commitment and Expenditure Control
The ZNTB Act57 provides for commitment and expenditure control by requiring ZNTB to take appropriate corrective or/and/punitive measures against controlling officers or parastatal executives, to ensure hatt procurement of goods and services is in accordance with the procedures prescribed under the ZNTB Act. Where ZNTB Board is satisfied that an employee of the Government or parastatal has caused criminal or willful default, such person may be charged with the amount of such loss.58 ______53. Section 9 (1) of the ZNTB Act 54. Id Section 11(1) 55. Id Section 11 (2) 56. Id Section 13 prohibits the publication or disclosure of information to unauthorized persons 57. Id Section 18 (1) 58. Id Section 19 (1)
52 3.2.8. Single Sourcing ZNTB has produced procurement guidelines for different categories of goods and services.59 The rule requires competitive bidding for all major procurements.60 However, there are exceptions. For instance, where specialized services are required, the ZNTB Board may use selective tenders without issuing an advertisement in the media.61 Although ordinarily, tenders are advertised widely in both the electronic and print media, there is provision in the regulations for special formal tenders.62 A tender Committee can authorize special formal tenders or negotiations where:63 (a) there is an emergency declaration in force; (b) it is the interests of the public order, public safety or public security; (c) building works of a specialized or complex nature are involved or equipment to be obtained is highly specialized; (d) the goods and services to be obtained are of personal or professional nature; (e) services are to be rendered by an educational or training institution. (f) Evidence is furnished that there are no other competing institutions or organizations in respect of the goods and services to be supplied or rendered and that the supplier is the sole franchise holder; (g) The goods or services to be supplied or rendered are to be used in or are in the nature of research work; (h) Equipment to be supplied is technical and is of a nature that requires standardization and inter-changeability of parts; or (i) There has been no acceptable tender from all formal tenders previously invited. This tender method is the most prone to corrupt practices because of lack of competition.64 In most cases, justifying circumstances are claimed that do not really exist usually to cover up corrupt practices. ______59. A.W Chanda, National Integrity System Country Study Report Zambia 2002 (Published by Transparency International Zambia 2002) P.33 60. Id. 61. Id 62. Regulation 42(1) of the Tender Regulations 63. Regulation 42(3) of the Tender Regulation 64. A.W Chanda, supra note 2 P.33
53 3.2.9. Assessment of the ZNTB Act
Generally speaking, there is insufficient accountability and transparency in the procurement process. This is largely due to the weaknesses in the legislative framework. Firstly, the ZNTB Board is filled with Presidential appointees who serve at the President’s pleasure. Secondly, single sourcing, instead of being an exceptional measure has been used widely.65 Thirdly, the law does not provide for appeal process to enable unsuccessful bidders to request a review of procurement decisions.66 Fourthly, the law does not provide for blacklisting of companies proved to have been involved in bribery in the procurement process67 and penalties for non-compliance are weak. Fifthly, there is no Code of Conduct for public procurement officers.68 Lastly, the endert rules are not publicly accessible, thereby reducing transparency and accountability in the procurement process.
3.2.10. Measures to combat corruption in the procurement process (a) Media The most powerful tool is public exposure.69 The media can play a critical role in creating public awareness of the problem and generate support for corrective actions.70 Once support is developed for the reform of procurement practices, the problem can be tackled from different perspectives.
(b) Unified Code of Procurement The code can take many forms but there is increasing awareness of the advantages of having a unified procurement code setting out the basic principles clearly and supplementing them with more detailed rules and rules within the implementing agencies.71 A number of countries are consolidating existing laws that over many years have developed haphazardly into such a code.72 ______65. Id. at P.34 66. Id 67. Id. 68. Id. 69. 64. UNODC, supra note 4, at P 284 70. Id. 71. Id. P. 285 72. Id.
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(c) Transparent Procedures Beyond the legal framework, the next defence against corruption is a set of open transparent procedures and practices for conducting the procurement process itself.73 No one has yet found a better answer than supplier or contractor selection procedures based on real competition. 3.3 OMBUDSMAN The term “Ombudsman” derives from the Justitieombusmannen created by the Swedish Parliament in 1809 to supervise the observance of statutes and regulations by the courts and by public officials and employees.74 The concept has been taken up by many countries and has been adapted to national or local requirements.75 Ombudsman usually consist of individuals or agencies with very general powers that allow them to receive and consider a wide range of complaints not clearly falling within the jurisdiction of other more structured forums such as law courts or administrative bodies.76 Ombudsmen fulfill several important functions as follows:77 (a) they provide means for obtaining an impartial and independent investigation of complaints against Government agencies and their employees. Such informal procedures are usually used to avoid the limitation of other mechanisms, such as legal proceedings which are out of financial reach for some complainants and impracticable for relatively minor complaints; (b) they educate Government insiders about appropriate standards of conduct and serve as a mechanism whereby the appropriateness of established codes or service standards can be considered and if necessary adjusted; (c) they raise awareness among the population about their rights to prompt efficient and honest public service; they provide remedies in some cases and they help identify more appropriate forums in others. ______
73. Id. 74. UNODC, supra note 4, at P. 103 75. Id. 76. Id. 77.Id.
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3.3.1 The Investigator General The Ombudsman concept was introduced in Zambia through the 1973 Constitution, which ushered in a “one-party participatory democracy”.78 The establishment of the ombudsman was preceded by the National Commission on the establishment of a “one party participatory democracy”. One of the recommendations of the Commission was the creation of the ombudsman to be styled the “Investigator General”, whose task would be to investigate any matter of individual injustice, or administrative abuse of power involving corruption, tribalism, nepotism, intimidation, and all forms of discrimination taken by or on behalf of public officers.79 Thus, this recommendation led to the creation of the Commission of Investigations as enshrined in Part ix of the 1973 Constitution of Zambia and its enabling law, namely the Commission for Investigations Act.80 The raison d’etre of the Commission as stated in the Act, is to enquire into the conduct of any person to whom the Act applies in the exercise of his office or authority or abuse thereof.81 However, maladministration and abuse of office are closely linked with corruption.82 Consequently, complaints touching on corruption are referred to the Anti-Corruption Commission for investigations and prosecution. Complaints of violation of human rights are referred to the Human Rights Commission. 83 The Commission for investigations has been located in Lusaka since its inception in 1974.84 However, there are plans to establish provincial centres in the year 2005.85 Currently, the Commission has thirty (30) officers on its establishment, which include the Investigator General and three Commissioners. The ideal establishment is sixty (60) officers. Currently, there is a critical shortage of Lawyers, Administrators and Economists on the establishment to ensure enlightened investigations. 86 The Commission has an annual budget of K1.5 billion. ______78. G. S. Phiri, “The Ombudsman in Zambia” Commonwealth Law Bullettin Volume 12 Number 1 January 1986 (Published by the Commonwealth Secretariat) at P. 245. 79. Id. 80. Chapter 39 of the Laws of Zambia 81. Id Objects clause 82. Interview with Mr. Mbuzi Secretary to the Commission for Investigations held on 11th October 2004 83. Id 84. Id 85. Id 86. Id
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However, the Commission receives a monthly allocation of K15 million.87 In addition, the Commission receives financial support from United Nations Agencies, and the donor community.88 The Commission for Investigations is chaired by the Investigator General.89 The President in Consultation with the Judicial Service Commission appoints the Investigator General.90 The Investigator General must be qualified to be appointed a Judge of the High Court.91 Apart from the Investigator General, there are three other Commissioners who are appointed by the President subject to ratification by the National Assembly. It is noteworthy that no qualifications are laid down for Commissioners. The Investigator General enjoys the same security of tenure as a High Court Judge. The Investigator General may only be removed from office for incompetence or inability to perform the functions of his office, whether arising from infirmity of body or mind or from other cause or for misbehavior.92 The President can dismiss the Investigator General only if a Judicial tribunal appointed by the Chief Justice acting on resolution of the National Assembly so recommends. The Commissioners do not enjoy security of tenure and may be removed from the office by the President for inability to discharge the functions of their office or for misbehavior.93 The Commission has Jurisdiction to inquire into the conduct of any person in which it considers that an allegation of maladministration or abuse of office or authority by any person ought to be investigated.94 Specifically, the Commission has jurisdiction over the following:95 (a) any person in the service of the republic; (b) the members and persons in the service of a local authority; (c) the members and persons in the service of any institution or organization whether established by or under an Act of Parliament or otherwise, in which the Government holds a majority of shares or exercises financial or administrative control; and ______87. Id 88. Id 89. Id 90. Article (1) of the Constitution of Zambia 91. Article 90(2) of the Constitution of Zambia 92. Article 90 (5) of the Constitution of Zambia 93. Section of the Commission for Investigations Act Chapter 139 of the Laws of Zambia 94. Section 8 of the Commission for investigations Act, Chapter 39 of the Laws of Zambia. 95. Id Section 3
57 (d) the members and persons in the service of any commission established by or under the constitution or any Act of Parliament. As with other watchdog bodies, Ombudsmen require mandates that are broad enough to ensure that ombudsmen can consider complaints that do not come within the purview of other forums such as law courts or administrative tribunals. Indeed, overlap with other forums should be avoided as much as possible.96 Ombudsmen should not be empowered to consider major cases within the jurisdiction of other bodies.97 In minor cases, complainants should have a choice between the ombudsmen and other procedures.98 However, the Commission has no power to investigate complaints against:99 (a) the President; (b) any decision of any court or any judicial officer in the exercise of his judicial functions; (c) any decision of a tribunal established by law for the performance of judicial functions; and (d) any matter relating to the exercise of the prerogative of mercy. The Ombudsman process is complaint driven. A complaint or allegation may be made by any person or by any body of persons.100 The complaint can either be in writing or oral.101 However, the complaint or allegation can only be considered if it is made within a period of two years from the date on which the facts giving rise to any such complaint or allegation became known to the person making the complaint or allegation.102 However, the commission may in its absolute discretion receive complaints or allegations not made within the stipulated period.103 Thus, the commission is barred from conducting investigations under the Act concerning any allegation or grievances where the complainant or the person aggrieved has or has had at any material time the right or opportunity of obtaining relief or seeking redress by means of:104 ______96. UNODC, supra note 4, at P.104 97. Id. 98 Id. 99. Section 3(2) of the Commission for Investigations Act Chapter 39 of the Laws of Zambia 100. Id. Section 9. 101. Id 102. Id. 103. Id. 104. Id. Section 10 (1)
58 i. an application or representation to any executive authority; ii. an application, appeal, reference or review to or before a tribunal established by or under any law; or iii. proceedings in a court of law.
However, the Commission may conduct an investigation where it is satisfied that in particular circumstances of the case, it would be unreasonable to expect the complainant or the person aggrieved to report or to have resorted to any foregoing means without expense or delay.105 The Commission may refuse to conduct or may decide to discontinue an investigation where it is satisfied that:106 (a) the complaint is trivial, frivolous, vexatious or not made in good faith; or (b) the inquiry would be unnecessary, improper or fruitless. Although, the Commission is obliged to inform the complainant of its decision not to conduct an investigation, it is not bound to give reasons for such a decision.107 The Commission can during its inquiry require any person who in its opinion is able to furnish information or produce documents relevant to the investigation to furnish such information or produce such document.108 In this respect, no obligation to maintain secrecy or other restriction upon the disclosure of information whether imposed by law or otherwise shall apply to the disclosure of information for the purpose of conducting an investigation under the Act.109 The government is not entitled in relation to any such investigation to any privilege. However, the Commission may be denied access to documents or witnesses where the President certifies that the giving of any information or the production of any document:110 (a) might prejudice the security, defence or international relations of the Republic or detection of offences; or (b) might involve the disclosure of the deliberations of the Cabinet relating to matters of a secret nature and would be injurious to the public interest. ______105. Id. 106. Id. Section 10 (2) 107. Id. Section 10 (3) 108. Id Section 14 109. Id. 110. Id.
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The proceedings of the Commission are informal and are conducted in camera.111 The Commission is required to report to the President on every investigation it has conducted. The report is required to contain the following information:112 i. a summary of the evidence taken together with the conclusions and recommendations of the commission; ii. a statement of any action that has been taken by any person whose conduct is under investigation or by the department or authority of which such person is employed, to correct or ameliorate any conduct, procedure, act or omission that is adversely commented in the report; iii. where any person has suffered loss or injury as a result of any alleged misconduct, maladministration or abuse of office or authority by any person whose conduct is under investigation and the commission has found the allegations to be true, the commission may in its recommendations state that compensation should be paid to the person who has suffered such loss or injury or to any dependent of such person and shall determine the sum which it recommends as compensation. The President may take such decision in respect of the matter investigated or being investigated into by the Commission as he thinks fit.113 The Commission is required to communicate the President’s decision to the affected party.114 The Commission is also required to submit an annual report to the National Assembly. However, the report to the National Assembly is not required to disclose the identity of any person whose conduct an investigation has been or is about to be made.115
______111. Id. Section 16 112. Id. Section 20 113. Id. Section 21 114. Id. 115. Id. Section 22
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3.3.2. The role of the Ombudsman in Anti-Corruption Programmes The Commission does not have a formal co-ordination mechanism with other institutions, such as the Anti-Corruption Commission. However, it does co-operate informally with other law enforcement agencies in terms of referral of cases to the appropriate agency where it lacks jurisdiction.116 Other agencies also refer appropriate cases to the Commission.117 Since there is no formal mechanism for exchange of information, there are no follow ups on the progress of a case that has been referred to another agency.118 Ombudsmen may function as a “stop gap” dealing with corruption cases in the early stages of anti-corruption programmes. The mandate of ombudsmen goes beyond corruption cases and includes incidents of maladministration attributable to incompetence, bias error or indifference that are not necessarily corrupt.119 That can be an advantage as the complainant in many cases will not know of or suspect the presence of corruption.120 The ombudsman can determine that and if necessary refer the matter to an Anti-Corruption agency or prosecutor for further action.121
3.3.3. Assessment of the Investigator General In practice, the Commission has not had much of an impact on governance for a number of reasons.122 Firstly, it lacks enforcement power and relies on the President for enforcement of its recommendations.123 Secondly, the commission has been greatly under funded by
116 A.W Chanda, Supra note 63, at P 37 117 Id. 118. Id. 119. UNODC, Supra note 4 at P. 103 120. Id 121. Id 122. Id 123. A.W. Chanda, supra note 2 at P.37
61 government over the years.124 This has resulted in the commission scaling down its operations, as it often does not have operational funds. Thirdly, many Zambians are not aware about its existence because it operates in camera.125 Fourthly, the commission is not easily accessible to the vast majority of the citizens because its offices are based in Lusaka. Fifthly, there is critical shortage of adequately qualified staff.
3.3.4. Measures to reform the Investigator General There is need to reform the Commission in order to make it more effective. Firstly, the jurisdiction of the Commission should be enlarged to include investigation of corrupt practices and where appropriate make referrals to the Anti-Corruption Commission. Secondly, the Commission should take a more proactive role in studying the efficiency and operational policies of public institutions in an effort to prevent occurrences of corruption, injustice, incivility or inefficiency. Thirdly, the Commission should be endowed with adequate investigative powers and access to all institutions and documents that the Commission considers necessary for the performance of its functions. Fourthly, the commission should be vested with enforcement power. Fifthly, a high level of integrity for individual staff members and procedures is required. Sixthly, the commission should hold its sessions in public in order to enhance transparency and increase its public profile. To this end, the public must have free, direct and informal; access to the ombudsman. Seventhly, the commission should be an agency of the National Assembly and not the President as is the case at the moment. Lastly, the commission should decentralize its operation to the provinces.
3.4. AUDITOR GENERAL The fundamental purpose of auditing is the verification of records, processes or functions by an entity that is sufficiently independent of the subject audit as not to be biased or unduly influenced in its dealings.126 The degree of thoroughness- and the level of detail of audits vary,
124. Id 125. Id. 126. Id
62 but in general, they should fully examine the accuracy and integrity of actions taken and records kept.127 Corporate, audits for example, consider the substantive position of the company, the decisions made by its officials, whether the audit process itself was inherently capable of producing a valid result and the accuracy of the evidence of information on which decisions or actions were based.128 Any factors, if flawed would result in an inaccurate or misleading conclusion.129 The United Nations Convention Against Corruption treats Audit requirements as elements of prevention in both the public sector130 and the private sector. 131 In addition, specific elements of the convention such as the requirements to preserve the integrity of books, records and other financial documents make it clear that the functions of deterrence, detection, investigation and prosecution are also contemplated.132 As with many preventive requirements, audits and auditors prevent corruption by making it riskier and more difficult, while at the same time laying the basis for reactive and remedial measures in cases where it is not prevented or deterred.133 Audits work primarily through transparency.134 While some auditors have powers to act on their own findings, their responsibilities are usually confined to investigation, reporting on matters of fact and sometimes to making recommendations, or referring findings to other bodies for action.135 Once carried out, audits serve the following specific purposes:136
127. UNODC, supra note 4, at P 110 128. Id 129. Id 130. Article 9 of the United Nations Conventions Against Corruption 131 Id. Article 12 132. See article 9 Paragraph 3 (integrity of records) as well as Article 9 paragraph (2) (e) Procedures not followed) of the United Nations Convention Against Corruption. 133. UNODC, supra note 4, at P 110 134. Id 135. Id 136 Id 135 Id 136 Id 133 Article 121 of the Constitution of Zambia 134 Id 135 Id 136 Id Article
63 (a) They independently verify information and analysis, thus establishing an accurate picture of the institution or function being audited; (b) They identify evidentiary weaknesses in administrative structures, assisting decisions about which elements should be retained and which reformed; (c) They provide a baseline against which reforms can later be assessed and unlike insiders, they can, in some cases, propose or impose substantive goals or time limits for reforms; (d) In public systems, they place credible information before the public, generating political pressure to act in response to problems identified; and (e) Where malfeasance is identified, they present a mechanism through which problems can be referred to authorities independently of the institution under audit. Depending on the magnitude of the audit, and the degree of independence needed, audits may be carried out by specialized units, acting from within Government departments or companies, by fully independent Government institutions or by private contractors.137 Internal audits are useful for auditing that requires access to sensitive information.138 Usually, however, they are under the control of the head of the unit being audited and may not be made public or reported outside the organization involved.139 External audits offer much greater independence and better guarantees of transparency and public access to findings.140
In Zambia, the Auditor General is the “Watchdog” of the nation’s finances. The office of the Auditor General is created under the constitution, in order to ensure the autonomy of the office in auditing public expenditure,141 the Auditor General is appointed by the President.142 However, the appointment is subject to ratification by the National Assembly.143 No qualifications are laid down for holding the position of Auditor-General. The Constitution guarantees the independence of the Auditor General, by providing that in carrying out his or
137 Id 138. Id 139. Id 140. Id 141. Id 142. Article 121 (4) of the Constitution of Zambia 143. Id
64 her work, the Auditor General is not subject to the direction or control of any other person or authority. The Constitution provides for security of tenure of the office of the Auditor- General.144 Thus, the Auditor General, can only be removed from office for inability to perform the functions of his office, whether arising from infirmity of body or mind or for incompetence or for misbehavior.145 The National Assembly can only dismiss the Auditor General if a judicial tribunal comprising three members, appointed by the National Assembly, so recommends.146 The retirement age of the Auditor General is sixty years.147 The Constitution sets out the functions of the Auditor General as follows:148 (a) to satisfy himself that the moneys expended have been applied to the purpose for which they were appropriated by Parliament and that the expenditure conforms to the authority that it governs; (b) to audit the accounts relating to the general revenues of the Republic and the expenditure of the moneys appropriated by the National Assembly, the Judicature, the accounts relating to the stocks and stores of the Government and the accounts of state owned enterprises and statutory corporations; (c) to audit the accounts relating to any expenditure charged by the constitution or any other law on the general revenues of the Republic. The value of public sector audits is based on transparency and public disclosure.149 An audit report will usually provide information and recommendations for action by inside experts.150 The imperative for public disclosures is usually made explicit in national legislation.151 The Constitution requires the Auditor General to submit his report to the President not later than twelve months after the end of each financial year.152 The President must in turn, not later than seven days after the first sitting of the National Assembly cause it to be laid before the National Assembly.153 ______
144. Id 145. Id 146. Article 147. Id Article 122 (3) (c) 148. Id Article 122 149. Id Article 121(2) 150. UNDOC supra note 4, at P. 113 151. Id 152. Article 121 (4) Constitution of Zambia 153. Id.
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3.4.1. The Relationship between the Auditor General and the National Assembly
Auditors established by the legislature are generally required to report to it at regular intervals.154 As an additional safeguard, reporting to either the entire legislature or any other body on which all political factions are represented ensures multi partisan review of the report.155 Thus, the Auditor General is required not later than twelve months after the end of each financial year to submit a report on the accounts of Government to the President.156 The President is in turn required not later than seven days after the first sitting of the National Assembly next receipt of such report, cause it to be laid before the National Assembly.157 If the President fails to lay the report before the National Assembly, the Auditor General is required to submit the report to the Speaker, who must in turn lay it before the National Assembly.158 In the National Assembly, the Auditor General’s report is first examined by the Public Accounts Committee, which subsequently presents a report to the whole assembly for debate and adoption. The public Accounts Committee has power to summon witnesses, question them and demand explanations. However, the Public Accounts Committee does not have power to punish erring officers. The power to punish erring officers is reposed in the executive branch. The executive branch, is required to submit a treasury minute or Action Taken Report to the National Assembly after six months outlining what measures it has taken to correct the anomalies pointed out. In practice, the executive branch routinely ignores the reports.
3.4.2. Assessment of the Auditor General’s performance The office of the Auditor General has not performed its functions efficiently and effectively. Firstly, audit reports are usually late by several years. Apart from operational difficulties, the delays may also be attributed to the fact that the constitution permits the office of the Auditor General to audit the accounts after the end of the previous budget year. The delays in submitting the reports undermine, the utility of the reports. ______
154. Article 121 (4) Constitution of Zambia 155. Id 156. UNDOC supra note 4, at P. 21 157. Id 158. Article 121 (4) Constitution of Zambia
66 Secondly, the office of the Auditor General has been inadequately funded. The office has been receiving a fraction of the funds it requires to operate. The budget of the office is determined by the Ministry of Finance and often bears no relation to the plan of operation prepared by the Auditor General. This limits the scope of the investigations the office can conduct. Thirdly, the office has serious shortage of qualified staff on account of poor conditions of service. The situation is compounded by the fact that the office often does not have resources to contract out services to private audit firms unless the project being audited incorporates a budget for audits. Fourthly, the office lacks functional independence. Although the Auditor General is independent, the rest of the staff are not. Lastly, the Auditor General has no power to sanction officers who have misapplied or embezzled public funds. The Auditor General can only make recommendations to the National Assembly.
3.4.3. Assessment of the performance of the Public Accounts Committee The Public Accounts Committee has not improved probity in government for a number of reasons. Firstly, as earlier on noted, the reports of the Auditor General are submitted late to the National Assembly. Secondly, the Public Accounts Committee has no power to compel the executive to take corrective or remedial measures. Thirdly, there are no objective criteria for appointments committee. Lastly, the National Assembly for most part of its history has been dominated by the ruling party. As a result, the Public Accounts Committee tends to be constrained in taking the executive branch to task for fear of embarrassing the President and the ruling party.
3.4.4. Measures required to be taken to improve the performance of the Auditor General and the Public Accounts Committee
(a) Independence of auditors and staff - The degree of independence enjoyed by auditors varies. The validity and reliability of the audit, however, do depend on some basic degree of autonomy. Major public sector audits generally require and are given a degree of independence roughly equivalent to that of Judges or national Anti-Corruption Agencies. Public Audit Agencies are ultimately subordinate to, and employed by the state, making complete independence impossible. Nevertheless, a high degree of autonomy is essential in matters such as mandate and
67 governance, budgets, staffing, the conducting of investigation, the making of decisions about what to audit. The independence of audit institutions is directly related to the independence of their members, in particular those with senior responsibilities or decision making powers. To ensure staff competence, credibility and neutrality, candidates for positions should be carefully reviewed before being hired and once employed, should be protected from outside influences. To prevent an abuse of their positions, audit staff like judges may require security of tenure, and there must be safeguards in the form of performance assessments, disciplinary procedures as well as other “disincentives” to engage in corrupt practices.
(b) Powers of Auditors
The employees of audit institutions should have access to all records and documents relating to the subject matter and processes they are called upon to examine. Subject to rights against self-incrimination, those being audited should also be required to co-operate in a timely manner in locating documents records and other materials, providing formal, recorded interview and any other forms of assistance needed to allow auditors to form a full and accurate picture. Although audit staff may be competent in basic investigative, auditing an accounting practices, they may, however require additional expertise in areas such as law or forensic and or other sciences in dealing with some agencies or departments. Thus, professional qualifications and on the job development, should include traditional areas, such as legal, economic, accounting knowledge along with expertise such as business management, electronic data processing, forensic science and criminal investigative skills.
(c) Implementation of findings or recommendations
As noted, the Auditor General has the power only to report not to implement or follow up on reports. Thus, there is need to review the policy and legislative provisions governing the relationship between the Auditor-General and the National Assembly, as well as enforcement agencies such as the Anti-Corruption Commission.
68 (d) Political commitment Political will is essential to the impact of an audit institution.159 As with other anti-corruption initiatives, there should be a broad range of political support as possible; oversight should be of a multi-partisan nature and operational matters should be put beyond the easy reach of Governments.160 The transparency and the competence of the Auditor General’s office will also help to ensure popular support and as a result ongoing political commitment.
(e) Management controls In keeping with changes in international auditing practices, the scope of the work of the Auditor General should be expanded to cover broader qualitative aspects of public service management, procedures, controls and accountability as they relate to public monies and other public assets. For instance, the Auditor General could be mandated to examine the economy, efficiency, and effectiveness with which any public officer or institution discharges his or its official responsibilities with regard to the management of public monies and public supplies.
3.5. ELECTORAL COMMISSION OF ZAMBIA Corruption clearly has the potential to subvert the democratic process by improperly influencing the outcome of elections or providing political parties or individual candidates for public office with an unfair advantage. Corruption in the political system may take the form of buying off political opponents, rewarding political supporters or ensuring the backing of key groups through bribery or simply accumulating resources to fight elections. Certain corrupt practices in relation to the conduct of elections are accordingly penalized under the Electoral Act. In this respect, the Electoral Act provides as follows:
The election of a candidate as a member of the National Assembly shall be void on any of the following grounds which is proved to the satisfaction of the High Court upon the trial of an election petition, that is to say:
______
159. Article 121 (4) Constitution of Zambia 160. Id
69 (a) that by reason of any corrupt practice or illegal practice committed in connection with the election or by reason of other misconduct the majority of the voters in a constituency were or may have been prevented from electing the candidate in that constituency whom they preferred; (b) that there has been a non-compliance with the provisions of the Act relating to the conduct of elections, and it appears to the High Court that the election was not conducted in accordance with the principles laid down in such provisions and that such non-compliance affected the result of the elections; (c) that any corrupt practice or illegal practice was committed in connection with the election by or with the knowledge and consent or approval of the candidate or of his election agency or his poling agents; and (d) that the candidate was at the time of election a person not qualified or person disqualified for election.
The Electoral Commission of Zambia, is charged with the oversight role of the electoral process. It comprises a chairperson and not more than four other members, who are all on full time. The members of the commission are appointed by the President subject to ratification by the National Assembly. They serve for a period of seven years subject to renewal and ratification by the National Assembly. The Chairperson must be a person who has held or is qualified to hold high judicial office or “any other suitably qualified person”. However, no academic or professional qualifications are laid down for the other commissioners. The commission appoints the Director, who is the Chief executive officer of the commission and is responsible for the management and administration of the commission and implementation of the decision of the commission. The Commission also appoints supporting staff.
3.5.1. Assessment of the Electoral Commission of Zambia Firstly, despite the legal guarantee of the independence of the Commission, in reality it enjoys limited autonomy, as it is dependent on Government for funding. Secondly, the Commission continues to operate as a normal Government department with a head of expenditure reflected in the estimates of Revenue and Expenditure. Thirdly, the Commission does not enjoy the confidence of all stakeholders, as it is allegedly partisan and incompetent. For instance, the
70 December 27 2001 elections were marred by corruption: vote buying; treating; abuse of public resources by the ruling party; flagrant biased coverage by the Government owned media.
In addition the Electoral Reform Technical Committee (ERTC) has, inter alia, made the following findings in relation to the Electoral Commission of Zambia (ECZ):
i. ECZ lacks the technical competence and logistical capacity to conduct and superintend free and fair elections; ii. ECZ has no constitutional mandate to conduct voter education, conflict management and monitoring; iii. ECZ lacked sufficient political insulation to manage the electoral process; and iv. ECZ should ensure that it is self-accounting and not dependant on the executive branch in terms of operation
3.5.2. Political Parties Political parties may generally be described as associations or groups of people who are formally organized for the purposes of gaining Governmental power by promoting their members to contest and win elections. They are therefore an integral part of democracy. Political parties perform many functions in a democracy including:
(a) providing a secular basis around which people can associate with the main purpose of trying to place some of their members in Governmental positions and hence influence Governmental decision making; (b) providing a conducive environment for political competition as different interests and individuals seek positions of power; (c) carrying out the initial selection of candidates to participate in the election, with each party fronting its best people to vie for leadership; (d) articulating clear policies simply presented to the electorate; (e) carrying out political communication and education, providing information on which the voters may base their selection of the candidates before them;
71 (f) carrying out political mobilization and encouraging the public to cast their votes in elections; (g) developing the special legitimacy to continuously aggregate and represent people’s problems and demands to the authorities; (h) uniting the diverse peoples who constitute their membership or who participate in debating party policies and ideas; (i) facilitating dialogue between the authorities and the public; and (j) acting as instruments of reconciliation between diverse populations or groups. Zambia has more than thirty registered political parties. The majority of the political parties exist only on paper. The importance of political parties in the democratic process cannot be overemphasized. The agitation for the repeal of Article 4 in the 1973 Constitution which prohibited the existence of political parties other than the United National Independence Party (UNIP), was at the core of the struggle for democratization which preoccupied Zambians in the early 1990’s. Unfortunately, since then, nothing has been done to facilitate the development of viable and sustainable parties in order to consolidate multi-party politics. Several factors inhibit the development and institutionalization of political parties. These include: § lack of resources; § personality cults; § failure to effectively articulate and market their ideology and policies; § lack of internal democracy; § ineffective grassroots mobilization; and § poor party management. For parties to play their role in the democratization process responsibly and effectively, they have to be able to organize adequately in order to develop convincing policies and inform the public about them. They must have properly working and strategically located offices. They should also have paid and voluntary staff who implement the decisions of various levels of party hierarchy. Finally, a party must be able to mobilize all available human, financial and physical resources in order to meet organizational costs.
72 3.5.4. Rationale for funding of Political Parties As can be seen from the discussion above, the development and institutionalization of political parties requires substantial resources. Public funding is justified on the following grounds among others: i. it helps in safeguarding the various political parties against undue influence from private and foreign sponsors since the interests of such sponsors often threaten the freedom and ability of political parties to represent the will of the people; ii. availability of public finances ensures that diverse parties survive and defeats any move towards single party authoritarianism through the use of financial muscle to obliterate parties that do not have rich financiers; iii. legal regulations governing public accountability for party funds discourage utilization of other state resources by the party in power; and iv. public party funding boosts the capacity of different political parties to develop and articulate policies, thereby promoting competitiveness and the quality of consultations between power seekers and the electorate.
3.5.5. Measures required to be taken to enhance the Electoral Commission of Zambia There is need to reform the ECZ in order to enhance its capacity to manage the electoral process. For instance, the ERTC has recommended the following remedial measures.
i. that the Independence of the Commission should be enshrined in the Constitution; ii. the ECZ should be granted non-discretionary funding to fulfill its mandate; iii. the recommendations to the President for the appointment of members of the ECZ be made by the Judicial Service Commission; iv. the President on the recommendations of the Judicial Service Commission and subject to ratification by the National Assembly, should appoint seven members of the Commission, one of whom should be a Judge or lawyer; v. the chairperson and two other members be full time while the four other members serve on part-time basis;
73 vi. the chairperson of the Commission should be a Judge, a person qualified to be a Judge or who has held high judicial office or any other suitably qualified person not necessarily from the legal profession; vii. the other members of the Commission be persons who have held senior positions of responsibility; viii. the chairperson and commissioners be persons of high moral integrity and competent in electoral matters; ix. members of the Commission be non-partisan and should not represent political parties; and x. that commissioners serve for a term not exceeding seven years, subject to removal and ratification by the National Assembly.
3.5.6 Funding of Political Parties Public funding of political parties is not a new phenomenon. Several countries around the world fund political parties. Zambia is one of the few countries that do not fund political parties in the Southern Africa Development (SADC) region. Thus, the ERTC recommends that:
(a) political parties be funded due to paucity of resources amongst political parties as well as to avoid compromising issues of national interest and security and also to encourage transparency; (b) the national budget should provide funding for political parties and the funding be aimed at meeting the administrative costs of the political parties and electioneering; (c) only political parties with representation in Parliament or local council be funded; (d) the funding should be proportional to the number of seats held by a political party in Parliament or local council; (e) in terms of level of funding, seats in Parliament should carry a higher premium than seats in local councils; (f) seats occupied by women through the First Past the Post System (FPTP), should attract a higher level of funding; (g) political party financing should be subjected to efficient government controls;
74 (h) all political parties should be obliged, by law, to disclosure their sources of funding as a way of building a more accountable and transparent political system; and the ECZ should be charged with the responsibility of funding political parties.
75 CHAPTER FOUR: PUBLIC SERVICE’S INVOLVEMENT IN COMBATING CORRUPTION
4.0. OVERVIEW OF THE PUBLIC SERVICE IN ZAMBIA The definition of the public service broadly refers to the executive branch of Government and therefore includes not just Government Ministries but other governance institutions such as the Zambia Police Service, Solicitor General, the Director of Public Prosecutions, Defence forces, the Anti-Corruption Commission, the Human Rights Commission, the Electoral Commission of Zambia, and the Drug Enforcement Commission. The Service Commission in the 2003 Disciplinary Codes and General Orders defines Public Service to mean ‘the civil service, the Teaching Service, the Police and Prisons Services and any other service duly established under the Constitution of Zambia or an Act of Parliament.’
Zambia today, has a total of twenty-six Government ministries and civil servants are spread through these ministries as well as Government agencies. In 1997, Government employees numbered 136,000, while by December 1 1998, the number was 119,000 as a result of the separation of over 15,000 classified employees and a net natural attrition of about 1,000.1 Chanda (2002) indicates that the total number of Government employees further reduced to 101,000 in April 2002.
In terms of structure, the head of the Civil Service is the Secretary to the Cabinet, who is appointed by the President subject to ratification by the National Assembly. Additionally, the President appoints a Deputy Secretary to the Cabinet and the Permanent Secretaries who serve as top civil servants and controlling officers in each ministry. It is important to note that no qualifications are stipulated for this position and it is entirely up to the discretion of the President to appoint someone as Permanent Secretary. Lower level officials and middle management positions up to Deputy Permanent Secretary are however appointed, promoted and disciplined by the Service Commissions acting in the name of the President. Permanent Secretaries however, serve at the pleasure of the appointing authority. They lack security of tenure, which seriously compromises their political neutrality. ______1. World Bank, 2000 ‘PASCAP Project Appraisal Document’
76 The Service Commissions are an important component of the Public Service and these are either provided for in the Constitution or a specific Act of Parliament. The Constitution establishes the Judicial Service Commission and empowers Parliament to establish other Service Commissions. Under the Service Commissions Act, the following Service Commissions have been established – Public Service Commission, the Teaching Service Commission, and the Police and Prisons Service Commission. Primarily, the functions of the Service Commissions are to appoint, promote and discipline public officials. Additionally, the Service Commissions provide advice to the President on policies and procedures for employment and for the conduct and discipline of officers in the public service. The Service Commissions equally act as an appellate body for the public service.
4.1. RECRUITMENT, APPOINTMENTS AND PROMOTION OF PUBLIC OFFICIALS In 2003, the Government revised the terms and conditions of service, as well as the Service Commission Regulations, Service Commission Policies and Procedures for Employment in the Public Service, and the Disciplinary Code and Procedures for handling offences in the public service. All these documents constitute the human resources management policies and Procedures for the public service. The Terms and Conditions of Service supercede the General Orders of 1990. It should be emphasized, however, that these regulations as well terms and conditions of service do not apply to a number of senior public servants such as the Secretary to the Cabinet, Auditor General, Permanent Secretaries, Principal Private Secretaries- State House, Inspector General of Police, Director-General – Special Division, Director of Public Prosecutions, among others.
4.1.1 Recruitment procedures Under the new procedures, Government maintains that it shall apply a competitive selection process in filling of vacancies in the public service in order to obtain the best qualified employees. The Service Commissions determine the procedure to be followed in dealing with the applications for appointment to the Public Service, including appropriate guidelines to any selection board appointed by the Service Commission to interview candidates. It should be mentioned that an independent selection board, a Department or Ministry that wants to recruit staff must inform the Public Service Commission, which then takes up the matter. Transfers of
77 personnel within the ministries are effected by Permanent Secretaries, but the Public Service Commission in consultation with the Secretary to the Cabinet, makes inter-ministerial transfers. Ministers have no power to transfer civil servants and in fact have no say in the recruitment, deployment and promotion of civil servants. The staff in the civil service can rise to any level up to the Deputy Permanent Secretary, depending on qualifications, experience and competence. The new terms and conditions of service stipulates that a candidate for appointment to any post in the public service may be required to pass a qualifying examination before being appointed. Civil Service Obligatory Examinations are a prerequisite for admission to the permanent and pensionable terms, although professional and technical officers are exempted from sitting these examinations.
4.1.2 Screening and Background Search In terms of background search, it should be mentioned that the terms and conditions of service in 12 (a) stipulates that on appointment to the Public Service and in addition to the application for employment, an officer shall submit to the Responsible Officer (which is taken to mean the Permanent Secretary of a Ministry) the following:
§ A Criminal Investigations Department clearance report; § Confirmation of date of arrival at duty station; § Personal Information; § A Declaration of Secrecy; § Acknowledgement of liability in respect of personal effects; § Certified proof of qualifications; § A medical certificate; and § A certified copy of the National Registration Card.
It is apparent therefore, that the only clearance required has to do with criminal records. This form of screening is not conclusive, as it may not reflect sufficiently previous misconduct or even involvement in corruption of a potential candidate.
78 4.2 ACCOUNTABILITY AND ETHICS IN THE ZAMBIAN PUBLIC SERVICE One of the major factors currently undermining the efficient and effective delivery of public services and development in Sub-Saharan Africa is poor public service ethics. Generally, public service ethics refers to a certain set of standards, values and conduct which public servants are expected to maintain in order to perform or dispense their duties efficiently and effectively. Thus, the set of standards, values and conduct which could be said to constitute poor public service ethics include: unprofessional behaviour, immoral acts, corruption, intentional lapse of judgment, and acts of omission and commission. Ideally, in order to achieve its goals, every organization normally spells out a set of standards, values and codes of conduct to which it expects its employees to adhere in order to perform their duties efficiently. Public service organizations in Africa are no exception2
In the case of Zambia, there are a number of measures in place which are meant to uphold the probity and accountability of public officials. The disciplinary code and procedures for handling offences in the public service, has been put in place by the Service Commissions. The Service Commissions in this regard refers to the Public Service Commission, the Teaching Service Commission, the Police and Prisons Service Commission or any other Service Commission duly established under Article 123 of the Constitution of Zambia or Section 7 of the Service Commissions Act. What this implies is that disciplinary code applies to a wide range of Public Servants including police officers and teachers. As a preamble, It should be mentioned that the principles on which these codes are based on are as follows: § Disciplinary action should first involve counseling, then corrective action. Where these steps are ineffective, punitive action shall be taken; and § To protect the Public Service against indiscipline and to protect public officers against arbitrary judgment and punishment. There are eight (8) major categories of offences in the disciplinary code and these are presented as follows: Category A: Absenteeism and Poor Time Keeping; Category B: Sub Standard Performance; ______2. UNDESA/UNDP, 2001 ‘Public Service Ethics in Africa, Vol 2’
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Category C: Indiscipline, Improper of Disorderly Behaviour; Category D: Loss, Damage and Misuse of Government Property; Category E: Theft or Fraud; Category F: Illegal Industrial Action; and Category G: Breach of Trust or Confidentiality; and Category H: Sexual Harassment; Immoral Conduct and Indecent Assault
Category E offences include bribery, corruption and misappropriation of funds. In this category, bribery and corruption are taken to refer to the giving or receiving or attempting to give or receive any bribe or inducing or tempting any person to perform any corrupt act. Additionally, the reference to bribery and corruption includes secret commissions i.e. acceptance of a payment in cash or in kind in return for favours. The disciplinary code provides for sanctions for the different categories of offences and these are – unrecorded / verbal warning, recorded / written warning, forfeiture of pay, severe warning with suspension, final warning, punitive suspension, demotion, and discharge or summary dismissal. The determination of the level of sanction to be applied is quite discretionary and dependent on the disciplining authority. For instance, a final warning can be given to an officer for the repetition of the same offence when a severe warning has just expired or for a first offence of the nature which includes corruption. It should also be recognized that a similar offence of corruption can also attract discharge or summary dismissal which are regarded as the final sanctions, although these may only be effected by a responsible officer (i.e. Permanent Secretary or any other officer designated in the Service Commission Regulations or the Service Commission). One major weakness of the disciplinary code is that it prescribes a long grievance procedure which in some instances could affect prompt and timely action on serious offences such as corruption.
Additional measures for accountability of Public Officers are provided in the Anti-Corruption Commission Act. For instance, the Act prohibits public officers from accepting gifts unless they are ‘casual gifts.’ A ‘casual gift’ is defined as ‘any conventional hospitality on a modest scale or unsolicited gift of modest value offered to a person in recognition or appreciation of that person’s services, or as a gesture of goodwill towards that person and includes any
80 inexpensive seasonal gift offered to staff or associates by public and private bodies or private individuals on festive or other occasions, which is not in any way connected with the performance of a person’s official duty so as to constitute an offence under Part IV.’3 Similarly, while there is no legislation that requires public officers to disclose their assets, the ACC Act under section 37 can investigate any public officer where there are reasonable grounds to believe that such public officer –
a) abused or misused his office, position or authority to obtain property, wealth, advantage or profit directly or indirectly for himself or any other person; b) maintains a standard of living above that commensurate with his present or past official emoluments; or c) is in control or possession of pecuniary resources or property disproportionate to his present or past official emoluments.
4.2.1. Comparative Analysis on Accountability and Ethics in the Public Service A number of countries in Africa have to contend with an increase in corruption cases, and as result, reform programmes have been instituted to address not just structural issues but procedural and ethical issues as well. The following section therefore highlights two case studies of Ghana and South Africa on the subject of accountability and ethics in the public service and this is information is as presented in the UNDESA /UNDP 2001 report on Public Service in Africa. 4.2.1.1 Ghana: Ethics in the Public Service The Government of Ghana instituted the National Institutional Renewal Programme (NIRP) in 1995 as an umbrella programme embracing the reforms in all public service organizations. These included the Civil Service Performance Improvement Programme, State Enterprise Reforms, Public Sector Reinvention and Modernization Strategy for Ghana, Legal Sector Reforms, among other things. A new Constitution was adopted in 1992, which, among other things, prescribed the extent of the public services in Ghana and a Code of Conduct (Chapter 24) for public servants. ______3. Anti Corruption Commission Act, section 3
81 The concept of the public services in Ghana has evolved over the years into a much wider one than in countries like Lesotho, where the public service is perceived to be the same as the civil service. In Ghana, the Constitution (1992, Chapter 14) defines the public services to include the civil service, thirteen other services—namely the judicial, audit, education, prisons, parliamentary, health, statistical, national fire, customs and excise, internal revenue, police, immigration and legal, and the public corporations other than those set up as commercial ventures—and any others established by the Constitution or Parliament (Constitution, 1992)
The 1992 Constitution reflects numerous initiatives meant to combat corruption, including Chapter 18 on the Commission on Human Rights and Administrative Justice and Chapter 24, which is devoted to the Code of Conduct for Public Officers. The code prescribes the guidelines for ethical behaviour for all public servants, including the avoidance of conflicts of interest. Section 286(5) identifies the main target group to provide leadership in ethical behaviour, ranging from the President of the Republic down to the Heads of ministry or government department, chairmen, managing directors and general managers of public corporations or enterprises in which the state has a controlling interest. Parliament was empowered to prescribe any other public officers who should “submit to the Auditor General a written declaration of all property or assets owned by, or liabilities owed by him whether directly or indirectly.” The frequency of the declaration to be effected was:
§ Before taking office; § At the end of every four years; and § At the end of his or her term of office.
All the central management agencies (CMAs), which provide leadership in the executive arm of government, are also expected to provide ethical guidance for all the other public service agencies. The CMAs are made up of the Public Services Commission, Ministry of Finance, National Development Planning Commission, National Council on Women and Development, Ghana National Commission on Children, Office of the Head of Civil Service, Ministry of Local Government and Rural Development, and State Enterprises Commission which has responsibility for both state-owned enterprises and subverted agencies (which depend in part
82 or in whole on government subsidies). The central management agencies were expected to prepare Codes of Conduct, which derive from, the same value bases as the Constitution and which provide guidance for other agencies and public servants as a whole. The supervisory and control mechanisms for proper ethical conduct were reposed in the Auditor General and the Commissioner for Human Rights and Administrative Justice, the former to collate for record keeping all completed Assets Declaration Forms, the latter to investigate and prosecute cases of corruption. The Serious Fraud Office (SFO) was created outside the Constitution to fight serious offences, worth 50 million Cedis or more. The Code of Conduct for Public Officers, enshrined in the Constitution (1992), requires the written disclosure of assets and liabilities of top public officials. Nobody seems to have the responsibility to ensure that such declarations are completed and recorded for all the officials specified in the section 286(5) of the Constitution. The Auditor General, whose office is the repository of those declaration forms admits he is not empowered to verify the truth or otherwise of claims made in them. Thus, if no Presidential Commission of Enquiry or Court demands such a declaration in evidence, the contents of the completed Assets Declaration Forms may never see the light of day, ever
Eight years after the adoption of the 1992 Constitution, the values and standards advanced therein have neither been fully propagated, nor has civic education on them been adequately carried out. Systematic training in ethical behaviour has not been well entrenched in induction or ongoing training programmes. The Office of the Head of Civil Service in November 1999, published the Code of Conduct for the Ghana Civil Service. The Public Services Commission, at the time of the UNDESA /UNDP Report, had not yet published the first draft of the Code of Conduct for the public services, and individual ministries, agencies and organizations in the public services have their codes of conduct at various stages of preparation and implementation. A limited awareness of proper codes of conduct seems, however, in evidence throughout the public services and private sector.
4.2.1.2 South Africa: Ethics in the Public Service With the new Constitution (1996), South Africans have committed themselves to the realization of an accountable, ethical and democratic system of governance. The country has
83 a Code of Conduct for public servants as part of the regulatory environment and can be considered a part of both a guiding and control framework for the conduct of public servants. The Code of Conduct for Public Servants is outlined in Chapter M of the Public Service Regulations. In terms of the regulations, public servants may be guilty of misconduct if there is a contravention of the Code. The Code covers five particular areas of concern.
§ Relationship with the legislature and executive branch; § Relationship with the public; § Relationship among employees; § Performance of duty; and § Personal conduct and private interests.
Although the Code of Conduct was drafted to be as comprehensive as possible, it does not provide a detailed standard of conduct. To assist with the interpretation of the Code and to give practical effect to its provisions, the Public Service Commission has developed a Manual of Guidelines to supplement the Code. The Code provides that heads of departments may, after the matter has been consulted in the appropriate Chamber of the Public Service Bargaining Council, and without derogating from it, supplement the Code of Conduct. It is also the responsibility of the heads of departments to ensure that their staff are acquainted with the measures in the Code, and that they accept and abide by them.
In addition to the Code, corruption and unethical practices are dealt with in terms of a Public Sector Coordinating Bargaining Council (PSBC) Agreed Disciplinary Code, which contains the possible acts of misconduct and the range of possible sanctions. With effect from 1 April 2000, through an amendment to the Public Service Regulations 1999, the highest-ranking public servants (Directors-General) have also adopted a code of ethics for which they can be held accountable to, in addition to their normal responsibilities. Through the Executive Members’ Ethics Bill, Parliament has also provided a code of ethics to govern the conduct of the members of the Cabinet, Deputy Ministers and members of Provincial Executive Councils. This new Executive Code, which by 2001 was still in draft form, is an extension of the National Parliamentary Code of Conduct as regard to financial Interests. As with the
84 Parliamentary Code, the public section of the disclosures made to the Secretary of Cabinet or Provincial Executive Council will be available for public scrutiny. The current disciplinary codes, which include provisions on the conflicts of interest, are marked by an absence of a system for disclosing financial interest. This is in contrast to the requirements for disclosure on the part of political office-bearers and members of Parliament. The system for members of Parliament has, however, no verification system in place. In addition, there is currently no system for disclosure by political parties, although this is an arena of major concern.
Teachers and police associations, nursing and other medical associations, associations of planners and engineers, public finance management and general public management associations can play a key role in encouraging ethical practices. Many of the existing professional associations in South Africa have guiding codes, and some have clear sanctions against members who contravene the code. These associations often require members to sign an ethical code as a basis for membership. However, the influence of these associations on appointments and registration as a basis for employment is limited in most areas. In addition, the culture of belonging to professional associations that are able to influence and guide practices has largely been confined to certain sections of the population.
A range of organizations and units are currently tasked with acting against corruption and unethical practice. These include institutions that are autonomous of the executive and that have been created as a result of constitutional provisions. In addition to the Auditor-General and the Public Protector, this infrastructure also includes Commissions of Inquiry, the Heath Special Investigative Unit, the Human Rights Commission, and the Public Service Commission. An Investigating Directorate on Corruption has recently been established in terms of the National Prosecuting Authority Act (1998) under the National Director of Public Prosecutions to deal with offences relating to corruption.
4.3. NATIONAL PROGRAMMES TO REFORM THE PUBLIC SERVICE The Zambian Government has since the 1990s being implementing a number of programmes meant to build capacity of the Public Sector. A number of these programmes are supported through bilateral and multilateral agreements. The reasons for the reform programmes are many and varied, although the overriding one is that the public service has not performed as
85 expected in terms of service delivery and thus remains in need of restructuring, and strengthening. It should be mentioned that corruption has been cited as being high in the public service and poor remuneration has been identified as a prime cause for this increase in corruption. The following section therefore, provides an overview of a number of national programmes as well as other interventions aimed at the Public sector. Specifically, the national programmes include the Public Service Reform Programme as well as the National Capacity Building Programme for Good Governance in Zambia. Further insight is provided on identified focus areas vis-à-vis governance and corruption in different Country Assistance Strategies (CAS) and the intention is to show that public sector reform remains a priority area for Government and stakeholders. The premise of presenting this information is to underscore that such reform activities will have an inevitable impact in combating corruption in the public service as well as prepare the sector to effectively deal with corruption within and outside the public sector.
4.3.1.Public Service Capacity Building Programme (PSCAP) PSCAP was designed with the intention of making public service delivery processes more effective and efficient in order to facilitate economic growth and reduce poverty. Government, through PSCAP4, has articulated a vision for the public service that contrasts the public service today with the characteristics of public service provision beyond 2010 needed to promote growth and alleviate poverty. The Government envisions a small core of 10 – 12,000 civil servants responsible for managing public resources, formulating policy and monitoring policy implementation and service delivery. PSCAP has five components and each of these components builds upon past and ongoing institutional reforms that aim to establish a more effective, efficient and decentralized provision of public services. These components are viz: § Rightsizing and Pay Reform; § Policy and Public Service Management; § Financial Management, Accountability and Transparency; § Judicial and Legal; and § Decentralization; ______4. World Bank, 2000, ‘Project Appraisal Document for the Public Service Capacity Building Project.’
86 An overview of these components as described in the project appraisal documents is given as follows: i. Rightsizing and Pay Reform – The main objective of this component is to bring about the restructuring necessary to rationalize the functions of Government and to generate the financial resources needed to begin to create the pay incentives required to motivate staff. One important activity under this component is to enhance capacity of the Public Service Commission to undertake selection and placement of appropriate personnel in the restructured ministries on the basis of need and merit. ii. Policy and Public Service Management – The objectives of the component are mainly to establish policy formulation and performance monitoring as the focus of the core of Government and to develop the capacity of the core to manage the transformation of the public service to meet PSCAP’s long term purpose, more efficient and effective delivery of public services. Under this component, PSCAP will also continue the capacity building and process reform started under USAID funding, by supporting activities that will improve the capacity to formulate, analyse and co-ordinate policies. iii. Financial Management, Accountability and Transparency - The two principal objectives of this component are to develop the capacity to allocate and spend public resources in accordance with the Medium Term Financial Framework (MTFF) and to improve the accountability of public servants to spend and deliver services in accordance with the priorities established in the MTFF. Of interest to this study is the Accountability and Transparency sub component which is intended to be implemented by the Office of the Auditor General and the Zambia National Tender Board. This sub component builds on just ended World Bank supported project – the Financial and Legal Management Upgrading Project (FILMUP). Specifically, the activities of this sub component are based on what was articulated in the National Capacity Building Programme for Good Governance which include improving the capacity of the Office of the Auditor General (OAG), enhancing the independence of the OAG, as well as decentralizing the operations of the OAG. PSCAP will also to augment the capacity of the National Assembly’s Public
87 Accounts Committee to review and recommend action on reports from the OAG through training and giving the committee access to specialist assistance.
iv. Judicial and Legal – The objectives of the component are to improve the capacity of Government to undertake its legislative agenda and to carry out urgent physical and human capacity building in the Judiciary. The activities under this component also build on the FILUP project and specifically focus on training staff in the Ministry of Justice and the Judiciary, and developing where necessary, procedures/systems in the Ministry of Justice and line ministries. Other activities include identifying and reviewing current laws and legislation impacting on accountability and transparency, and this is in addition to training of Judges and judiciary staff.
v. Decentralization - the objective of the component is to prepare for the implementation of the Government’s Decentralization Policy once it is formally announced.
4.3.2. Other Governance and Corruption Programmes Other than the PSRP described above, there are a number of other programmes and projects that are been supported through bilateral and multilateral arrangements. It should be mentioned that in March 2000, the Zambian Government launched the National Capacity Building Programme for Good Governance in Zambia (NCBPGGZ). Government has been implementing this programme through the Governance Development Unit (GDU) based in the Ministry of Justice. The Governance Programme focuses on institutional capacity building and strengthening institutional linkages so as to enhance good governance in Zambia. The programme has a budget of US$445 million and is to be implemented over a period of ten years from the year 2000. The strategic objectives, in order of priority in the Governance Programme are: Constitutionalism and Human Rights, Accountability and Transparency, Economic Management, and Democratization, Decentralization and Strengthening of Local Government. Co-operating partners are supporting this programme and its related projects. GDU in their 2003 Status Report, note that most of the support received at the time from Cooperating Partners, was for Accountability and Transparency.
88 The 2003 Status Report on Enhancing Good Governance in Zambia, notes a number of developments made for each of the strategic objectives. Under Judicial Reforms for instance, the report highlights that the Judicial Complaints Committee which is provided for in the Judicial (Code of Conduct) Act No 13 of 1999, had by 2003 being operalisationed. Members of the committee were appointed by the Republican President at the beginning of the year and ratified by the National Assembly. Primarily, the Committee is meant to deal with complaints against judicial officers including Judges and make recommendations for remedial action.
§ Another important development reflected in the status report is the establishment of the Police Public Complaints Authority as part of the Zambia Police Service Reforms. The Police Public Complaints Authority has been established to check on the excess use of power by Police Officers, as well as receive all complaints against police actions and investigate all complaints against police, which result in serious injury or death of a person. The Authority is obliged to submit its findings, recommendations and directions to the Director of Public Prosecutions for criminal prosecution. The Authority, as at 2003, had received 299 complaints and dealt with 4 cases.
§ The Zambia Police Service reforms have equally witnessed the formation in July 2003, of the Police Professional Standard Unit with the mandate to investigate corruption, arbitrary arrests and detention and other unprofessional behaviour within the Police Service. The Unit, which is under the authority of the Senior Police Prosecutions Officer, has power to recommend action against any implicated officer.
4.4 SKILLS REQUIREMENTS It is quite evident that combating corruption, money laundering, financial crimes, and economic plunder requires specialized skills. Currently, Government faces a twin dilemma – firstly, it does not offer good employment packages to attract top notch professionals, and secondly, Government is unable to send most of its staff for specialized training due to budgetary constraints. Additionally, while job specifications clearly state the required technical skills, Government has in a number of cases, recruited professionals who have qualifications in other fields other than the specified one. For instance, the newly established Anti-Money Laundering
89 Unit has recruited staff from different background including banking, accountancy, financial management etc. The absence of any structured Continuous Development programmes means that institutions depend on occasional in-house training activities, externally funded conferences and workshops or in some instances, long term scholarships from bilateral and multilateral organizations. Development of skills is crucial particularly that combating corruption or money laundering is not confined to one institution, but several. It is important that for the success of these activities, all institutions involved have the necessary professional and technical competency to carry out their mandate.
4.4.1. Identification of skills required in investigation, prosecutions and legal procedures Notwithstanding the different mandates of institutions, there are common skills required i.e. technical comprehension of a particular subject area, investigation, prosecution, and legal process and procedures. The following schematic highlights the different roles that Government institutions play in combating corruption, money laundering or any other financial crimes.
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ACTOR – ROLE SCHEMATIC Zambia Police Service
Anti-Corruption
Commission
INVESTIGATIONS Drugs Enforcement This includes criminal and Commission (including financial investigations the Anti Money Laundering Unit
Office of the Auditor
General
Taskforce on Economic Plunder and Corruption
Director of Public PROSECUTION Prosecutions Office Conducted by different players including the Director of Public Prosecutions Office Anti Corruption Commission
Drugs Enforcement Commission including Anti Money Laundering Unit
Zambia Police Service Public Prosecution Division
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Subordinate Courts These include both lay and professional magistrates LEGAL PROCESS From the start of the due process up to sentencing as well as forfeiture of High Court assets if necessary
Supreme Court
The above schematic on the Actors and their roles, emphasizes the need for skills within the institutions given the mandate to either investigate, prosecute or adjudicate on such matters. A quick overview of the actors mentioned above clearly points to the fact that there is an urgent need for Government to develop and implement a comprehensive training programme for watchdog and law enforcement officers. Of course, such measures will need to be implemented alongside institutional / structural changes that are being implemented through the Public Service Reform Programme and the Public Service Capacity Building Programme. The urgency for such a comprehensive training development programme, is a recognition of the inadequacies or limitations in the current cadre of training providers in Zambia. All the training providers offer general and foundational programme in terms of prosecutions, investigation or judicial / legal training as described below. Government, with support of co-operating partners can develop and promote professional specialized courses which can be accredited by either local or international universities. In this way, there will be a deliberate measure to produce Prosecutors, Investigators, Advocates, Magistrates, Auditors and Financial Experts capable of dealing with new forms of crimes and vices.
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4.4.2. Description of Training Service Providers The following section provides information on training providers in the area of investigations, prosecutions and judicial training. As already highlighted, these training providers offer foundational courses rather than specialized ones. The training providers highlighted are from Zambia although there is recognition that similar training can be provided regionally and internationally. In the assessment of training needs, it is apparent that most of the staff in particularly the Judiciary, DPP’s office, Anti-Corruption Commission or even Drug Enforcement Commission, attend higher education outside the country. The training providers profiled are – the National Institute of Public Administration (NIPA), the National College for Management and Development Studies (NCMDS), the Zambia Institute for Advanced Legal Education, and the University of Zambia – School of Law.
1. National Institute of Public Administration (NIPA)
The new NIPA was established under an Act of Parliament – Act No. 15 of 1998, as a management training institute for the public and private sectors. NIPA has three divisions namely: Business Studies, Research Consultancy and Development, and Management studies. NIPA, at its main and Burma Road campuses, offers training, research and consultancy in the following areas: management development, accounting and financial management, information systems, marketing, training of trainers, law, purchasing, office management, research methodology and consultancy skills. The full listing of the courses and services offered is provided in Table 1 below:
93 Table 1: Full Listing of Courses and Services offered by NIPA Management Studies Business Studies Research, Consultancy and Other Services (Courses offered on Development Services request)
1. Diploma in Management Studies 1. Post Graduate Diploma in Financial 1. Strategic Planning 1. Military Law Management (PGDFM) 2. Magistrates’ Diploma 2. Gender and Development 2. Private Secretary’s course 2. Accounting Technician’s Diploma (ATD),I, 3. Diploma in Project Management II,III 3. Organisation and Development 3. Legal Secretary’s course
4. Basic Prosecutions 3. National Accounting Technician’s 4. Communication 4. Court Reporter’s course Programme (NATECH) modules A,B,C,D 5. Diploma in Human Resources 5. Good Governance 5. Stenographer’s course (Beginners Management 4. Certificate in Accounting (CIA) and Final) 6. Poverty Assessment and Reduction 6. Certificate in Law 5. Institute of Management Information Systems (IM IS) Diploma (UK) III & IV 7. Human Rights 7. Certificate in Human Rights 6. Diploma in Information Systems and 8. Training of Trainers 8. Diploma in Law Programming (DISP) 9. Training Evaluation Tools 9. Certificate in Records 7. Certificate in Information Systems (CISP) Management 10. Team Building 8. Chartered Institute of Purchasing and 10. Certificate in Management S tudies Supply (CIPS)
9. Chartered Institute of Marketing (CIM)
10.Certified Accounting Technician (CAT)
11. ACCA II
94 2. Zambia Institute of Advanced Legal Education The Zambia Institute of Advanced Legal Education (ZIALE), is a body corporate established by an Act of Parliament. Th e Institute was founded in 1968 as a national forum with the aim of proving basic training to postgraduate law students in the essentials of legal practice so that after their course they could practice in the Zambian courts. The institute was re- established by an Act of Parliament in 1996 to be a body corporate. Under the new Act No. 10 of 1996, the functions were widened to provide national, regional, and international post- graduate legal studies and training in legislative drafting as well as diploma courses. The Institute also provides diversified legal training to personnel in private and public institutions with a view to enhancing their managerial and/or professional skills. Training in this category seeks to improve organizational capacities in leadership, planning, conflict resolution, time management, communication, monitoring and other relevant skills.
The core function of the Institute is the provision of the Legal Practitioners’ Qualifying Examination (LPQE) course to those Law Graduates wishing to be admitted to the Zambian Bar. In addition to the Bar Course, the Institute is also mandated to offer courses, among others, Post-graduate Diploma in Legislative Drafting, Post-graduate Judicial Training for Magistrates and Judges, Practical Human Rights and the Law, Gender and the Law, Practical Advanced Prosecutors. The following section therefore, outlines these courses offered by ZIALE. a. Legal Practitioners’ Qualifying Examination (LPQE) Course This is the main course offered by ZIALE and all students who have successfully completed their course of study at the institute, and successfully pass their examinations are recommended for admission to the Zambia Bar. b. Post-Graduate Diploma in Legislative Drafting The Legislative Drafting course is intended to equip lawyers with the intended skills and knowledge required for drafting legislation and rendering quality legal advice. It is directed to achieve an intelligible and confident style of drafting legislation to support the emergence of free market economies and democratic forms of governance. The course emphasis is on the individual development of practical skills. It is centered on practical skills. It is centered on practical exercises and gives the participants the opportunity to apply the techniques and know-how of legislative preparation, which they acquire in class. Exercises are followed up in individual and joint tutorials, and class critiques given at the Ministry of Justice.
95
c. Practical Advanced Human Rights and the Law course The course is aimed at equipping and sensitizing law enforcement officers and other members of the public from both Government and Non-Governmental Organizations in society acquire knowledge and practical skills in Human rights and the Law. It is hoped that at the end of the course, one will be able to demonstrate an understanding of basic theory of human rights principles relevant to law enforcement and have a better appreciation of the role of the Judiciary, Lawyers and Prosecutors in the promotion and protection of human rights. It is also hoped that this will minimize the incidences of human rights abuses and create a culture of respect for human beings in different organizations. d. Practical Gender and the Law course The course is aimed at equipping and sensitizing men and women from different disciplines in society on the practical skills in gender and the law. It is intended that, the knowledge acquired will create awareness within different communities where participants will be drawn from. e. Practical Advanced Prosecutors course The aim of the course is to impart to participants in-depth knowledge and practical skills in the practice of Criminal Law. The course is of particular interest to State Advocates, Public Prosecutors from the Police Service, Drug Enforcement Commission, Anti-Corruption Commission, Immigration, Zambia Wildlife Authority, Zambia Revenue Authority and all other Prosecutors employed in the public service. Lawyers in the private practice and parastatals sectors who are gazetted or regularly conduct private prosecution have an opportunity to acquire practical training in prosecutions.
96 Table 2: Overview of the courses offered by ZIALE
Legal Practitioners’ Post-Graduate Diploma in Practical Advanced Human Practical Gender Practical Advanced Qualifying Examination Legislative Drafting Rights and the Law Course and the Law Course Prosecutors Course (LPQE) Course
1. Professional Conduct 1. Legislative Drafting 1. Introduction to human rights theory 1. Family Law 1. Criminal Procedure and Ethics § Legislative drafting and drafting 2. General overview of human rights 2. Maintenance of spouse 2. Evidence Practice and 2. Book-keeping and methods protection system 3. Divorce Procedure Accounts § Legislative systems 3. General overview of Regional 4. Property rights 3. Presentation of the case 3. Conveyance and Legal § Context of legislation Human Rights Protection system 5. Inheritance and 4. Type of witnesses Drafting § Law revision, reform, 4. National Protection of human rights succession 5. Leading Evidence-in-Chief 4. Probate and Succession consolidation and domestication overview 6. Violence against women 6. Cross Examination 5. Commercial Transactions of international law 5. Human Rights of suspects before 7. Rights of a child 7. Re-Examination 6. Company Law and 2. Administrative Law and after trial 8. Reproductive rights 8. The Argument/Submission Procedure § General principles 6. Torture and other cruel, inhuman or 9. Employment 9. Applications/Motions 7. High Court Civil § Local government law degrading treatment, treatment or Discrimination 10. Courts Case Study Procedure § Decentralization punishment, extra-judicial 10. Enforcement Institutions 11. Court Language 8. Subordinate Court Civil 3. Comparative Constitutional Law executions 11. International Human 12. International Cooperation in Procedure § General Principles 7. Freedom of expression, assembly, rights Criminal ma tters 9. Domestic Relations § Development and drafting of association and form of 13. Prosecution process and 10. Criminal Procedure constitutions discrimination Human Rights 11. Law of Evidence and § Constitutionalism 8. Rights of prisoners Practice 4. Law in Development 9. Protection of victims § General Principles 10. Women rights, with emphasis on § Topics of current development crimes of violence against women; value e.g. environment law, inheritance revenue and tax laws, labour 11. Protection of human rights of laws, intellectual property children at global, regional and 5. Research Methodologies and national level Computer Applications 12. Rights of life and capital § Introduction to computers and punishment their use 13. The Judiciary and law enforcement § Research methods 1. Human Rights during a State of Emergency
3. University of Zambia – School of Law The programme of legal education at the University of Zambia commenced at the beginning of the second academic session of the University in March 1967, with a class of thirty-seven students. Formal recognition as one of the Schools of the University was accorded to the School of Law on 1 July 1967. Since its establishment the School has presented more than 896 undergraduates for the award of the degree of Bachelor of Laws.
The main objectives of the school are to contribute to building and developing the legal profession in Zambia and to produce lawyers who are well equipped to meet the needs of a developing country such as Zambia. The school’s central commitment is to the degree programme for the Bachelor of Laws and it is through this programme that it seeks to attain its objectives. The degree programme lasts for four years, with the entire first year being spent following the regular programmes provided by either the School of Humanities and Social Sciences, Education or of Natural Sciences, and the remaining three years being spent exclusively in the School of Law. The school emphasizes the importance of a broad education that will promote an awareness of human society and its history and functioning. The training in law that the student receives, will itself provide a broadening experience, but the better the education and the deeper the social awareness, which a student brings to the study of law, the greater will be the value derived from the training. This is why almost every student in the School of Law, first completes one full year of study in one of the foundation Schools of the University.
In order to respond to certain specialist needs, the school also offers a Master’s programme, a Postgraduate Diploma in Human Rights Law, an undergraduate degree programme on a part- time basis for first degree holders in any field and a PhD programme. In addition, it offers a certificate programme directed towards the need of special categories of officials in the public service (i.e., the police, immigration and other law enforcement officers).
The following are the courses offered in the School of Law: i. First Year Programme as approved by the School of Humanities and Social Sciences and School of Education. The only course that is required for entry into the School of Law is English. ii. Second Year First Semester Compulsory Courses § Legal Process § The Law of Contract I: Introduction to Contractual Relations § The Law of Torts I: Introduction to the Laws of torts § Criminal Law I: Introduction to Criminal Law Second Semester Compulsory Courses § The Law of Contract II: Enforceability of Contracts and Remedies § The Law of Torts II: Nominate Torts § Criminal Law II: Specific Offences § Constitutional Law II § Family Law iii. Third Year First Semester Compulsory Courses § Evidence § Land Law and Property Relations § Commercial Law I: Agency and Sales § Administrative Law: Introduction to Concepts and the Zambian Administrative Process § Moot Court
Elective Courses § Human Rights Law The students must select one of the elective courses in the first semester, the other one being available at a later time.
99 Second semester
Compulsory Courses § Land Law and Customary System of Tenure § Administrative Law II: Legal Controls of Administrative Action § Civil and Criminal Procedure § Moot Court Electives § Commercial Law II: Insurance and Negotiable Instruments § Criminology § Human Rights Law in Zambia § Industrial Law A student must select two of the elective courses in the second semester
iv. Fourth Year First Semester Compulsory Courses § Direct Research § Jurisprudence I: Classical and Traditional Theories of Jurisprudence § Business Associations Electives § International Law: Element of International Law § Conflict of Laws § International Trade Law § Intellectual Property and Competition Law A student must choose two out of the elective courses from third and fourth years
iv. Fourth Year Second Semester Compulsory Courses § Directed Research
100 § Jurisprudence I: Law and Society § Company Law Electives International Law II: Law of International Organization
101 CHAPTER FIVE: LEGAL PROCESSES RELATED TO CORRUPT PRACTICES
5.0. INTRODUCTION Criminal procedures seems to be one of the last areas that could be harmonized on international level, since this is the mixture product of the concerned society’s own political, economic, social and cultural components, and historical experiences.1 When discussing the efficient fight against corruption in international for a, however, this aspect of criminal procedure often misleads the international society to overlook the importance of procedural aspects.2 It is needless to say that law enforcement without adequate and efficient means and instruments, is just a “Cattle or Sand.”3 Despite this fact, very limited number of international conventions and declarations of corruption have handled procedural matters up until now.4
5.1. DIRECTOR OF PUBLIC PROSECUTIONS In Zambia the power to institute and undertake criminal proceedings is vested in the Director of Public Prosecutions (DPP). The office of the DPP is created by the Constitution.5 The DPP is appointed by the President subject to ratification by the National Assembly.6The DPP is required to possess the qualifications of a High Court Judge with a bias towards criminal law7. The DPP enjoys security of tenure similar to that of High Court Judges.8 The Constitution also guarantees the independence of the DPP by providing that he shall not be subject to the direction or control of any other person or authority and that the powers shall be vested in him exclusively.9
______
1. K. Lee, “ Criminal Procedure “ What Powers Instruments and Safeguards are necessary for Adequate Law Enforcement”, in Corruption Integrity and Law Enforcement (ed). C. Fijrant and L. Huberts CK Lawer Law International (2002) P. 151 2. Id. 3. Id. 4. The most detailed guidelines in relation to procedural matters so far can be found in conclusions of the 2nd European Conference of specialized services on the fight against corruption 22-29th October, 1997, Tallin, Estonia. 5. Article 56(1) of the constitution 6. Id. 7. Id. Article 56 (2) 8. Id. Article 39 9. Id. Article 56 (7)
102 The functions of the DPP are spelt out as follows:10 (a) to institute and undertake criminal proceedings against any person before any court other than a court martial in respect of any offence alleged to have been committed by that person; (b) take over and continue such criminal proceedings as have been instituted by any other person or authority; and (c) discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority. The aforementioned provisions also apply in respect to the prosecution of offences under the Anti-Corruption Commission Act11 and the Act strengthens this position by stating that no prosecution for an offence under the Anti-corruption Commission Act shall be instituted without the consent of the DPP.12 The DPP may delegate his powers to such public officer or class of public officers as he may specify.13 In this connection, all prosecutors even those from the ACC, the Drug Enforcement Commission (DEC), the Zambia Revenue Authority ZRA, the Zambia Wildlife Authority and National Pensions Scheme authority are formally appointed by and operate under the supervision of the DPP.14 The DPP may also authorize private legal practitioners to conduct prosecutions.15 Thus, the DPP’s office is a key institution in terms of instituting and undertaking any criminal proceedings against any person. The office of the DPP also acts as a check on the police and other investigative agencies by ensuring that investigations are conducted in accordance with the law and principles of human rights.16 Under the Anti-Corruption Commission Act, the DPP may also by notice direct the Commissioner of Taxes to furnish all information in his possession relating to the particular investigation and to produce or furnish any document or a certified true copy of any document relating to such suspected person17. ______10. Id. Article 56 (3) 11. Act No.42 of 1996 12. Section 46 (1) of Act Number 42 of 1996 provides that no prosecution for an offence under part in shall be instituted except with the written consent of the Director of Public Prosecutions. 13. Id Section 47 14. Id Section 9 (1) (b) 15. Submission by the Acting Director of Public Prosecutions, Mrs. Caroline Zulu dated 8th October 2004. P.2 16. Id 17. Id.
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The office of the DPP is charged with responsibility to grant authority to the Anti-Corruption Commission to carry out any investigations under the Act.18 The function of the DPP to prosecute offences under the ACC Act is thus delegated to the ACC. The office of the DPP is represented in four provinces.19 Namely, in Lusaka (City of Lusaka) Central, (Kabwe) Copperbelt (Ndola and Kitwe) and Southern (Livingstone).20 Currently, the DPP’s office has sixteen (16) professionals and twenty seven (27) support staff.21 The ideal establishment according to the 2003 annual report for the Ministry of Justice is forty eight (48) professional staff and forty four support staff.22 The total annual budget for the DPP’s office is one billion seven hundred and sixty two million Kwacha and two hundred and twenty eight thousand four hundred and sixty four Kwacha (K1,762,228,464).23 The amount received in the year 2003 is the sum of one billion and one hundred and ten million Kwacha (K1,110,000,000).24 The DPP’s office has received additional funding from DANIDA in order to procure equipment, furniture, training for prosecutors and technical assistance from USAID in the form of motor vehicles and office equipment and funding for consultancies and technical assistance for training of prosecutors.25
5.1.2 ASSESSMENT OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS. The achievements of the DPP in the recent past include the prosecution of high profile Government officials such as the former head of state, and other high ranking Government officials.26 Another success scored is the formulation of the draft national prosecution policy.27 ______18. Id 19. Id. 20. Id 21. Id. 22. Id P. 3 23. Id. 23. Id. 24. Id. 25. Id. 25. Id 26. Id. at P4 27. Id. P. 3
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These achievements are attributable to the present Government’s political will to expose investigate, and prosecute corrupt practices and to subject persons suspected of having been involved in corrupt practices to the full and due process of the law.28 The current strength of the DPP’s office may therefore be attributable to the following:29
(a) Government commitment to strengthen the institutional capacity of the DPP’s chambers by undertaking institutional and legal reforms commencing with the formulation of the National prosecution policy; (b) Committed staff; (c) Government support; and (d) The fluidity of the statutory provisions which allow the office of the DPP to delegate his prosecutorial functions to other Criminal Justice agencies because the DPP’s office does not have the numerical strength and capacity to prosecute all offences in Zambia.
The weaknesses of the DPP’s office may be cited as follows;30
(a) inadequate resources; and (b) Lack of specialist training with regard to prosecution in general and the prosecution of serious financial crimes in particular. The available staff still require further training in order to face the challenges. (c) Poor Conditions of service; and (d) Insufficient trained prosecutors.
______28. Id. 29. Id. 30. Id at P. 4
105 5.2. INVESTIGATIVE TECHNIQUES There are no universal rules for investigating corruption. However, some of the following elements, if incorporated into national strategies will assist in developing investigative structures able to detect corruption and permit effective investigations to produce information that can be used to develop and apply effective responses. Information derived from investigations should be capable of supporting criminal prosecutors and other responses directed at individuals involved; and measures intended to restructure or reorganize public or private administration to make it more resistant to corruption.31 The autonomy and security of investigations is important both to encourage and protect those who report corruption or assist in other ways and to ensure that the results of investigations whenever they uncover corruption or not, are valid and credible.32 Cases involving “grand corruption” or that have significant transnational aspects raise management issues. For example, cases where the very senior officials are suspects, raise exceptional concerns about integrity and security and are likely to attract extensive media attention.33 Large scale and sophisticated corruption is well resourced and well connected, making it more likely that conventional sources of information will either not have the necessary information or evidence or be afraid to co-operate.34 The magnitude of proceeds in grand corruption cases makes it more likely that part of the overall strategy is the tracing and forfeiture of the proceeds.35 Some of the following techniques have proved highly efficient in the investigation of widespread large-scale corruption.36 5.2.1 Focus Investigations If the results of a corruption investigation suggest that corruption and bribery in a certain public service is widespread, it is advisable to concentrate on the systematic checking of the assets of all possible bribe takers.37 ______31. UN Anti-Corruption Toolkit (2nd Edition, Vienna, February, 2004) P.416 32. Id 33. Id P. 430 34. Id P. 431 35. Id P. 427 36. Id 37. Id P. 433
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For example, certain Government functions “invite widespread” corruption in terms of a large number of officials receiving small scale bribes.38 Branches involved in licensing and permit issuing are good examples.39 A high volume of potential bribe-givers, namely the Public, visit such branches on a daily basis.40 Such an environment breeds bribery as a means to quickly solving the frustration and delays.41 In such cases, an investigation into the working files of the branch will be more effective and efficient, than investigating the financial records of employees.42 Before devoting efforts to any investigations, it is important to evaluate the most cost effective means of deploying staff and focusing investigative energies.43
5.2.2. Terms of Reference
Before starting investigations, clear and comprehensive terms of reference should be drafted. 44 They should contain a comprehensive list of all the resources needed (human, financial, and equipment) to conduct the investigations.45 Particular consideration should be given to the possible need of additional resources to maintain the secrecy of the investigations. It is therefore, essential at the outset to evaluate methods to ensure the confidentiality of the investigation.46 Steps taken to protect the secrecy of the investigations could include:47
(a) Renting non-police or undercover locations and making them secure;
(b) Use of fictitious names to purchase or rent equipment; and
(c) Use of stand alone computer systems not tied into any other Governmental operation. ______38. Id. P. 433 39 Id. 40. Id 41. Id. P. 434 42. Id 43. Id 44. Id 45. Id 46. Id 47. Id
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5.2.3. Policy Document
In addition to the Terms of Reference, a policy and procedure document must be created containing a clear description of the facts giving rise to the investigations, all decisions taken during the investigation, along with their justifications and the reasons for the involvement or non involvement of the senior management of the institution of which the suspect works.48 It should be noted that there can be hidden costs in an investigation, such as loss of morale within the target institution and potential loss of public trust.49 Every investigation must be evaluated on a case–by-case basis with regard to its cost and benefit to the Government and the Public.
5.2.4. Selection of the Investigation Team
The selection of an effective team will be crucial to the success of an investigation.50 Members should possess the specific investigative skills needed, should have proven integrity and high ethical standards and be willing to undertake the work.51 Their backgrounds should be thoroughly checked, including their social and family ties and lifestyle.52 The team must be made aware of the personal implications of the investigations, in particular when undercover work needs to be conducted.53 Skills needed to conduct large-scale corruption investigations include financial investigations skills, undercover and surveillance skills, information technology skills, interviewing and witness preparation abilities, intelligence and analyses, excellent report writing skills and the ability to analyse intelligence.54 ______48. Id. 49. Id. 50. Id 51. Id 52. Id. 53. Id 54. Id
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5.2.5. Proactive Integrity Testing Although such an activity way initially require considerable preparation and resources, it can produce rapid results that serve as an excellent deterrent.55 Close monitoring and strict guidelines are essential to avoid the danger of entrapping a target.56 All integrity testing should be electronically recorded in the interests of fairness to the target and for accurate evaluation of criminal responsibility.57
5.2.6.Financial Investigation One of the most successful ways of producing evidence against corrupt public officials, is to conduct financial investigations to prove that they spend or possess assets beyond the scope of their income.58 Such an investigation can help produce a great deal of evidence of corruption, and can identify illegal assets that might later be confiscated. 59
Financial investigations therefore should also concentrate on the lifestyles, expenditures and property of the suspected persons. 60
5.2.7. Electronic Surveillance, Search, and Seizure Techniques such as wire tapping, the monitoring of electronic communicative and seizure, have limited use in the initial detection of corruption in many countries as human rights safeguards usually prohibit their use unless there is already substantial evidence that a crime has been or is about to be committed.61 The use of intrusive investigative methods is usually restricted to enforcement agencies, as opposed to more general surveillance agencies such as auditors, inspectors or ombudsmen. ______55. Id. 56. Id at P. 435 57. Id at P. 436 58. Id 59. Id. 60. Id 61. Id
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Electronic Communicative using telephones, fax machines e-mail and other technologies may be interrupted and recorded as evidence and physical premises, computers, bank or financial records, files and other sources of evidence may be physically or electronically searched.62 Searchers may target virtually any location where there is a reasonable expectation of finding evidence, including locations associated with the suspected offender or third parties.63 In sum, rather than following only one investigative path, it is advisable to pursue all reasonable leads that may prove useful. 5.3. ZAMBIAN EVIDENTIARY LAW The Criminal Evidence Act of 1898 of the United Kingdom does not apply to Zambian by virtue of the operation of the criminal procedure code.64 This also means that the subsequent amendments to the United Kingdom law do not also apply in this country.
However, the principles of evidence are almost uniform in the common law which we practice by virtue of our historical background as a nation. The situation as it stands in this country in relation to evidence, is that various statutes make specific provisions relating to specific methods of proof and admissibility of evidence in numerous situations. Zambia does not have a comprehensive code on evidence. The following are the major provisions on evidence;
5.3.1 THE ANTI – CORRUPTION COMMISSION ACT
(a) Presumptions of corrupt intention - The Act65 provides that where in any proceedings it is proved that any gratification has been received by any person with the knowledge and acquiescence or consent of the accused person and the court is satisfied, having regarding to his relationship to the accused person or to any other circumstances that such a person has received the gratification, the gratification in the absence of a satisfactory explanation shall be presumed to have been received by the accused person. ______
62. Article 17 (1) the International covenant on civil and political rights, (GA/res/2200A of 12th December, 1966 UNTS # 14668 provides that” No. one shall be subjected to arbitrary to unlawful interference with his privacy family, home, or correspondence”, which has been interpreted in many domestic constitutional and legal provisions as requiring prior authorization by a judicial or other independent authority based on adequate grounds to believe that a crime has been or will be committed and that the invasion on privacy is needed to prevent the crime or gather evidence of it. 63. Article 50 paragraph 1 of the United National Conversion Against Corruption requires states parties “… to the extent permitted by the basic principles of its domestic legal system and in accordance with the conditions prescribed by its domestic law, to ensure that electronic surveillance techniques may be used in corruption cases. 64. Section 360 of the Criminal Procedure Code chapter 88 of laws of Zambia. 65. Section 49 of the Anti-Corruption Commission Act No. 42 of 1996.
110 (a) Corroborative evidence of pecuniary resources or property - The Act66 provides
that the fact that an accused person is in possession of pecuniary resources or
property disproportionate to his known sources of income for which he cannot satisfactorily
account may be proved and may be taken into consideration by the court as corroborating
the testimony of any witness in such proceeding that the accused person accepted or
obtained or agreed to accept or attempted to obtain the gratification corruptly as an
inducement or reward.
(c) Affidavit evidence - The Act67 provides that the court may at any stage of the proceedings
direct that any specified act may be proved at the trial by affidavit with or without the
attendance of the deponent for cross examination.
(d) Evidence of custom indadmissible. The Act68 provides that it shall be no defence
that any gratification solicited or accepted or obtained or agreed to be accepted
given offered or promised is customary in any profession, business, trade, vocation or
calling.
(e) Absence of power or authority no defence- The Act69 provides that where any public officer
has corruptly solicited, accepted obtained or agreed to accept or attempted to receive or
obtain any gratification, it shall not be a defence in any trial in respect of an offence that;
______66. Id Section 50 67. Id Section 51 68. Id. Section 52 69. Id Section 53
111 (i) the appointment, nomination, or election of such person or any other person as a public
officer was invalid or void;
(ii) such public officer or any other public servant did not have the power, authority or
opportunity of doing or of forbearing from doing the act favour or disfavour to which
the gratification related;
(iii) He did not actually do any act, favour or disfavour to induce the gratification or
never had the intention of doing so.
(f) Defences - The Act 70 provides that in any proceeding for an offence under the
Act it shall be a valid defence that the gratification offered or accepted is an
entertainment or a casual gift.
5.3.2 THE EVIDENCE ACT
This very short Act71 of Parliament contains only nine(9) sections which principally
deal with admissibility of old forms of documentary evidence, trade, business or
provisional records in criminal proceedings. This law was last amended in 1968.72
By its very title this Act was meant to be the focus of the evidence law in Zambia,
which it’s not title and for some unexplained reason has never been. The Act is
obviously obsolete and totally insufficient to deal with modern forms of
documentation and computer generated evidence.
______70. Id Section 58 71. Chapter 43 of the laws of Zambia 72. Act Number 3 of 1968
112 5.3.3 THE EVIDENCE (BANKERS BOOKS) ACT.
This very short Act73 of parliament contains only nine (9) sections; six of which are
related to evidence. This law essentially provides for the mode of proof of entries
in Bankers Books, mode of verification; orders by the court to inspect a bankers
books and restrictions of disclosure by Bankers or officers of a Bank.
5.3.4 THE HIGH COURT ACT
The High Court Act 74 has provisions on evidence as follows; (a) the giving of evidence by witnesses; evidence of customary law and the recording of evidence.75
(b) proof of Government Gazettes in Zambia and from any commonwealth
country by way of mere production.76
(c) objections to evidence during trial and the taking of evidence from witnesses by the court.77
5.3.5. THE SUBORDINATE COURTS ACT The Subordinate Court Act78 also contains provisions on evidence on the following matters. (i) Summoning witnesses; (iii) Compelling attendance and penalty for non-complaince; (iv) Refusal to be sworn or to give evidence; (v) By stander may be required to give evidence; (vi) Allowances to witnesses; (vii) Defraying allowances to witnesses; (viii) Inspection of real or personal property; (ix) Witnesses as to the African customary law; (x) A person not entitled to inspection of copy of record of evidence save as may be expressly provided by any rules of the court; (xi) Recording of evidence before subordinate courts; and (xii) Perjury ______73. Chapter 44 of the laws of Zambia 74. Chapter 27 of the laws of Zambia 75. Id. Sections 27 to 38 76. Id order 5 rule 4 77. Id Order 5 Rules 2 to 31 78. Chapter 28 of the Laws of Zambia
113 Furthermore, the Subordinate Court Act79 provides for the following evidential matters. (i) Ordering witnesses out of court; (ii) Preventing communication with witnesses; (iii) Admission of entries in books of accounts; (iv) Production of Government Gazettes as evidence; (v) Proof of proclamations and other official Government Communications; (vi) Reference to books of science, maps charts etc; (vii) Use of foreign law; (viii) Use of public maps; (ix) Examined or certified copies of documents admissible in evidence; and (x) Production of documents without giving evidence 5.3.6 JUVENILES ACT The Juveniles Act80 provides for the following evidential matters.81 (i) Presumption and determination of age; (ii) Sittings of Juvenile courts; (iii) Restrictions on entry of children in court; (iv) Power to clear court; (v) Evidence of a child of tender age; (vi) Prohibition of publication of certain matters; (vii) Power to proceed with the c ase in the absence of a Juvenile; (x) Extension of power to take depositions; (xi) Admission of deposition of Juvenile; (xii) Attendance in court of parent of Juvenile; (xiii) Evidence of husband or wife of accused; and (xiii) Evidence of wages
5.3.7 OTHER STATUTES
In addition to the foregoing, there are many other statutes which contain provisions that have evidential value.
______79. Id Sections 41 to 52 80. Chapter 53 of the Laws of Zambia 81. Id Sections 118 to 129
114 These include the; (a) Authentication of Documents Act82 (b) Acts of parliament83 (c) Banking and Financial services Act84 (d) Criminal Procedure Code Act85 (e) Companies Act86 (f) Competition and Fair Trading Act87 (g) Copyright and performance Act88 (h) Extradition Act89 (i) Interpretation and General provision, Act90 (j) Inquests Act91 (k) Mutual Assistance in Criminal Matters Act92 (l) National Assembly (Powers and Priviledge) Act93 It is clear that whereas there is no need to reinvent rules of evidence because of the international standards set within the common law, it is necessary to codify the many rules and principles of evidence available in the many statutes in Zambia in one single evidence code. This has been achieved elsewhere in the world. Examples include the Evidence Code of Canada, the Australian evidence Act, Evidence Act of South Wales, and in the United Kingdom there is now in force the Police Evidence Act of 1984. 5.4. JURISDICTION The Criminal Procedure Code94 provides that any offence under the Penal Code95 may be tried by the High Court. However, any offence under any written law, other than the Penal Code, may when any Court is mentioned in that behalf in such law be tried by such Court or by the High Court96 When no Court is so mentioned such offence may, subject to the other provisions of the Criminal Procedure Code, be tried by that court or by any Subordinate Court97 ______82. Chapter 75 of the Laws of Zambia 83. Chapter 3 of the Laws of Zambia 84. Chapter 387 of the Laws of Zambia 85. Chapter 88 of the Laws of Zambia 86. Chapter 388 of the Laws of Zambia 87. Chapter 417 of the Laws of Zambia 88. Chapter 406 of the Laws of Zambia 89. Chapter 94 of the Laws of Zambia 90. Chapter 2 91. Chapter 86 92. Chapter 98 93. Chapter 12 94. Chapter 88 of the laws of Zambia 95. Chapter 87 of the Laws of Zambia 96. Section 5 of the Criminal Procedure Code Act, Chapter 88 of the laws of Zambia 97. Id Section 5 (2)
115 Furthermore, it is provided that in the exercise of their criminal Jurisdiction Subordinate Courts shall have all the powers and jurisdiction conferred on them by the Criminal Procedure Code or any other law for the time being in force.98 Magistrates are given the Jurisdiction appropriate to their class of court in criminal matters by the Criminal Procedure Code.99
Thus, a subordinate court of the first, second, or third class may try any offence under the Penal Code or any other written law and may pass sentence or make any other order authorized by the Penal Code or any other written law provided that: ------100 (a) a Subordinate Court presided over by a Senior Resident Magistrate shall not impose any sentence of imprisonment exceeding a term of nine years; (b) a Subordinate Court presided over by a Resident Magistrate shall not impose any sentence of imprisonment exceeding a term of seven years; (c) a Subordinate Court presided over by a Magistrate of the first class shall not impose any sentence of imprisonment exceeding a term of five years; and (d) A Subordinate Court other than a court presided over by a Senior Resident Magistrate, a Resident Magistrate or a Magistrate of the first class, shall not impose any sentence of imprisonment exceeding a term of three years. Presently, offences under the Anti-Corruption Commission Act 101 are prosecuted in the first instance in the Subordinate Court. The present, arrangement has several disadvantages. Firstly, the majority of the magistrates in the Subordinate Courts are not lawyers, yet the detection and prosecution of offences of corruption has become increasingly specialized, requiring the best skills and knowledge on the bench. Secondly, certain cases of corrupt practices give rise to constitutional questions Consequently; Subordinate Courts are excluded from adjudicating and deciding on constitutional questions. As a result, constitutional questions are referred to the High Court and later sent back to the Subordinate Court for continued trial. ______
98. Section 19 of the Subordinate Courts Act, Chapter 28 of the laws of Zambia 99. Porter, Magistrates Handbook, Lusaka May 1968 100. Act Number 42 of 1996 101. UN Anti-Corruption Toolkit, Supra note 15, at P. 418
116 This is dilatory. Thirdly, the fact that criminal Jurisdiction is vested in the Subordinate Court, tends to procrastinate or to delay the disposal of cases and contributes to congestion in the subordinate Courts, which in any event process the bulk of cases in the criminal justice system in general. Needless to mention that Subordinate Courts, are also burdened with minor civil claims.
5.5. WITNESS PROTECTION MECHANISMS Victims and witnesses will not come forward if they fear retribution. 102 Precautions against retribution are commonly incorporated into instruments dealing with corruption and organized crime especially where the problem is particularly acute103 That is particularly true if cases of official corruption where those who have information are usually relatively close to a corrupt official and the status of the official affords him or her opportunities to retaliate.104 Victims, witnesses and informants must receive protection from those under investigation. Under Zambian law there are no clearly defined mechanisms for the protection of witnesses in public corruption cases. There exists a number of provisions related to witnesses under the Anti- Corruption Commission Act.105 For instance, there are provisions for Tender of Pardon and Certificate of Indemnity as means of protecting informants. Similarly, under the Penal Code, 106 there are provisions proscribing the deception of witnesses, interference with witnesses; and contempt of court arising from court proceedings.107 At the same time, these laws provide a wide range of criminal penalties against witnesses such as: perjury; refractory witnesses; giving false information; giving contradictory testimony on oath; destroying evidence; or giving false information to a Public officer.108 Clearly, the provisions referred to above, tend to penalize as opposed to protecting witnesses.
______102. UN Anti-Corruption Toolkit, Supra note 15, at P. 418 103. Id. 104. Recent international provisions dealing with intimidation or retribution include: United Nations Convention against Corruption Articles 32-33 (Protections of victims and witnesses) (Protection of Persons who report corruption). United Nations Convention Against Transnational Organized Crime article 23 (requiring state parties to provide criminal penalties for obstruction of justice). 105. Anti- Corruption Commission Act Number 42 of 1996 106. Penal Code Act Chapter 87 of the Laws of Zambia 107. See Sections 112 and 116 of the Penal Code. Chapter 87 of the Laws of Zambia 108. See Section 104A 108, 109 111, and 116 of the Penal Code Chapter 87 of the Laws of Zambia
117
Thus, under the current legal regime, there are no provisions that deliberately target the protection of witnesses against intimidation, harassment or victimization. There are also no legislative measures that are aimed at encouraging potential witnesses to co-operate with law enforcement agencies in the fight against corruption.
5.6. SENTENCING The assessment of the proper sentence is difficult and is a very real test of a judicial officer’s wisdom. A sentence must not be too heavy, but reasonable and proportionate to the offence, and a margin must be kept in reserve for more aggravated offences under the same section.109 However, punishment must not be too light or the law is brought into contempt.110 There are five objectives of punishment and these objectives have also been developed as the basis of sentencing in Zambia; 111
(a) To fit the punishment to the crime (retribution or proportionate theory); (b) To deter potential offenders by example from committing crime (general deterrent theory); (c) To secure for the public a period of protection from the offender; (protective or preventive theory); (d) To deter the particular offender from future crime (specific deterrent theory); and (e) To enable the offender to take his place as a responsible and law abiding member of society (reformative or rehabilitative theory). It is important to appreciate that in practice, the courts do not apply any one of the theories to the exclusion of others.112Sentencing is a complex task.113What the courts should endeavour to do is to hold in balance the various objectives of penal policy.114
______109. Swarbiek, Republic of Zambia, Magistrates, Handbook, (Sixth Edition 1991) P. 78 110. Id. 111. Id. at P. 79 112. Id. 113. Id 114. Id
118 The final decision is usually a compromise between these objectives.115 Each objective is given a different weighting according to the court’s view of the nature of the offence and the circumstances of the offender.116The first and foremost consideration is the public interest. If after taking into account all the circumstances of the case, and the court is convinced that it is the public interest,117 there is no error in principle to impose a severe sentence in order to deter others who might be tempted to make easy money by way of similar crimes.118
5.6.1. Considerations taken into account in Sentencing. In almost every case there are some circumstances, which lean in favour of severity, and some lean towards leniency. Therefore, striking a proper balance between the two extremes is always a delicate balance. Considerations, which may properly weigh with a court in determining sentence are as follows: 119 (a) The injuriousness of the class of offence to the community; (b) The prevalence of the offence and the difficulty of its detection; a stage may be reached at which after due warning from the bench, special deterrent sentences may be imposed;120 (c) The aggravating or mitigating circumstances surrounding the commission of the act or omission in question; (d) The attitudes of public opinion to a particular class of offence. While a judicial officer cannot take his ethical or penal standards from the community, it is unfortunate if the community is scandalized either by the severity or by the leniency with which a particular class of offence is treated;
______115. Id. 116. Id. 117. Observation of Justice Windham in Macdonald V Reginam 159 R & N (11) 157 118. Id 119. In the decided case of the People vs Syakalongo 1977 ZR R61 it was held by the Supreme Court to Zambia that one of the principles on sentencing is for the purpose of deterring other would be wrong doers from committing similar offences, and it is perfectly proper to refer to the prevalence of an offence and to use that prevalence as basis for imposing a deterrent sentence. 120. Swarbiek supra note, 64 at P.79
119 (e) The antecedents of the accused: while courts of appeal have repeatedly stated that while a good record may properly dictate a more lenient sentence, a bad record must never be allowed to provoke a court to impose a sentence greater than the offence in itself calls for. Previous convictions are never more than an argument against leniency. (f) The youth or age and the health of the accused: the Courts cannot ordinarily determine a sentence by reason of the ill-health of a convicted person but there may be exceptional cases where the court would be merciful because of the exceptional results which might ensue from a prison sentence by reason of the convict’s state of health. Young offenders, pregnant women and nursing mothers should be kept out of prison if possible, old people and sick people should ordinarily not be given a term of imprisonment which may possibly result in their dying in prison. Where ill health is to be taken into account, there must be adequate medical evidence, either viva voce, or at least by a written certificate; 121
(g) The probable effect on the accused of the sentence contemplated: Imprisonment is inevitable in some cases but where it would not be improper to impose some other form of punishment, imprisonment should be avoided. The stigma and severity of punishment imposed by imprisonment varies with the standard of living and individual circumstances of every convict. An important factor which makes judicial officers anxious to keep a person out of prison if they can, is the possible corruption of first offenders by hardened criminals. This is particularly so in prisons where there are no facilities for segregating first offenders and persons convicted of minor offences from hardened criminals; The maximum punishment specified for the offence: the maximum is obviously intended to be reserved for the worst possible instances of the offence.
______121. The People v Zulu 1974 ZRL. P. 58
120 There should be a weighting of the gravity of the circumstance of the particular offence in relation to worst circumstances which could attend an offence against the same section of the law122 and the intrinsic value of the subject matter: the value of the subject matter of the crime should also be taken into account in appropriate cases.123
(h) However, the fact that the subject matter of the charge is of small value may not necessarily be a mitigating factor; the nature and intended use of the subject matter may nullify the possible effect of the small value; for example the theft of a small quantity of explosives.124 The source of concern in Zambia is the apparent disparity in some sentences meted out by the courts for similar offences.
5.6.2. Forfeiture law and recovery of assets There are essentially two approaches to forfeiture of assets, namely, criminal forfeiture based on the United Kingdom (UK) system effected after the conviction and civil forfeiture based on the United States of America (USA) System which is not predicated on conviction.125 In the former, proceeds are confiscated through a civil action after the accused has been convicted. In this sense, it works like a normal civil action. That is to say, the state obtains a money judgment against the accused for the amount of the benefit of the crime and the judgment can be executed against assets. There is, thus, no need to demonstrate that the assets are stained. Civil forfeiture also allows the state to confiscate the proceeds of the crime through a civil action against the property without the need to obtain a criminal conviction against the owner in the first place.126 In that instance, the state has to prove that the assets are tainted.127
______122. The People v Chipeta 1970 ZR. P.83 123. The People v Chipeta 1970 ZR. P.83 124. The People v Chilufya 1978 ZR 226 125. National Prosecution Authority of South Africa Acts and Policies. http:# www.ndpp. 126. Id 127. Id.
121
That, is to say, it has to be proved that the assets are either the proceeds of crime or have been used to commit a crime. Proceeds of crime can either be the direct proceeds or property representing the proceeds. International experience demonstrates that asset forfeiture is a vital part in the fight against corruption. Not only does it assist to make the point that corruption does not pay, but also to employ the assets seized in the fight against corruption.
The following underscore the importance of asset seizure in the fight against corruption;128
(a) It has an important deterrent effect by targeting where it hurts most the pocket; (b) Even where leaders of syndicates have been convicted, civil forfeiture has proved valuable in ensuring that the business and other assets used by the syndicate do not remain behind for use by a new leadership; (c) The heads of syndicates are seldom directly involved in crime and it is notoriously difficult to convict them of any offence. With civil forfeiture, the state can seize the assets and hurt the syndicate heads financially even if they cannot be convicted of an offence. Thus, it helps to deter crime by making it less profitable; (d) Civil forfeiture only requires proof on the balance of probabilities; (e) Civil forfeiture has been particularly successful against attempts by organized crime in using increasingly sophisticated methods to conceal real ownership of assets through mediums such as front companies, trustees or nominees’ and (f) It has enabled the state to close down organized crime infrastructure such as drug houses, bars and clubs used for criminal activities. An example is the a Civil Forfeiture Reform Act of 2000 of the United States of America, which was signed into law by former President Clinton on 25th April, 2000. The passage of the law represented a seven year effort to reform civil assets forfeiture law. The law made eight fundamental reforms:129 ______128. Id. P.2 129. The Civil Asset Forfeiture Reform Act of 2000, congressional record remarks of Henry Hyde and others 9 Crime Lynx today ) P.1
122 (a) the reform required the government to prove by a preponderance of the evidence that the property is subject to forfeiture; (b) the reform provided that property can be released by a Federal Court pending final disposition of a civil forfeiture case, if continued possession by Government would cause the property owners substantial hardship such as preventing the functioning of a business or leaving an individual homeless and the likely hardships outweighs the risks that the property will be destroyed, damaged, lost, concealed or transferred if returned to the owner; (c) The reform provided that property owners who substantially prevail in court proceedings challenging the seizure of their property, will receive reasonable attorney fees. In addition, the reform allowed a court to provide counsel for indigents if they are represented by appointed counsel in related criminal cases; (d) The reform eliminated the cost bond requirement under which a property owner had to post a bond of the lesser USD 5000 or 10 percent of the value of the property seized merely for the right to contest a civil forfeiture in Federal court. The reform provided that if a court finds that a claimant’s assertion of an interest in property was frivolous, the court can impose a civil fine; (e) The reform created a uniform “innocent defence” for all federal forfeiture statutes, importantly, the defence protects property owners who have given timely notice to the police of the illegal use of their property and have in a timely fashion revoked or made a good faith attempt to revoke permission to use the property from those engaging in the illegal conduct. (f) The reform allowed property owners to sue the Federal Government for compensation for damage to their property when they prevail in civil forfeiture action; and The reform provided a uniform definition of the forfeitable proceeds of criminal Acts, International experience is therefore that forfeiture of assets is a vital cog in the overall strategy to combat corruption.
123
In Zambian provisions relating to forfeiture are dispersed over several Acts of Parliament. To begin with, the Anti-Corruption Commission Act130 provides that all offences under the Act shall be enquired into, tried and otherwise dealt with in accordance with the Criminal Procedure Code131 and the Penal Code132 In view of the foregoing, the Penal Code applies to the Anti – Corruption Commission Act. To this end, the Penal Code133 provides for “post conviction” forfeiture of any property which passed in connection with the commission of certain specified offences.132 Under this provision, if the property cannot be forfeited or cannot be found, the court has power to assess the value of the property and the payment of the assessed value may be enforced in the same manner and subject to the same payment of a fine after conviction. Thus, the Penal Code134 offers an extremely powerful mode of post-conviction forfeiture and appears to offer the best practice in corruption cases. However, this provision is presently very limited in its application for two main reasons. Firstly, it was meant to apply in relation to seven offences under the penal code; six of which have since been repealed.135 The amendment only left one offence to which this forfeiture law may apply; Namely, the offence of “compounding penal actions.”136 Secondly, the offence of compounding penal actions does not exist under the Anti-Corruption Commission Act.137 In addition, the Penal Code provides for post- conviction forfeiture of property used for or derived from the commission of an offence.138 However, this provision is restricted specifically to the offence of “Theft of motor vehicle”139 This forfeiture provision can, therefore not be used in its present form in corruption cases. The Penal Code also provides for post-conviction forfeiture in the following situations:
______130. Act Number 42 of 1996 131. Chapter 88 of the Laws of Zambia 132. Part 1 of the Penal Code Chapter 87 of the Laws of Zambia sections I - 42 133. Section 29 of the Penal Code Chapter 87 of the Laws of Zambia 134. The offences were repealed by the Corrupt Practices Act Number 14 of 1980 135. Section 29 of the Penal Code Chapter 87 of the Laws of Zambia 136. Corrupt Practices Act Number 14 of 1980 137. Section 114 of the Penal Code provides that any person who having brought or under pretence of bringing an action against another person upon a penal Act or statute in order to obtain from him a penalty for any offence committed or alleged to have been committed by him compounds the action without the order or consent of the court in which the action is brought or is to be brought, is guilty of an misdemeanour. 137. Act Number 42 of 1996 138. Section 28 1 (B) of the Penal Code Chapter 87 of the laws of Zambia. 139. Id Section 28 1A
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(a) forfeiture of dangerous weapon, offensive weapon or instrument of house breaking used for the commission of any offence related to burglary, house breaking and similar offences.140 This provision too in its present form cannot be available in corruption cases. (b) Forfeiture of forged bank note or currency note, or of any counterfeit coin or any stamp mould, tool instrument, machine, press or any coin, bullion or metal used or employed in the commission of any such offence.141 In its present form this forfeiture provision is not available in corruption cases. (c) Post conviction forfeiture of diamonds or emaralds in respect of which an offence for illegal possession has been committed142
Although the Anti-corruption Act143 brings into play the provisions of the Penal Code,144 as demonstrated, the forfeiture provisions under the Penal Code are of no assistance at all in corruption cases. In addition to the provisions of the Penal Code, the Anti-corruption Commission Act specifically deals with forfeiture or forfeiture related situations as follows:
(a) the Act provides for post conviction restitution to the rightful owner of the amount or value of any gratification; or where the rightful owner cannot be ascertained or traced the amount of the value forfeits to the state through the general revenues of the republic145 (b) the Act146 provides for post conviction recovery of the amount or value of any gratification ordered in terms of the Criminal Procedure Code147 by way of distress. ______140. Section 307 of the Penal Code as amended by SI No. 63 of 1964 and No. 5 of 1972 141. Section 373 of the Penal Code chapter 87 of the Laws of Zambia 142. Section 322(1) of the Penal Code is amendedly Ac t No. 5 of 1972 143. Act No. 42 of 1996 144. Part 1, Sections 1 to 42 of the Penal Code Chapter 87 of the Laws of Zambia 145. Section 42 of the Anti-Corruption Commission Act, No. 421 of 1996 146. Chapter 88 of the Laws of Zambia Sections 308 and 309. 147. Section 44 of the Anti-Corruption Commission Act No. 42 of 1996.
125
(c) The Act148 provides for recovery of any gratification from an agent by the principal as a civil debt. Under this provision recovery will not depend on the agents conviction of an offence, but will be possible even when the agent has been acquitted of the offence. The provisions on forfeiture in the Anti-Corruption Commission Act are supplemented by the corrupt Practices (Disposal of Recovered Property) Regulations 2004.149 Under this subsidiary legislation “recovered property” is defined to mean any monies, property or thing of any description which was the subject of and was recovered during the course of an investigation into any offence alleged or suspected under the Anti-Corruption Commission Act. To this extent, the regulations150 provide for pre-conviction forfeiture of property where; (a) the rightful owner leaves Zambia to evade the investigation or prosecution; (b) the rightful owner absconds; (c) the rightful owner cannot be traced or ascertained; or (d) the person in possession of the property admits involvement and agrees to surrender such property because of the involvement. Under these regulations no forfeiture of property will occur unless a prescribed notice is issued and three months lapses without a claim being lodged. Under the Prohibition and Prevention of Money Laundering151 any property or proceeds of crime seized for the purpose of any investigation or proceedings under the Act or for the purpose, of any prosecution under any other written law, is liable to forfeiture upon an application to the court where no prosecution or proceedings are commenced within six months or where no claim is made and three months lapse after the publication of a statutory notice. ______148. Statutory instrument number 58 of 2004 149. Id. Regulation 3 150. Id. Regulation 3 151. Sections 16 to 21 of the prohibition and prevention of money laundering Act No. 14 of 2001
126 Where property is seized under the Act, the authorized officer who effected the seizure may at any time before it is forfeited under the Act, order the release of the property to the person from whom the property was seized if the officer is satisfied that the property is not liable to forfeiture under the Act and is not otherwise required for the purpose of any investigations or proceedings under the Act or for the purpose of any written law.152 In such a case, the officer effecting the seizure or the state or any person effecting the seizure on behalf of the state shall not be liable to any civil proceedings by any person, unless it is proved that the seizure and release had not been effected in good faith.153 Any property forfeited under the Act vests in the state.154 It is clear from the preceding analysis that the law relating to forfeiture of assets is not harmonized. In view of the repeal of certain sections in the Penal Code, the provisions on forfeiture in the Penal Code do not offer any meaningful assistance. The forfeiture provisions under the Anti-Corruption Act are in their present form, poorly defined and restricted to post – conviction situations, except in the case of corruption by agent where gratification is recoverable by civil process where the agent has been convicted or acquitted. The forfeiture provisions contained in the subsidiary legislation under the Anti-corruption Act and the Prohibition and Prevention of Money Laundering Act, are the most preferred methods of forfeiture particularly by the Task Force on Corruption. The poor state of the law as it is presently formulated and the fragmentation of forfeiture provisions does not present the best possible practices generally. For these reasons, there is need to revisit the entire framework of forfeiture law as it obtains generally and in relation to corruption cases in particular. Our proposal is that all forfeiture provisions under various Acts of Parliament referred to above should be well articulated and consolidated in a stand-alone legislation. ______152. Section 16 of the prohibition and prevention of money laundering Act Number 14 of 2001 153. Id Section 16 (2) 154. Id Section 20
127 5.7 THE TASK FORCE ON ECONOMIC PLUNDER.
On 15th July 2002, President Mwanawasa set up a Task Force on Economic Plunder comprising sixty (60) officers from the Zambia Police Service, Drug Enforcement Commission, (DEC) Zambia Security Intelligence Service and the Anti-Corruption Commission (ACC). 155The Director General of the Anti-Corruption Commission (ACC) and the Commissioner of the Drug Enforcement Commission are members of the Task Force. Initially the Command was led alternately by the Inspector General and the DEC Commissioner, while the Director of Public Prosecutions (DPP) was the overall Chairman of the Task Force. Eventually, Mr. Mark Chona was appointed as Chairman of the Task Force in January 2003. The Task Force is not a creature of any specific statute or statutory provision. It is an adhoc administrative arrangement initiated by the executive branch of Government to do the following;156
(i) to investigate suspected cases of theft, abuse of authority of office and corruption arising during the period 1991 to 2001; (ii) to prosecute the cases on the basis of the evidence collected and when the DPP determines that prosecution is warranted; (iii) to recover stolen Government assets; and (iv) to build capacity to investigate and prosecute complex financial crimes in Zambia and make recommendations on appropriate anti-corruption measures to minimize future abuses. The operations of the Task Force are run by officers from existing law enforcement agencies who have imported into the Task Force the powers and functions that they have under their various enabling statutes and institutions.157 ______155. AW. Chanda, National Integrity Systems Country Study Report Zambia 2002 (Published by transparency International Zambia 2002). 156. Submission from the Task Force dated 11 th November 2004 157. The Police Service Act Chapter 107 of the Laws of Zambia. The Anti-Corruption Commission Act No. 42 of 1996. The Prohibition and Prevention of Money Laundering Act No. 14 of 2001.
128 The coming together of these law enforcement agencies to investigate and prosecute cases is intended to complement the various enforcement agencies by bringing together their various competences and disciplines which no single law enforcement agency currently possess. In addition, the following reasons may be cited in support of the decision to institute the Task Force:158
(a) Current investigative wings are either ill equipped or simply incapable of handling most of the cross – cutting crimes. (b) Zambia Police Service unfortunately lacks the resourcesfullness to handle these cases on their own. However, combined with others a collective genius may be created. (c) Almost all countries with serious crimes have special wings created for the sole purpose of reducing such crime. The South Africans have the South African Police Services and also have Scorpions, as an organized but separate unit to fight serious crimes. The British have their Scotland Yard and the Americans their FBI. The Task Force therefore represents a strong political will on the part of the current political leadership to combat corruption. President Levy Mwanawasa has indicated that the Task Force was not constituted to take over from existing institutions, but rather, was formed to perform a specific mandate.159 That is to say, to investigate cases and recover assets derived from corrupt practices for the period 1991 to 2001. There is no time frame set for the Task Force to discharge its mandate. Apart from the political will demonstrated by the current political leadership, the Task Force has also been supported by the donor community. For instance, the United States of America Government has supported the Zambian Government in its battle against corruption by committing the sum of USD 2 million towards the fight.160 ______
158. The Post Tuesday 25th May 2004 “Disbanding The Task Force” 159. Zambia Daily Mail Monday 23rd August 2004, “6 billion plundered loot up for sale”. 160. Submission made by the Task Force on 11th November 2004.
129 DANIDA has also extended financial support to the office of the Director of Public Prosecutions to procure equipment, furniture, training for prosecutions and provision of technical assistance. Various donors have also publicly supported and lauded the efforts by the Zambian Government to combat161 corruption. Consequently, when the Task Force to investigate alleged plunder of national resources was formed, many Zambians looked forward to swift action and prosecution of suspects.162 That the Task Force has recorded one conviction in three years is a source of concern.163 Further, concerns have been expressed about the pace at which the cases are being investigated and prosecuted.164 In fact recently, President Mwanawasa indicated that 80% of the cases involving plunder of national resources have not been take to court due to the slow pace at which the cases are being handled.165 The delay in the investigation and prosecution of the cases is attributed to the complexity of the cases.166 Notwithstanding, the Task Force on corruption has recovered over 90 billion Kwacha in fixed and movable assets; a total of 234 assets within and outside Zambia have been identified or traced; 155 properties valued at K72 billion have been inspected; 420 corporations within and abroad are under investigation and eight high profile cases are being prosecuted.167 ______161. Saturday Post, Saturday 15th May 2004 “Mozena Backs Fight Against corruption.” 162. Zambia Daily Mail, Friday 23rd April 2004 “UK India to help nab Plunderers; “ Saturday Post, Saturday 29th May 2004 “Mozena urges Government to fight corruption,” Times of Zambia Thursday 23rd September 2004 “we ‘ll continue to Fund graft Crusade;” The Post, Saturday 23rd October 2004. “Take corruption fight seriously envoy urges Government, politicians”. 163. Sunday Mail, Sunday 5th October 2003, “Task Force: is it living up to public expectations ” 164. National Mirror 3 – 9 April 2004 “Task Force needs new lease” 165. Zambia Daily Mail Wednesday 29th September 2004 “Sata welcomes more to reshuffle Task Force” Dr Mumba reported Government is not impressed the vice president with the speed at w hich the Task Force conduction its investigations into the plunder of natural resources. 166. The Post Thursday 4th March 2004 “Levy Explains the delay in corruption cases.” 167. Times of Zambia 17th March 2004 “Task Force has failed to provide Justice”
130 However, in the course of the year President Mwanawasa indicated that Government was considering disbanding the Task Force on corruption following calls that the state should strengthen already existing institutions such as the Anti-corruption commission, the Drug Enforcement Commission and the Zambia Police Service.168 Concerns have also been expressed that the Task Force lacks a clear policy and inadequate institutional framework to combat corruption.169 On one hand, it has been argued that calls for the abolition of the Task Force should not be entertained, what should be entertained, instead, is the strengthening of the Task Force.170 On the other hand, it has been argued that the existing law enforcement agencies such as the Anti-corruption commission, Police Service and Drug Enforcement Commission should be strengthened.171 Eventually, President Mwanawasa announced that Government will not disband the Task Force investigating the plunder of the national resources.172 He would instead strengthen the Task Force. Recently President Mwanawasa announced that the Task Force has been reinforced with the inclusion of the Inspector General of Police, Commissioner of the Drug Enforcement Commission and the Director General of the Anti-Corruption Commission.173 President Mwanawasa said the decision to include the three law enforcement bodies chiefs was taken by the cabinet.174 However, it has been observed that there is nothing new in co- opting the heads of the Police, the Drug Enforcement Commission and the Anti-Corruption Commission because the law enforcement agencies have been always part of the Task Force.175 There has never been any analytical evaluation of the operations of the law enforcement agencies constituting the Task Force, inclusive of the performance of the Task Force itself. It would appear that the creation of the Task Force is an indirect indictment against the existing statutory law enforcement agencies of Government. ______
168.The Post, Wednesday 12th May 2004 “Abolishing the Task Force” 169. Saturday Post, Saturday 8th May 2004, “Disband The Task Force.” 170. Times of Zambia, Friday 14th May 2004 “ I want Disband Task Force” 171. Zambia Daily Mail Tuesday 21st September 2004 “Task Force Reinforced”. 172. The Post, Thursday 23rd September 2004 “Dr. Chanda calls for the strengthening of National Integrity System”. 173. Article 6 (1) provides that subject to the other provisions of the constitution and any other law, the power to constitute offices for the Republic and the power to abolish any such offices shall vest in the president. 174. The post, Tuesday 25th May 2004 “Disbanding The Task Force”. 175. Id.
131 While the constitution176 mandates the President to create or abolish public offices, the President may not by the same token create any public institution without specific legislation. Thus, the Task Force is adhoc in its nature and cannot stand alone as an institution without a law creating it. Notwithstanding the creation of the Task Force, the powers to institute or terminate criminal proceedings against any person, as stated elsewhere in this report, vests in the Director of Public Prosecutions. What the Government needs to do is to review the operations of the Task Force by reviewing their terms of reference, their reporting structure and assess the competencies of the team to determine whether the current team possesses the competences to achieve the terms of reference or their objectives.177 More importantly, there is need to establish a legal framework in which the Task Force should operate and also to rationalize the relationship of the Task Force with other existing law enforcement Agencies.178 To this end, there have been calls to legalize the Task Force so that its operations are in conformity with the aspirations of the people and the laws of the land.179 The need to legalize the Task Force is also vindicated by the fact that there is no clear policy or guidelines for the disposal of the properties forfeited by the state through the Task Force. For instance, the Minister for Finance and National Planning Ng’andu Magande indicated initially that a National Convention will be convened to discuss the modalities of distributing property recovered by the Task Force.180 Two months later, the same Minister before the convention was convened, announced that the Government will auction the property and that the proceeds would be deposited in a special account at the Bank of Zambia.181 Again, two months later, President Mwanawasa, tasked Commerce Minister Dipak Patel and his Tourism counterpart Patrick Kalifungwa to liase directly with the Task Force, Cabinet Office and the Ministry of Finance to facilitate interim management of seized property.182 ______176. The post, Tuesday 25th May 2004 “Disbanding The Task Force”. 177. Id 178. Zambia Daily Mail Saturday 31st January 2004. “Legalize Task Force Demands Bishops 179. Zambia Daily Mail 15th November 2003, “State to Decide on Distribution of property Recovered by the Task Force 180. Zambia Daily Mil Saturday 24th January 2004. “State to Auction Property Recovered from suspected plunderers” 181. Times of Zambia, Tuesday 23rd March 2004, “Liase with Task Force, Levy” 182. The Post, Monday 17th May 2004 “Nkunika Asks Task Force to Handover Houses to his Ministry”.
132 In a twist of events, subsequently, Bizwayo Nkunika requested the Task Force to handover seized houses to his Ministry to be used for Ministers accommodation.183 The request to hand over the properties was made to the Chairman of the Task Force.184 In his response, the Task Force Chairman stated that the matter of seized properties was not in the hands of the Task Force.185 Recently, President Mwanawasa said Government will soon sell the K6 billion worth of property recovered by the Task Force on corruption, while some of the property would be transferred to needy sectors.186 At any rate in the investigation for corrupt practices, the seizure notices issued have often been by the Director General under the ACC Act and its subsidiary legislation or the Commissioner DEC. Apart from legalizing the Task Force, the establishment of a permanent organization with dedicated officers understanding the specific roles they have been employed for and working with a view of achieving their objectives would be more focused. Currently, the Task Force lacks adequately qualified personnel to investigate and prosecute complex financial crimes. There is definite need to create a unit to investigate crimes that cut across the other areas of the specialized agencies of Government. Success of such a unit would largely depend on enlisting officers with specialist training in investigations and prosecutions. The unit should be also accountable to the National Assembly.
______183. The Post, Monday 17th May 2004 “Nkunika asks Task force to handover houses to his ministry”. 184. Id 185. Id 186. Zambia Daily Mail, Monday 23rd August 2004 “6 bn plundered loot up for sale”.
133 CHAPTER SIX: MONEY LAUNDERING 6.0. OVERVIEW OF MONEY LAUNDERING Money laundering refers to the processing of criminal proceeds in order to disguise their illegal origin.1 All recent estimates suggest that it involves billions of dollars annually.2 The Financial Action Task Force on Money Laundering (FATF) estimates the extent of global Money Laundering at two to five percent of word economic output.3 Money laundering has serious consequences if allowed to occur without preventive action being taken.4 The integrity of financial markets depends heavily on both the reality and perception that high legal, professional and ethical standards apply.5 Granted the open and global financial world, characterized by rapid mobility of funds and the introduction of new payment technologies, the fight against money laundering needs to be globally co-ordinated in a comprehensive manner.6 Some of the challenges in combating money laundering, therefore, include the following:
a) to raise awareness among the politicians, legislators and citizens; b) formulate comprehensive laws on anti-money laundering; c) strengthen the capacity of institutions that are regulated or designated for anti-money laundering purposes; d) payment systems must be modernized to reduce the role of cash in transactions by developing alternative instruments; e) there is need to establish a Financial Intelligence Unit to collect information on anti- money laundering, analyse it and pass it on to law enforcement agencies for action; f) there is need to develop a mechanism for monitoring and reporting of suspicious transactions; ______1. G. Goredema, “Profiling Money Laundering in Eastern and Southern Africa”, (Institute For Security Studies 2003) P.2 2. Id. 3. Id. 4. Id. 5. Id. 6. Id.
134 g) training and capacity building in the areas of law enforcement, finance and justice must be encouraged; and h) international co-operation must be enhanced. 6.1 MONEY LAUNDERING LEGISLATION Anti-money laundering statutes contribute significantly to the detection of corruption and related offences by providing the basis for financial investigations. Identifying and recording obligations as well as reporting suspicious transactions is also required by the UN Convention Against Transnational Organized Crime and the United Nations Convention against Corruption,7 and this does not only facilitate detection of the crime of money laundering, but also helps to identify the criminal acts from which the elicit proceeds originated. Identification by financial institutions of the true beneficiaries of a transaction can be difficult.8 Criminals engaged in money laundering typically use false identities. However, financial institutions must refrain from entering into business relations where true identification is questionable and, in particular, when identification is impossible because of the use of company schemes that are mainly designed to guarantee anonymity.9 Furthermore, all relevant information regarding the client and the transaction needs to be registered.10 In order to make that a manageable task, there should, at the very minimum be an obligation to register a transaction where it exceeds a certain value or where the client wants to enter into a permanent business relationship with the institution for example when opening an account.11
6.2. THE PROHIBITION AND PREVENTION OF MONEY LAUNDERING ACT MONEY LAUNDERING
The Prohibition and Prevention of Money Laundering Act (PPMLA)12 was enacted on 8th November 2001. The objects of the Act are outlined as follows:
______7 See Article 14, Subparagraph 8. UNODC, UN Anti-Corruption Toolkit 2nd Edition Vienna February 2004, at P. 487 9. Id. 10. Id. 11. Id. 12. Act Number 14 of 2001
135 a) to establish the money laundering authority and the anti-money laundering investigations unit; b) to provide for the disclosure of information on suspicion of money laundering activities by supervisory authorities and regulated institutions; c) to authorize forfeiture of property of persons convicted of money laundering; d) to provide for international co-operation in investigations, prosecutions and other legal processes of prohibiting and preventing money laundering. The Act13 provides for the creation of an Anti-Money Laundering Authority to be chaired by the Attorney General. Other members of the authority include:
i. the Inspector General of Police; ii. the Commissioner of the Drug Enforcement Commission (DEC); iii. the Director General of the Anti-Corruption Commission (ACC); iv. the Governor of Bank of Zambia (BOZ); v. the Commissioner General of the Zambia Revenue Authority; and vi. two other persons.
The functions of the Authority are to provide general and specific policy directions to the DEC Commissioner and also to advise the Minister on measures required to prevent and to detect money laundering in the country.14
6.2.1. The Anti-Money Laundering Investigations Unit The Act also establishes the Anti-Money Laundering Investigations Unit consisting of the Commissioner of the DEC and such officers as the commissioner may appoint.15 Among the functions of the Unit are to:16 ______13. Section 3 of the Anti -Money Laundering Authority Act Number 14 of 2001 14. Id Section 4 15. Id. Section 5 16. Id. Section 6
136 a) collect, evaluate, process and investigate financial information including that from regulated institutions and supervisory authorities, relating to financial and other business b) transactions suspected to be part of money laundering for the purpose of preventing and suppressing money laundering offences; c) to conduct investigations and prosecutions of money laundering offences; d) to assist in developing training programmes for use by regulated institutions and supervisory authorities in the implementation of the Act; e) to co-operate with law enforcement agencies and institutions in other jurisdictions responsible for investigations and prosecutions of money laundering offences; and f) to supervise the reporting requirements and other administrative obligations imposed on regulated institutions and supervisory authorities under the Act.
Almost two years have passed since the Act was promulgated and progress has been slow.17 The anti-money laundering investigations unit has now been established under the18 Drug Enforcement Commission.19 In addition to inertia in the establishment of the various functional arms of the money laundering authority, appropriate steps have not been taken in educating the general public and creating public awareness about money laundering activities.20 The Unit has also not yet developed come with appropriate training programmes through which the regulated institutions can impart training to its staff members in mechanisms for preventing money laundering, techniques in the recognition and handling of business transactions carried out by, or on behalf of any person who is or appears to be engaged in money laundering.21
6.3. THE ROLE OF SUPERVISORY AUTHORITIES IN ANTI-MONEY LAUNDERING
Part V of the Act contains measures aimed at preventing money laundering by supervisory authorities listed hereunder:22 ______17. Republic of Zambia, Financial Sector Development Plan for Zambia 2004-2009, Ministry of Finance and National Planning May 2004 at P. 42 18. Id. 19. Id. 20. Id. at P.43 21. Id. 22. Section 2 of the Prohibition and Prevention of Money Laundering Act Number 14 of 2001.
137 a) the Bank of Zambia; b) the Registrar of Building Societies; c) the Registrar of Banks and Financial institutions; d) the Registrar of Co-operatives; e) the Registrar of Insurance; f) the Commissioner of the Securities and Exchange Commission; g) the Registrar of Companies; h) the Commissioner of Lands; i) the Investment Board; and j) the Licensing Authority under the Casino Act and any other authority which may be established by law as a supervisory authority. The supervisory authorities listed above are required to report to the Unit any transaction which gives “reasonable grounds to believe that a money laundering offence is being, has been or is about to be committed.”23 The expression “reasonable grounds to believe”, leaves considerable room for interpretation and therefore, the ground staff at the regulated institutions ought to be educated about this requirement. Besides, although the Act requires transactions to be reported, it does not specify any format or threshold, which the reporting is to be made. Moreover, ground staff is under fear that they may attract lawsuits if they disclose information about customers transactions to the Unit in the absence of specific protection offered under the Act.24 The supervisory authorities are expected to issue appropriate directives, subject to approval by the unit, in the prevention of money laundering activities to the regulated institutions.25 The regulated institutions are in turn obliged to:26
______23. Id. at P.43 24. Section 14 of the Act provides that it shall be unlawful for any person to make any disclosure incompliance with the Act. The protection offered by this section is seen as inadequate. 25. Section 12 (4) of the Prohibition and Prevention of Money Laundering Act Number 14 of 2001. 26. Id Section 13 (1)
138 a) report to the Unit the identity of persons involved in any business transactions in particular cash transactions which give any officer of the regulated institution reasonable grounds to believe that a money laundering offence is being, has been or is about to be committed.; b) comply with any directives issued to it by the supervisory authority with respect to money laundering activities; c) permit an authorised officer with a warrant to enter into the premises of the regulated institution during working hours and inspect records suspected of containing information relating to money laundering and to make notes or take copies of the whole or any part of the record and designate an officer in each branch or local office to be responsible for reporting all transactions suspected of being related to money laundering. The preceding provisions presupposes that mechanisms have been developed to collect such information. However, most supervisory authorities have yet to issue such directives and establish a mechanism for gathering such information.27
6.3.1. Bank of Zambia Anti-Money Laundering Directives 2004. The Bank of Zambia is obliged under the PPMLA Act to combat money laundering. The Bank
of Zambia is required under the PPMLA Act to amongst a number of things assist the Anti
Money Laundering investigations Unit of the Drug Enforcement Commission by disclosing
information about business transactions that indicate that a person has or may have
engaged in money laundering 28 The Bank of Zambia is also involved in the fight against
Money Laundering by virtue of the fact that the Bank of Zambia Governor is a member
of the Anti- money laundering authority, a policy making body constituted by the PPMLA
to provide policy guidance to Government on anti - money laundering matters.29
______27. Financial Sector Development Plan for Zambia 2004 – 2009 Ministry of Finance and Natural Planning May 2004 28. Submission by Mr. Chisha Mwanakatwe Director Bank Supervision dated 12th October 2004. 29. Id.
139 Other members of the Authority include Ministry of Justice, the Drug Enforcement
Commission, the Police, the Anti-Corruption commission and the Zambia Revenue
Authority. Furthermore, the Bank of Zambia has been actively involved in implementing at
Country level, the Anti - money laundering programs of the Eastern and Southern Africa
Anti - money Laundering Group (ESAAMLG).30
The Bank of Zambia has recently received technical assistance from the International
Monetary Fund (IMF) and other donors in drafting the Anti – Money Laundering Directives
which were recently issued to banks and non-bank financial institutions.31
The Bank of Zambia (BOZ) has issued Anti-Money Laundering Directives, 2004.32 The
Directives require a regulated institution to put in place such anti-money laundering
Measures and adopt such practices as are necessary for the detection and prevention of
money laundering.33 A regulated institution shall require its individual customers when
opening an account, establishing business relations, or establishing business transactions,
with it to provide the following documents for identification purposes:34 i. in the case of a Zambian national, a national registration card or valid passport or driver’s licence; or ii. in the case of a foreign national, a national registration card or a valid passport with, where applicable a duly issued visa. When a regulated institution has doubts as to the identity of a customer in the course of its business relationship with that customer, the regulated institution shall require that customer to renew that customer’s identification or provide further identification documents.35 ______
30 Id. 31. Id. 32. Made pursuant to Section 12(4) of the Prohibition and Prevention of Money Laundering Act Number 14 of 2001. 33. Directive Number 5 34. Directive Number 6(1) 35. Directive 7 (B)
140 In addition, a regulated institution shall verify the names and addresses of its individual customers by any or more of the following methods:36 a) obtaining a reference from a professional, an employer of the individual customer, a known customer of the regulated institution or a customary authority that knows the applicant all of whom should have known the applicant for not less than one year; b) in the case of non-residents, obtaining a reference from the individual customers foreign banks, where possible; c) conducting a credit reference agency search; d) requesting an original or certified true copy of recent council or applicable rates or utility bill receipt. e) Using one of the address validation or verification services on offer; or f) In addition to one or more of the above, doing all things that the regulated institution may deem necessary to verify the documentation submitted by the applicant. Where a corporate body opens an account with a regulated institution, the regulated institution shall verify the legal existence of the corporate body and identify the directors, the beneficial owners and the management of that corporate body.37 A regulated institution is required to obtain the following information and documentation from a corporate body before it allows the corporate body to open an account with it:38 a) a certified copy of the certificate of incorporation or equivalent, details of the registered office and the place of business; b) details of the nature of the corporate body’s business, the reason for the account being opened, an indication of the expected turnover, the source of funds, and a copy of the last available accounts where applicable; c) where there is more than one signatory to the account, satisfactory evidence of the identity of all the signatories; d) a certified copy of the resolution of the Board authorising the account signatories; and e) a certified copy of the power of attorney, or any other authority affecting the operation of the account given by the directors in relation to the corporate body;
______36. Directive 8 (1) 37. Directive 8 (2) 38. Directive 10 (1) (a)
141 f) such other additional documents as the regulated institution may deem necessary for this purpose. The preceding provisions are based on the principle of customer identification or what is popularly referred to as “know your customer (KYC)”. Therefore, when establishing a relationship with a customer, it is important to institute effective procedures to establish the identity of the customer. In practice, the most likely vehicles of money laundering are corporate customers registered through a trading company. It is therefore, important to identify the directors, account signatories and the nature of the business. The verification and identification of the customer is the primary requisite in addressing the issues of money laundering. A registered institution is required to maintain a business transaction record for a period of ten years after termination of the business transaction39 and copies of identification records for a period of ten years after termination of the business transaction with the customer.40 The records are required to be kept in the form of hard copies or by using electronic storage devices.41These provisions are essential for retention of records of transactions. The objective is to enable the appropriate authorities to retrieve the relevant information whenever need arises. A regulated institution is under obligation to report to the Anti-Money Laundering Unit any suspicious transactions or suspicious activities by its customers.42 Conversely, a regulated institution is required to send the Anti-Money Laundering Investigations Unit copies of the relevant documents and retain the originals.43 A person making a suspicious transaction report is not allowed to disclose to an unauthorized person that such a report is being, has been or is about to be made.44 The Directives require a regulated institution to provide for on its establishment a Money Laundering Reporting Officer.45 A person so appointed shall be a person at management level.46 The Money Laundering Reporting Officer shall be responsible for the following:47 ______39. Directive 10 (1) (b) 40. Directive 10 (2) 41. Directive 10 (1) the Suspicious Activity Reform is set out in the Second Schedule of the Directives 42. Id 43. Directive 11 (2) 44. Directive 12 (1) 45. Id. 46. Directive 12 (2) 47. Directive 13
142 a) keep a register of all reports made by employees of the regulated institution and of all reports that the officer makes to the Anti-Money Laundering Unit; b) on written request by the law enforcement agencies: i. give to them an acknowledgement receipt of the reports from the Anti-Money Laundering Investigations Unit; ii. make available to the law enforcement agencies copies of reports he/she makes to the anti-money laundering investigations unit and those made to the money laundering reporting officer by employees of the regulated institution; iii. after receiving a report, promptly evaluate whether there are reasonable grounds for believing that a customer has been engaging in illegal activities or crime, and if after such evaluation, the money laundering reporting officer finds that such ground exist, the money laundering reporting officer shall immediately report the case to the Anti-Money Laundering Investigations Unit in the prescribed format; and iv. The Directives also place obligations on employees of a regulated institution to promptly report to a money laundering reporting officer all cases where:48 c) the employee becomes aware, has knowledge or suspects or has reasonable grounds to believe that a customer has been or is involved in an illegal activity or crime; or d) a customer in respect of whom the employee becomes aware, has knowledge or suspects or has reasonable grounds to believe, that another customer has been engaging in illegal activities or crime, deposits, transfers or seeks to invest funds or obtain credit against the security of funds obtained from such illegal activities or crime. Regulated institutions are expected to co-operate with the law enforcement agencies to facilitate the exchange of information relating to money laundering49 and with any law which requires the provision of information to the law enforcement agencies to assist in an investigation. 50 ______48. Directive 15 (1) (a) 49. Directive 15 (1) (b) 50. Directive 16 (1) (1)
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In addition, the board and principal officers of a regulated institution are required to put in place an anti-money laundering programme consisting of anti-money laundering measures to be taken and practices to be adopted in order to detect and prevent the commission of money laundering.51 The measures and practices referred to above shall include: a) the development of internal policies, procedures and controls with due regard to the risks posed by money laundering; b) the establishment of “know your customer” procedures which shall include knowing the customer’s business, establishing systems that would recognize suspicious activities and having in place internal reporting procedures of suspicious transactions; c) the appointment of money laundering reporting officers; d) the establishment of a sound anti-money laundering compliance policy which shall be reviewed by the regulated institution annually and approved by the Bank of Zambia; e) procedures to be followed by directors, principal officers; officers and employees of a registered institution in the conduct of the business of the regulated institution; f) instructions given to directors, principal officers, and employees of a regulated institution on the prevention of the use of the regulated institution for the purpose of engaging in activities of money laundering; and g) training of directors, principal officers, officers and employees of a regulated institution for the purpose of enabling them to identify business transactions which may relate to the commission of the offence of money laundering.
______51. Directive 18
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A regulated institution shall, with the assistance of the Anti-Money Laundering Unit, train its employees, irrespective of the level of seniority, on what money laundering is and the importance of reporting any suspicious transactions to its money laundering reporting officer, and shall draw up a programme for the training of its employees.52 The programme referred to above shall include:53 a) indicators that may give rise to suspicion and the procedures to be adopted when a business transaction is considered to be suspicious; b) a component to train the staff of a regulated institution on how to make a report on suspicious activities; c) the identification and prevention of money laundering for employees of the regulated institution who have contact with clients and compliance personnel; d) instructions, covering all aspects of money laundering procedures to those with the responsibility for supervising or managing staff; and e) an in-depth training for the money laundering officer on all legislation on money laundering and the regulated institutions internal policies on money laundering. Clearly, employees of registered institutions require on going education or training in order to facilitate the recognition and reporting of money laundering transactions. This is important because it is difficult to discern a transaction that can be used for money laundering. With adequate staff training it is easier to identify suspicious transactions.
6.4. THE NATIONAL PAYMENT SYSTEM The Zambian economy is essentially a cash economy. Most transactions are performed in cash. In any event, criminals who commit offences that generate cash proceeds, for instance, cash heists or drug trafficking are often able to transfer or spend substantial amounts without using the formal financial system. ______52. Directive 19 (1) 53. Financial Sector Development Plan for Zambia 2004 – 2009 at P. 46
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Therefore, in the absence of any centralized database it becomes difficult to establish the identity of persons suspected in money laundering. Currently, there is no law in Zambia which governs the payment system.54 In an effort to reform and enhance the efficiency of the payments system, the BOZ initiated a study of payments systems within the region and by 1995, was working together with the Bankers Association of Zambia on reforming the Zambian payment systems.55 The objective of the reform has been to formalize an efficient payments, clearing and settlement system for the Zambian financial system within a clear legal framework.56 The following are some of the measures that have been implemented to make the National Payments System more efficient and reliable:57 a) establishment of electronic clearing. BOZ in conjunction with the Bankers Association of Zambia introduced an automated electronic system called Zambia Electronic Clearing House (ZECH), in 1999; b) Zambia Clearing House rules were redrafted: these set clear entry criteria, management of the clearing house, failure to settle arrangements and reduction in clearing periods c) improvement of the security of the cheque paper and introduction of machine readable cheques. This enhanced the security features of cheques and improved the speed of processing and turn-around time for cheques; d) cutting down on the number of days to clear cheques. The number of days for clearing a cross-country cheque was cut down from 21 to 10 days. The inter-provincial, along the line of rail and local clearing days were reduced to 6, 4 and 3 days respectively; e) improvements in Bank’s internal processing procedures: most banks have deployed systems that enable the updating of customers accounts from central points; f) introduction of direct debit and credit clearing (DDACC) for payments of bills and salaries. DDACC was introduced to facilitate transfer of money by electronic means; ______54. Financial Sector Development Plan for Zambia 2004 – 2009 at P. 46 55. Id. 56. Id. 57. Id.
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g) large value clearing system (real time gross settlement system): work on this system has advanced. Real time settlement also provides a speedy and safe alternative for high- value payments; and
h) legal framework: research on the legislation in Zambia revealed that the law did not support a number of best practices. Therefore, the BOZ made recommendations to the Minister of Finance and National Planning on introducing legislation which among other things, will provide a legal framework for electronic and other forms of payment instruments.
6.4.1. Financial Intelligence Unit (FIU) The principal objective of the Financial Intelligence Unit (FIU) is to assist in the identification of proceeds of unlawful activities and the combating of money laundering activities. Typically, a financial intelligence unit makes available information collected to investigation or enforcement authorities. Further, fills exchange information with similar financial intelligence units in other countries. FIU’s do not investigate criminal activity, but rather co-operate with investigating authorities. FIU’s are therefore, intelligence gathering and dissemination institutions. The functions of FIU typically include the following.
a) to collect receive, process, analyse and interpret information disclosed to it; b) to inform, advise and co-operate with investigating authorities and the intelligence; and c) to give guidance to institutions engaged in combating money laundering.
There is therefore, need to consider establishment of a Financial Intelligence Unit as a Juristic person with capacity to sue and to be sued. It should be headed by a Director and have its own staff, bank accounts budget etc.
147 6.5. ASSESSMENT OF THE MONEY LAUNDERING MEASURES IN ZAMBIA Firstly, although the Prohibition and Prevention of Money Laundering Act was enacted in 2001, implementation of the Act only started in mid-2002. When the Minister of Home Affairs appointed members of the Money Laundering Authority,58 the Finnish Government in November 2002, released USD150,000 to the authority to facilitate its operations.59 Secondly, progress has been slow in the implementation of the Act. Thirdly, there is limited public awareness about the menace of money laundering. Fourthly, it is also recognized that there is no proper co-operation among the supervisory authorities. Information and data on persons involved or suspected to be involved in money laundering activities should be shared by the players in the market. Fifthly, the Bank of Zambia does not licence and supervise all institutions offering financial services. For example money transmitters such as Western Union and Money Gram are not licensed and supervised by Bank of Zambia. Sixthly, there is inadequate institutional financial and human resource capacity to combat Money Laundering. Lastly, in the absence of a centralized database of persons involved or suspected to be involved in the money laundering activity, the players in the market are vulnerable to the risk of opening accounts of such persons.
6.5.1.Measures that require to be taken to implement the Prohibition and Prevention of Money Laundering Act Firstly, all supervisory authorities should set up a separate internal unit specifically to deal with or address issues relating to the prevention of money laundering activities and for effective implementation of the various provisions of the Act and the BOZ Anti-Money Laundering Directives of 2004. Secondly, there should be improved or proper co-ordination among the supervisory authorities. Thirdly, there is need to develop data base on persons involved or suspected to be involved in money laundering activities. Fourthly, there is need to impart legal and financial skills to understand the nature of Money Laundering. Lastly, there is need to establish a financial intelligence unit which should operate closely with the central Bank and the commercial banks. ______58. The Post June 19 2002, Government set up Police complaints and Money Laundering Activities 59. AW. Chanda, National Integrity Systems Country Study Report Zambia 2002 (Published by transparency International Zambia 2002).
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CHAPTER SEVEN: FREEDOM OF INFORMATION 7.0. OVERVIEW OF THE CONCEPT OF FREEDOM OF INFORMATION It is one of the fundamental tenets of any democratic society that a democratic Government must be open to public scrutiny.1 If the citizens have the right to scrutinize and to criticize the operation of the state and Government, then they should be given access to sufficient information and other material in order to make their assessment. The dissemination of information about public affairs and the management of public issues is one of the most frequently cited anti-corruption measures.2 Populations which are made and kept aware of governance issues which affect them, develop expectations about standards and are in a position to put pressure on officials to meet those standards.3 The participation of society in public affairs is a major objective of the United Nations Convention against Corruption4 and ensuring that the public has effective access to information is specifically set out as one of the means whereby this objective can be attained.5 Effective access can also be seen as a means of empowerment both in the substantive sense that having information about issues and options carries with it the ability to exert influence and affect outcomes, and also in the procedural sense that access to information structures are generally user initiated.6 People obtain information because they have asked for it, and having obtained it previously, will ask for it again in future, often with a growing skill and sense of confidence as their knowledge of public affairs increases.7 As with all transparency mechanisms, the underlying objective is to educate the public and shed light on public affairs with a view to ensuring a high degree of public accountability.8
______1. E. Shorts and CD Than “ Human Rights Law in the UK’ 1st edition (London Sweet and Maxwell 2001) at P. 333. 2. UN Anti- Corruption Tool kit 2nd edition, Vienna, February, 2004, at P. 331 3. Id 4. The general obligation of chapter 11, article 5, paragraph 1, calls for anti-corruption policies which promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability. 5. See convention article 13 Subparagraph (b) 6. Un Anti-Corruption Toolkit, supra note 2, at P. 332 7. Id. 8. Id.
149 More than 51 countries now have guaranteed their citizens the right to know what their Government is up to and more than half of this freedom of information laws were passed in the last decade.9 The new openness laws vary tremendously, face huge implementation problems and often receive only lip service from bureaucrats.10 But the trend is producing much more government accountability and often dramatic headlines. For example:11 a) Requests under Japan’s 2001 access law, revealed that the Government tried to limit the geographic definition of areas affected by “Minamata disease” (Mercury poisoning) in order to reduce compensation payments; b) Requests under Mexico’s 2002 law are pressuring the Government’s Human Rights Commission to address more than 3,400 complaints lodged by citizens of which only a fraction were resolved mostly in secret; c) A request under the 2001 Delhi state-level Rights to Information Act for documents on a promised sewer (supposedly under construction since 1983) in the Sunder Nagari neighbourhood embarrassed the Government into finally completing the project; d) British Journalists waiting for the 2005 implementation of the U.K’s new access law, used Sweden’s (the oldest in the world, dating from 1766) to obtain letters from Prime Minister Tony Blair to the Swedish Prime Minister, after Blair’s Government refused to release the documents, citing possible damage to foreign relations; e) South African opposition parties used the South Africa access law to open internal Government documents on a controversial oil contract with Nigeria, all of the benefits which went to an off shore company, rather than to the South African people. Meanwhile, the Nigerian Parliament is on the verge of passing its own Access Law; f) Irish reporters used their 1997 freedom of information to show collusion among four private licence-holding companies and the Government that has stymied the developments of wireless and broadband internet access in Ireland;
______
9. D. Banister “ The Freedom of Information Global Survey: Freedom of Information and Access to Government Records around the world,” May 12, 2004 10. T. Balnton, The Right to Know is Gaining Around the World, (the International Herald tribune October 11, 2003) P.6 11. Id.
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g) Israel’s freedom of information law compelled the Yad Vashem memorial council to open its files showing how it chooses which “ righteous gentiles” to honour on its “ avenue of the righteous” (non-Jews who helped Jews during the Holocaust.); and h) The Bulgarian NGO, access to Information programme used Bulgaria’s FOI law to reveal that the Government’s Minister of Science and Education had illegally (and under the table) rented out his agency’s lobby to a private company.
Thus, civil society and Governmental reformers around the globe are making extraordinary progress in enacting freedom of information legislation.
7.1. PRINCIPLES OF FREEDOM OF INFORMATION LEGISLATION Article 1912 has produced a set of international principles to set a standard against which anyone can measure whether domestic laws genuinely permit access to official information.13 The principles set out clearly and precisely the ways in which Governments can achieve maximum openness in line with the best international standards and practice.
7.1.1. Maximum Disclosure
The principle of maximum disclosure establishes a presumption that all information held by public authorities or bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances.14 Therefore, the overriding goal of freedom of information legislation should be to implement or permit maximum disclosure. Where a public authority is seeking to deny access to information, it should bear the onus of justifying the refusal. In other words, the public authority must demonstrate that the information which it wishes to withhold is covered within the scope of the limited regime of exceptions.
______12. Article 19 is an International Non-Governmental Organization that advocates for freedom of expression 13. T. Mendel, “The Publics Right to know – Principles of Freedom of Information Legislation,” (Article 19 International standards series June, 1999) at P. 2 14. Id.
151 7.1.2. Limited Scope of Exceptions The efficacy of the public right of access to information may be undermined if there are extensive exceptions from the general principle of openness. Thus, all individual requests for information from public authorities should be met, unless the public body can show that the information falls within the scope of the limited regime of exceptions. A refusal to disclose information is not justified unless the public authority can show that the information meets a strict three part test:15
a) the information must relate to a legitimate aim listed in the law; b) disclosure must threaten to cause substantial harm to that aim; and c) the harm to the aim must be greater than public interest in having the information.
The test for exemption of materials under freedom of information legislation should be based on an assessment of the harm that disclosure might cause to the public interest.
7.1.3. Disclosure takes Precedence The law on freedom of information should require that other legislation be interpreted as far as possible in a manner consistent with its provisions.16 Where this is not possible, other legislation dealing with the publicly held information should be subject to the principles underlying the freedom of information legislation.17 In particular, secrecy laws should not make it illegal for officials to divulge information which they are required to disclose under the freedom of information law.18 In the long term, a commitment should be made to bringing laws relating to information in line with the principles underpinning freedom of information legislation. In addition, officials should be protected from sanctions where they have reasonably and in good faith disclosed information pursuant to a freedom of information request even if it subsequently transpires that the information is not subject to disclosure.19
______15. Id. 16. Id. at P. 10 17. Id. 18. Id. 19. Id. at 7
152
Otherwise, the culture of secrecy which envelopes many governing bodies will be maintained as officials may be excessively cautious about requests for information to avoid any personal risk.20
7.1.4. Open Meetings Freedom of information includes the public’s right to know what the Government is doing on its behalf and to participate in decision making processes.21 Freedom of information legislation should therefore establish a presumption that all meetings of governing bodies are open to the public.22 Notice of meetings is necessary if the public is to have real opportunity to participate. Meetings may be closed, but only in accordance with established procedure and where adequate reasons for closure exist.23 Any decision to close a meeting should itself be open to the public.24
7.1.5. Obligation to Publish Information Freedom of information implies not only that public bodies accede to requests for information, but also that they publish and disseminate widely documents of significant public interest, subject only to reasonable limits based on resources and capacity. The law should therefore, establish both a general obligation to publish and the categories of the information that must be published. Public bodies should as a minimum, be under an obligation to publish the following categories of information.25
a) operational information about how the public body functions, including costs, objects, audited accounts, standards, achievements and so on, particularly where the public body provides direct services to the public; ______20. Id. 21. Id. 22. Id. 23. Id. at P. 4 24. Id. 25. Id.
153
b) information on any requests complaints or other direct action, which members of the public may make in relation to the public body; c) guidance on processes by which members of the public may provide input into major policy or legislative proposals; d) The types of information which the body and the form in which this information is held; and e) The content of any decision or policy affecting the public along with reasons for the decision and background material of information informing decisions.
The success of a scheme relating to the publication of information is crucial in order for freedom of information legislation to achieve its objectives.
7.1.6. Processes to facilitate Access to Information Requests for information should be processed rapidly and fairly. A process for deciding upon requests for information should be specified at three different levels as follows:26
i. Within the public body; ii. Appeals to an independent administrative body; and iii. Appeals to the court.
Where necessary, provision should be made to ensure full access to information for certain groups, for example, those who cannot read or write, those who do not speak the language of the record and those who suffer from disabilities such as blindness.27 It is also essential that the law should provide for strict time limit for the processing of requests. In addition, the law should require that any refusal must be accompanied by substantive reasons.
______
26. Id. at P. 8 27. Id.
154
7.1.7. Independent Scrutiny and Enforcement Mechanisms An effective and independent system of enforcement of the public’s right to access information is essential if a freedom of information system is to operate effectively. An independent administrative body should be given a key role to investigate complaints that a public body has failed to comply with the requirement of the freedom of information legislation either by refusing to disclose information or by imposing excessive charges for information. Reporting to an independent administrative body avoids overburdening the courts with complaints or legal actions, relating to public access to information.
7.1.8. Commercial Information Freedom of information legislation should protect individuals and companies against disclosure that may result in material financial loss, prejudice the outcome of contract negotiations or place them at a competitive disadvantage. Through the use of reverse information procedure, individuals and companies are given an opportunity to be notified and to make representations prior to a public disclosure of information by a public entity.
7.1.9. Protection for Whistle blowers Individuals should be protected from any legal, administrative or employment related sanctions for revealing information of wrongdoing.28 Whistleblowers should benefit from protection as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing.29 Such protection should apply even where disclosure would otherwise be in breach of a legal employment requirement.30201
7.1.10 Destruction of Records In order to protect the integrity and availability of records, freedom of information legislation should provide that obstruction of access to or the willful destruction of records is a criminal offence.30 The law should also establish minimum standards regarding the maintenance and
28 Id. 29. Id. 30. Id. at P.3
155 preservation of records by public bodies.31 Such bodies should be required to allocate sufficient resources and attention to ensure that public record keeping is adequate.
7.1.11. Costs The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants given that the rationale behind freedom of information legislation is to promote openness. It is well established that the long-term benefits of openness, far exceed the costs.32 Different systems have been employed around the world to ensure that costs do not act as a deterrent to requests for information. In some jurisdictions, a two-tier system has been used involving flat fees for each request, along with graduated fees depending on the actual cost of retrieving and providing the information.33 In some jurisdictions, higher fees are levied on commercial requests, as a means of subsidizing public interest cost.
7.1.12. Appeals Whenever practical, provision should be made for an internal appeal to a designated higher authority who can review the original decisions,34 In all cases, the law should provide for an individual right of appeal to an independent administrative body from a refusal by a public body to disclose information.35 Appointments to the appeals body should be made by representative bodies such as an all party parliamentary committee and the process should be open to allow for public participation. Individuals appointed to form such a body should be required to meet strict standards of professionalism, independence and competence.
______31. Id. 32. Id. 33. Id. at P.9 34. Id. 35. Id.
156 7.2. EFFORTS TO ENACT FREEDOM OF INFORMATION One of the tasks charged in 1993 to the Media Law Reform Committee (MLRC), earlier on referred to, was to organize the preparation of a draft freedom of information Bill and to prepare a time frame within which consequential and other related legislation should be prepared and implemented. Despite the recommendation that a freedom of information laws should be enacted, no action was taken by the Government. By 31st March 2000, the Government was still considering the possibility of enacting a freedom of information law that would give the public and journalists access to public information which does not compromise national security.36 Under such law, the Government was to set conditions under which such information could be obtained.37 Subsequently, in February 2001, the Government published for stakeholder input, a draft Freedom of information Bill. The Zambian Independent Media Association (ZIMA), now the Media Institute of Southern Africa, (MISA-Zambia), responded to the publication by suggesting amendments and additions to the draft. Despite ZIMA submitting its recommendations in response to the Government draft, there was no reaction from the Government. Effectively, the initiative was shelved by the Government. The media fraternity resuscitated the campaign and commissioned as earlier on noted, a private law firm to draft the Freedom of Information Law. The Freedom of Information Bill commissioned by the media fraternity was published in the Government gazette on 18th October 2002. At the same time the Government gazetted and published in the media its own Freedom of Information Bill which borrowed heavily from the formulation by the media fraternity. However, efforts by opposition members of parliament to present the three private members bill were thwarted by a constitutional provision38 which requires bills with financial implications to be consented to by the President or the Minister of Finance before they can be presented to the National Assembly.
______36. Republic of Zambia Governance – “National Capacity Building Programme for Good Governance in Zambia.” Printed by the Government of the Republic of Zambia, 31st March 2000). P.13 37. Id. 38. Article 81 of the Constitution of Zambia
157
Consequently, on 22nd November 2002, the then Minister of Information and Broadcasting Services, Newstead Zimba, presented the Government version of the Freedom of Information Bill39 for first reading. The presentation signaled the start of consideration of the Freedom of Information Bill by the National Assembly. Subsequently, on 28th November 2002, the Minister presented for second reading the Freedom of Information Bill. The Minister pointed out in his address to the National Assembly that the Bill seeks to accomplish the following:40
(a) establish the Public Information Commission and to define its functions; (b) provide for the right of access to information; (c) set out the scope of public information under the control of public authorities to be made available to the public, in order to facilitate more effective participation in the good governance of Zambia; and (d) promote transparency and accountability of public officers and provide for matters connected with the foregoing.
The Minister in introducing the Bill for the second reading, pointed out that the right of access to information, facilitates more effective participation in the good governance of any country as it promotes transparency and accountability of public officers. The Minister went on to state that freedom of information is derived from the old concept of the right to know enacted by Seventeenth Century British libertarian and fiery advocate of free press, John Milton (1608 to 1674). The Minister indicated that among the strong statements in support of the fight to know, is that the backbone of the representative Government is the direct participation in the affairs of Government by the people.41 To this extent, the Minister informed the House that the constitution, the supreme law of the land approves:42 ______
39. Number 22 of 2002 40. Daily Parliamentary Debates of Thursday, 28th November 2002 at xi 41. Id at x2 42. Id.
158 (a) The recognition of equal worth of men and women in their rights to participate and freely determine and hold a political economic and social system of their own free choice; (b) That all power resides in the people who shall exercise their sovereignty through the democratic institutions of the state in accordance with the constitution; and (c) That except with his own consent a person shall not be hindered in the enjoyment of his freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to support and communicate ideas and information without interference. Further, the Minister argued that freedom of information, therefore, contributed to economic, social development by enabling people to participate effectively in the process of Government and to make informed choices in matters affecting their welfare, while at the same time enabling officials to benefit from public inputs, which facilitate their decision making or improve the quality of public officials in matters of public interest. The Minister advised the house that Government views information as a national resource which could be made public to benefit public debates and understanding. Notwithstanding, the Minister cautioned the house that terrorists and other insurgents, have come to threaten the security of the world. As a result, it was absolutely necessary, the Minister argued, to exempt security institutions which deal with information of a sensitive and delicate nature, lest the security of the country is compromised.
On 18th December 2002, the Government in a surprise turn of events deferred the Freedom of Information Bill which together with the Zambia National Broadcasting Corporation (Amendment) and the Independent Broadcasting Authority Bill) had passed through committee stage.43 Government explained that it withdrew the Freedom of Information Bill from the National Assembly because of global security concerns after the September 11 2002, terrorist attack in the United States of America.44 ______43. Id at x3 44. Zambia Alert Update, December 20, 2002
159 Further, the then Vice-President, Enoch Kavindele, revealed in an interview that Government was forced to withdraw the Bill because sufficient research had not been done before taking the proposed law to the National Assembly.45 Kavindele promised that the freedom of Information Bill would be re-introduced after completion of the research.46 Local Media Associations, expressed disappointment over the Government’s decision to defer the Freedom of Information Bill. The deferring of the Bill at committee stage, when it was about to be enacted into law, it was argued by the media associations, was retrogressive. Recently the Director General of the Anti-corruption Commission challenged Media bodies that are spearheading media law reforms to ensure that the Freedom of information Bill is taken to parliament and enacted into law.47 Banda made the challenge when he officiated at an “Investigative reporting in the Fight Against Corruption “ Workshop in Lusaka. Banda argued that it would be difficult to win the war against corruption if press freedom and freedom of expression were not guaranteed. Banda noted that there was a direct connection between freedom of the press and the fight against corruption. Banda informed the workshop that the Anti-corruption commission was concerned that the Bill which was withdrawn by Government from parliament had remained in limbo.48 At the time of writing, it is not clear when the bill will be re-submitted to the National Assembly. The withdrawal of the freedom of Information bill from the National Assembly on insubstantial reasons, raises serious questions about Government’s commitment and political will to enact freedom of information law. It is therefore recommended that the executive branch should be urged to re-submit the freedom of Information bill to the National Assembly for enactment.
______45. Times of Zambia, Tuesday 2 January, 2003 46. Id. 47. Times of Zambia of 14th September 2004, “ACC prods Media Bodies”. 48. Id.
160 CHAPTER EIGHT: WHISTLE BLOWER LEGISLATION 8.0. INTRODUCTION TO WHISTLEBLOWER LEGISLATION Whistle-blowing is now used to describe the options used by an employee to raise concerns about work place wrongdoing.1 It refers to the disclosure of wrong-doing that threatens others, rather than a personal grievance.2 Whistle-blowing covers the spectrum from raising the concern with Managers, with those in charge of the organization, with regulators or with the public.3 Whistle-blowing is a positive activity and people do not have to be victimized to be whistleblowers.4 Many people all over the world raise concerns about dangers and wrongdoings in the workplace and the issues are dealt with properly and their lives and careers progress unaffected.5 They too are whistleblowers, though they remain no doubt, to their personal satisfaction largely unknown.6 The purpose of whistleblower protection is to encourage people to report crime, civil offences (including negligence, breach of contract, breach of administrative law), miscarriages of justice and health and environmental threats by safeguarding them against victimization and other form of reprisal.7
At any rate, corruption flourishes in a culture of inertia, secrecy and silence. People are often aware of misconduct but are frightened to report it.8 Public inquiries into major disasters and scandals have shown that such a workplace culture has cost lives, damaged livelihoods, caused thousands of jobs to be lost and undermined public confidence in major institutions.9 In order to promote a culture of transparency and accountability, a clear and simple framework should be established that encourages legitimate reporting of corruption and other malfeasance and protects such “whistleblowers” from victimization or retaliation.
______1. R. Cullund and G. Dehn, “Whistle Blowing Around the World, Law, Culture and Practice,” (Published by the Open Democracy Advice Centre (ODAC) Public Concern, at Work (PcaW), London, UK in partnership with the British Council 2004) P.9 2. Id. 3. Id. 4. Id 5. Id. 6. Id. 7. UN Anti-Corruption Toolkit 2nd edition, Vienna, February 2004 vl.2 P. 502 8. Id. 9. Id.
161 The particular importance of such protections in anti-corruption efforts, is illustrated by the fact that in drafting the United Nations Convention against Corruption, member-states not only provided the same basic protections for victims and witnesses used in the earlier Convention against Transnational Organized Crime, but also added a further article dealing specifically with the protection of persons who report corruption in good faith and on reasonable grounds.10 The main purpose of whistleblower laws is to provide protection for insiders who report cases of maladministration, corruption and other illicit or improper behaviour.11 Whistleblower laws provide incentives to report, or at a minimum, prevents potential whistleblowers from being deterred by the possibility of retaliation or other unpleasant consequences. It also ensures fair and just treatment for those who risk their own position for the good of the organisation.12 Most potential whistleblowers will be affected not by the mere existence of a law, but by some plausible assurance that they will actually be protected from consequences that may range from minor harassment to murder.13 Whistleblower laws also require the striking of a balance.14 While reporting genuine malfeasance is important, false or malicious reports also occur by those seeking to conceal their own wrongdoing, settle scores or for other purposes.15 This can waste valuable investigative resources and damage the credibility of anti-corruption programmes, and it is therefore important that whistleblower laws provide for some test of legitimacy and that they are administered so as to distinguish between genuine and false reporting.16
______10. On the protection of victims and witnesses, see United Nations Convention against Transnational Organized Crime (2000) articles 24 and 25 and in the United Nations Convention against Corruption (2003) Article 32. On the protection of those who report corruption, see article 33 of the United Nations Convention against corruption which provides that: Each state party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any fats concerning offences established in accordance with this convention. 11. UN Anti-Corruption Tool kit, supra note 1, at 502 12. Id. at P. 503 13. Id. 14. Id. 15. Id. 16. Id.
162 8.1. THE ANTI-CORRUPTION COMMISSION ACT The Anti-Corruption Act17 does not have provisions deliberately targeted at the protection of whistleblowers. This is a major weakness of the Act. However, in practice the Commission tries to keep the identity of its informers secret as much as possible in order to protect them from victimization.18 But if a case goes to trial, the identities of the informers can no longer be kept secret as such, because informers may be required to give evidence in open court.19 The absence of legal protection for whistleblowers discourages people who may have useful information from volunteering such information to the Commission. 20
8.2. PRINCIPLES OF WHISTLEBLOWER LEGISLATION
8.2.1. Immediate Protection The first aim of any whistleblower law is to prevent the person making the disclosure from being victimized, dismissed or treated unfairly in any other way, for having revealed the information.21 The best way to do this is to keep the identity of the whistleblower and the content of the disclosure confidential for as long as possible. 22 Where this is not possible or cannot be assured, an immediate assessment of the extent of the threat to the person should be made, and if it is serious, removal to a safe location and subsequent concealment may be needed.23 Under the United Nations Convention against Corruption, in the case of someone who only reports corruption, unspecified appropriate measures to provide protection are required. Where the individual becomes a witness in proceedings, this may extend to physical protection, remote testimony, relocation and even relocation to another country. 24
______17. Act Number 42 of 1996 18. A.W. Chanda, “National Integrity Systems Country Study Report, Zambia 2002,” (Published by Transparency International Zambia 2002) P. 41 19. Id. 20. Id. 21. UN Anti-Corruption Toolkit, supra note 7, at P. 503 22. Id. 23. Id. 24. Article 32 Subparagraph 12 (a) (Physical Protection and Relocation), 2(b) Special rules for testimony and paragraph 3 (relocation to another state). Under paragraph 3 foreign relocations would be based on specific agreements or arrangements between countries and need not necessary be to another state party to the convention itself.
163 8.2.2. Deterrence The laws should establish an offence for employers or others who retaliate against or take any adverse action against whistleblowers for disclosures made in accordance with the law.25
8.2.3. Compensation The law should oblige the recipient of the disclosure to treat its content and the identity of the whistleblower confidentially.26 It should also contain rules providing for compensation or reinstatement in case whistleblowers suffer victimization or retaliation for disclosing the information.27 In the case of dismissal, it may not always be acceptable for whistleblowers to be reinstated into their position.28 The law should therefore provide for a job in another branch or organization of the same institution or to pay financial compensation.29
8.2.4. Co-ordination with the Legal Frame-work The part of the whistleblower law that seeks to protect whistleblowers from unfair dismissal must be coordinated with labour laws.30 The degree of protection may depend to some degree on the extent to which workers are protected in general.31 Employees need to be protected against dismissal, but where whistle-blowing places the employee in a stronger position than otherwise, precaution against false reports may be needed as well.32
8.2.5 Who to Report To Generally, the law should provide for at least two levels of institutions to which whistleblowers can report their suspicions or offer evidence.33 ______25. UN Anti-Corruption Toolkit, supra note 7, P. 503 26. Id. 27. Id. 28. Id. 29. Id. 30. Id. 31. Id. 32. Id. 33. Id.
164
The first level should include entities within the organization or internal or external oversight bodies created specifically to deal with maladministration.34 If the whistleblower is a public servant, he or she should be enabled to report to bodies such as an ombudsman, an Anti- Corruption agency or an Auditor General.35 Whistleblowers should be allowed to turn to a second level of institutions if their disclosures to one of the first level institutions have not produced appropriate results and in particular if the person or institution to which the information was disclosed:36 (a) decided not to investigate; (b) did not complete the investigation within a reasonable time; (c) took no action regardless of the positive results of the investigation, or (d) did not report back to the whistleblower within a certain time.
Whistleblowers should also be given the possibility to directly address the second level institutions if they:37
(a) have reason to believe that they would be victimized if they raise the matter internally or with a prescribed external body; and (b) reasonably fear a cover-up, second level institutions could be designated members of the legislature, the Government or the media.38
8.2.6 A Law to Protect Against False Allegations Since whistle-blowing can be a double edged sword, it is necessary to protect rights and reputations of persons against frivolous, vexatious and malicious allegations.39 Whistleblower legislation should therefore include clear rules to restore damage caused by false allegations.40 In particular, the law should contain minimum measures to restore a damaged reputation.41 ______
34. Id. 35. Id. 36. Id 37. Id at 505 38. Id 39. Id 40. Id 41. Id
165 Criminal codes normally contain provisions penalizing those who knowingly come forward with false allegations.42 It should be made clear to whistleblowers that those rules apply also to them if their allegations are not made in good faith.43 Therefore, there should generally be a presumption that a report was made in good faith, but where it is proved that a report was false and not in good faith, appropriate sanctions should be applied.
8.2.7 Dealing with Whistleblowers and Managing their Expectations In order to ensure effective implementation, those people or institutions that receive the disclosures must be trained in dealing with whistleblowers.44 Whistleblowers often invest much of their time and energy on the allegations they make.45 They suffer from a high level of stress.46 If their expectations are not managed properly, it might prove fatal for the investigating body.47 Whistleblowers should also be informed that the further the investigation proceeds, the more likely it will become for their identity to be revealed and for them to be subjected to various forms of reprisal.48 8.2.8. Make the Whistleblower “Last the Distance” During the investigation, whistleblowers must be kept updated about progress made.49 Concern about the effectiveness of protection must be acknowledged.50 The law will never be able to provide full protection and the whistleblowers must be made aware of that.51 It is therefore essential for the investigating body to make every effort to ensure that whistleblowers last the distance by informing them about all of the steps taken and the implications for the continued anonymity of the whistleblower, reactions they may encounter, as well as other factors that may impact the willingness of whistleblowers to continue providing information to authorities.52 In addition, they should be given legal advice and counseling.53 ______42. Id 43. Id 44. Id 45. Id 46. Id 47. Id 48. Id 49. Id 50. Id 51. Id 52. Id 53. Id
166 8.2.9. Avoid Leakage of Information The most effective way of protecting whistleblowers is to maintain confidentiality regarding their identity and the content of their disclosures.54 Some country experiences, however, show that the recipients of disclosures do not pay sufficient attention to that important factor. Quite often information is leaked, rumours spread and whistleblowers suffer reprisals.55 It is not enough to sanction the leakage of information.56 Instead, it may be more effective to train the recipients of disclosures on how to conduct investigations while protecting the identity of the whistleblower for as long as possible.57
8.3. THE UNITED KINGDOM EXPERIENCE The British approach to whistle-blowing -- focusing on organizational and individual response has proved far more successful than any of its original campaigners could have predicted a decade ago.58 In their short time, the term “whistleblower” has evolved from a pejorative epithet meaning “snitch” or “traitor” to one conjuring the image of a responsible (and brave) employee.59 The first attempt to provide a legislative framework for public interest whistle blowing was initiated in 1995.60 The following year, a private members bill was introduced though unsuccessful. In 1997 another private members bill was introduced and it was this that led on to the statute book61 the Public Interest Disclosure Act (PIDA). PID is part of UK employment law.62 It is designed to address a key barrier to raising concerns in the workplace, the fear of compromising one’s employment and career.63 Most employment rights balance the interests of employers with the interests of the individual worker.64
______54. Id 55. Id 56. Id 57. Id 58. R. Calland and G. Dehn, supra note 1, at P.101 59. Id. 60. The first attempt to provide a legislative framework for public interest whilstleblowing was initiated by Dr. Tony Wright MP in a ten minutes rule Bill in 1995. 61. In 1997 Richard Shepherd MP introduced another private members bill. 62. Section 103 A, Employment Rights Act 1996 63. R. Calland and G. Dehn, supra note 1, at P. 106 64. Id.
167
PIDA is different in that it balances the interests of employers to maintain the control and direction of their business, with the wider public interest to stop wrongdoing and protect society at large – be it customers, vulnerable individuals, taxpayers or workers.65 PIDA builds on the common law principle that there “is no confidence as to the disclosure of iniquity.” 66 The courts have consistently held that there is no obligation on an employee to keep information secret, if it relates to such misconduct on the part of the employer or fellow employees that there is a public interest in this disclosure.67 The law recognizes the public interest in maintaining confidence, but it also recognizes a countervailing and at times overriding public interest in disclosure.68 PIDA shifts the debate from one that primarily focuses on the motivation of the whistleblower, to one that focuses on the nature of the information and the appropriate recipient for it.69 Guiding the flow of information through the responsible and accountable structures already70 in place, PIDA does not require anyone to blow the whistle nor does it set out what must happen with the information once the whistle, is blown.
8.3.1. Extent of Application All employees and workers in the United Kingdom are covered by the legislation, whether they are employed in the public, private or voluntary sectors. A recent amendment to PIDA extends its protection to police officers.71
8.3.2. Internal and Regulatory Disclosures PIDA’S framework for public interest whistle-blowing is through a tiered disclosure regime.72 ______65. Id. 66. Gurtside V Outram 1856 26 LJ Ch 113, 114 116 Per Wood vc. 67. 67 R. Calland and G. Dehn, supra note 1, P. 106 68. Id. 69. Id. 70. Id. 71. Section 37 is the Police Reform Act . 72. Colland and Dehn (eds) supra note 1, P. 107
168 This means the Act promotes internal communication of information and establishes safe alternatives outside the work place.73 The shifting public perception of whistle-blowing from an act of treachery, to one of loyalty is promoted by the way the term “disclosure” is used in PIDA.74 Most would not consider an internal communication of information as a disclosure in the traditional sense.75 The Act also reinforces ministerial accountability by treating a disclosure to the sponsoring department from staff working in non-departmental Government bodies such as nurses in a National Health Service (NHS) hospital the same as an internal disclosure. The requirement on the individual whistleblower in these instances is essentially, an honest and reasonable suspicion of malpractice.76
8.3.3. Wider Disclosure Outside the framework of internal and regulatory disclosures, it is up to the worker to decide where to raise a concern.77 It is here that the protection is less easily available.78 In effect, this is where the tribunal has to examine and determine the appropriate balance between the public interest and the interest of the employer.79
8.3.4. Legal Advice PIDA protects disclosure made in the course of seeking legal advice.80 As there is good faith or “honesty” requirement, this provision allows an individual who is intending to disclose information solely for some interior motive or leverage to safely obtain advice that conduct jeopardizes the protection of PIDA.81 Reaffirming the principle of legal professional privilege, a lawyer who learns of a concern during the course of giving legal advice that legal advice cannot on his or her own volition make a protected disclosure.82
______73. Id. 74. Id. 75. Id. 76. Id at P. 108 77. Id. 78. Id. 79. Id. 80. Id. at P. 109 81. Id. at P. 110 82. Id.
169 8.3.5. Remedies As tribunals are likely to order reinstatement in cases where the dispute and dismissal has undermined the employment relationship, compensation for financial losses is the usual remedy for unfair dismissal.83 Thus, in the United Kingdom there is generally no reward for whistle-blowing.
8.3.6. Assessment of PIDA There are three aspects of PIDA that warrant noting. Firstly, and foremost is that PIDA renders void the duty of confidentiality that an employee is deemed to owe an employer. Thus. an employer against whom a protected disclosure is made may not use the traditional weapon against the employee of suing for breach of contract. Secondly, PIDA protects the disclosure of extra-territorial issues, this is particularly significant given the global nature of many employment activities. Lastly, PIDA establishes an employees right not to be subjected to detriment for making a protected disclosure. This is the sine quo non of such legislation. In conclusion, PIDA is looked to internationally as a bench mark of public interest whistle-blowing. Whistleblower protection mechanisms are non - existent in Zambia. The nearest provision to whistleblower protection under Zambian law relate to tender of Pardon Certificate of Indemnity, the prohibition of deception by witnesses, and interference with witnesses. The best practice in relation to legal protection and limits of whistleblowers is to enact a stand alone whistleblower legislation. ______
83. Id.
170 9.0. CONCLUSIONS AND RECOMMENDATIONS
9.1 INSTITUTIONAL FRAMEWORK FOR COMBATING CORRUPTION
A. CONCLUSIONS
(i) To combat corruption successfully, a comprehensive nexus of laws and policies is an unavoidable pre-condition;
(ii) Institutional capacity to combat corruption must be developed;
(iii) Efforts to combat corruption must cut across both Public and Private Sectors;
(iv) Court proceedings are incredibly slow and laborious;`
(v) Civil Society plays a significant role in building civic knowledge, altitudes and behaviours, necessary to promote change and act as a counter balancing force in country such as Zambia with weak opposition Political Parties; and
(vi) Donor assistance has played a major role in supporting initiatives to combat corruption.
B. RECOMMENDATIONS
i. In order to combat corruption successfully, there is need to develop a multi faceted and multi – agency approach;
ii. In order to enhance the separation of powers and avoid the commission of excesses by the executive branch of Government, there is need to develop more effective checks and balances on the executive branch;
iii. In order to combat corruption effectively, there is need to ensure that the Judiciary functions in an efficient, independent, consistent and expeditious manner;
iv. Both the Public and Private media need to be strengthened and encouraged to practice investigative journalism more extensively.
v. The Private Sector should be encouraged to develop codes of conduct and ethics, as part of the strategy to combat corruption in or by the Private Sector;
171 vi. Donor assistance should continue to be employed to reduce opportunities for corruption through supporting the development of a stronger and more independent Judiciary, Legislature and oversight bodies.
9.2 THE ROLE OF PUBLIC SERVICE IN COMBATING CORRUPTION
A. CONCLUSIONS
i. One of the major factors undermining the efficient and effective delivery of public service is poor public service ethics;
ii. The Zambian Government has since the 1990’s being implementing a number of programmes meant to build the capacity of the Public Sector. Specifically, the national programmes include the Public Service Reform Programme, as well as the National Capacity Building Programme for Good Government in Zambia;
iii. The Public Service Capacity Building Programme (PSCAP), was designed with the intention of making public service delivery process more effective and efficient, in order to facilitate economic growth and reduce poverty;
iv. The Zambian Government launched the National Capacity Building Programme for Good Governance in Zambia, (NCBPGGZ), in order to focus on institutional capacity building and strengthening institutional linkages aimed at promoting good governance in Zambia;
v. It is quite evident that combating corruption, money laundering, financial crimes, and economic plunder requires specialized skills;
vi. Development of skills, through structured continuous development programmes, is crucial for combating corruption; and
vii. In terms of the conditions of service and background search, the only clearance required has to do with criminal record. This screening does not involve search of previous misconduct or even involvement in corruption by a potential candidate.
B. RECOMMENDATIONS
i. There is an urgent need for Government to develop and implement a comprehensive training programme for watchdog and law enforcement officers;
172 ii. There is need to review and re-enact a code of conduct for public officers.
The code should provide guidelines for ethical behaviour for public servants, Including avoidance of conflicts of interest;
iii. There should be enact legislation establishing a supervisory and control mechanisms for proper ethical conduct; and
iv. The screening and background search in the recruitment of public servants should be reviewed to include search for previous conduct in corruption, conflict of interest, and declaration of assets.
9.3 CRIMINAL PROCEDURES AND LAW
A. CONCLUSIONS
i. The importance of criminal procedures in the fight against corruption is often overlooked;
ii. The Director of Public Prosecution office is a key institution in terms of instituting and undertaking criminal proceedings against any person;
iii. There are no universal rules for investigating corruption;.
iv. One of the most successful ways, of producing evidence against corrupt public officials is to conduct financial investigations;
v. Zambia does not have a modern and comprehensive code on Evidence;
vi. Under Zambian law there are no clearly defined mechanisms, for the protection of witnesses in public corruption cases;
vii. Sentencing is a complex task. Courts of law should endeavor to hold in balance the various objectives of penal policy; and
viii. Asset forfeiture is a vital part in the fight against corruption. It has an important deterrent effect.
ix. The Task Force is intended to bring together the various competences and disciplines of the enforcement agencies.
B. RECOMMENDATIONS
i. Criminal Procedures and law, require to be reviewed in order to ensure that corruption cases are dealt with expeditiously;
173 ii. The office of the Director of Public Prosecutions requires to be established under a separate legislation, with an independent governing board;
iii. Although there are no universal rules for investigating corruption, there is need to develop national strategies that will assist in detecting corruption and permit effective investigations;
iv. There is need to enact a modern and comprehensive code on Criminal Procedure and Evidence;
v. There is need to provide for under our laws mechanisms for the protection of witness; and
vi. There is need to enact asset forfeiture legislation.
vii. The Government should review the operations of the Task Force and establish a legal framework in which it should operate.
9.4 MONEY LAUNDERING.
A. CONCLUSIONS (i) Money laundering has serious consequences if allowed to occur without preventive action being taken;
(ii) Granted the open and global financial world, characterized by rapid mobility of funds and the introduction of new payment technologies, the fight against money laundering needs to be globally co-ordinated in a comprehensive manner;
(iii) Anti – Money-laundering measures have been put in place to govern the operations of regulated institutions;
(iv) Although the Anti-Money Laundering Unit has been established, the unit has not developed appropriate training programmes through which regulated institutions can impart training to their staff; and
(v) The Zambian economy is essentially a cash economy i.e. most transactions are performed in cash.
(B) RECOMMENDATIONS (i) There is need to raise awareness about the menace of money laundering amongst the politicians, legislators and the citizens;
(ii) There is need to review and re-enact a comprehensive law on Money Laundering;
174 (iii) There is need to modernize the payment system in order to reduce the role of cash in transactions;
(iv) There is need to enact legislation establishing a Financial Intelligence Unit, to collect information on anti-money laundering, analyse it and pass it on to law enforcement agencies for action;
(v) There is need to encourage and improve co-ordination amongst the supervisory authorities; and
(vi) International co-operation needs to be enhanced.
9.5 ACCESS TO PUBLIC INFORMATION
(A) CONCLUSIONS
(i) It is one of the fundamental tenets of a democratic society that a democratic Government must be open to public scrutiny;
(ii) The dissemination of information about public affairs and management of public issues is one of the most frequently cited anti-corruption measures;
(iii) The underlying objective of Freedom of information legislation, is to educate the public and shed light on public affairs with a view to ensuring a high degree of public accountability;
(iv) Worldwide, more than 51 countries have now guaranteed their citizens the right to know; and
(v) The withdrawal of the Freedom of Information Bill from the National Assembly on insubstantial reasons raises serious questions about Government’s commitment and political will to enact Freedom of Information law.
(B) RECOMMENDATION
The government should be urged to re-submit the Freedom of Information Bill for enactment into law.
9.6. WHISTLE BLOWER LEGISLATION
(A) CONCLUSION
(i) Corruption flourishes in a culture of inertia, secrecy and silence;
175 (ii) Whistle blowing is now used to describe the options used by an employee to raise concerns about work place wrongdoing;
(iii) The purpose of whistleblower protection is to encourage citizens to report wrongdoing;
(iv) Whistleblower laws provide incentives to report or at a minimum, prevents potential whistleblowers from being deterred by the possibility of retaliation or other unpleasant consequences; and
(v) Under Zambian law, there are no provisions, that deliberately target the protection of whistleblowers.
(B) RECOMMENDATIONS
(i) In order to promote a culture of transparency and accountability there is need to enact a standalone Whistle Blower legislation that encourages legitimate reporting of corruption and protects “whistleblowers” from victimization or retaliation;
(ii) Whistleblower legislation should be co-ordinated with labour laws. Specifically, employees should not be subjected to detriment for making disclosures; and
(iii) In order to ensure effective implementation, those persons or institutions that receive disclosures must be trained in dealing with whistleblowers.
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