Alex T. Magaisa

Why ZEC must hang its head in shame

Last week’s BSR argued that the suspension of by-elections through SI225A of 2020 was illegal because it contravened sections 134 and 158(3) of the Constitution. This week, the Speaker of Parliament reportedly announced that the statutory instrument was yet to get the approval of the Parliamentary Legal Committee (PLC) which cast more doubt on its legality. It would be surprising if the PLC finds the statutory instrument to be constitutional because, as explained in the last BSR, it contravenes several provisions of the Constitution.

The PLC is a committee of MPs that has the constitutional duty to scrutinize all legislation before it is passed by Parliament. The functions of the PLC are set out in section 152 of the Constitution, which requires it to examine a statutory instrument to determine its constitutionality. Section 134(f) requires all statutory instruments to be laid before the National Assembly following its Standing Orders. It requires them to be submitted to the Parliamentary Legal Committee for examination. This is what National Assembly Speaker Mudenda was referring to.

ZANU PF itself had flagrantly disregarded the suspension of by-elections because it went ahead with primary elections in various constituencies. These primary elections are designed to select candidates for the by-elections which the government it leads has purportedly suspended. If anything, the statutory instrument was a piece of gamesmanship, designed to lull the opposition into believing there were no by-elections while ZANU PF was busy preparing for the same. Thankfully, the genuine opposition saw through it and went ahead with its own primaries. It was only the judicially constructed MDC-T, which has no appetite for competitive elections which welcomed and accepted the illegal suspension of by-elections.

Nevertheless, the episode exposed the Zimbabwe Electoral Commission (ZEC) for its malleability in favour of regime directives. As the political referee, ZEC is supposed to be independent of political influence. It should not be directed by anyone. It should stand firm and defend its mandate as the body responsible for running elections. It should be insisting to the government what the Constitution and Electoral Law require. An independent body exercising its mind professionally would have told the government that SI225/20 was illegal, whatever the other considerations that the government had in mind. Yet ZEC offered no resistance whatsoever. It feebly succumbed to the directions from the Minister of Health and Child Care.

Regrettably, ZEC lacks the mettle to defend its autonomy. ZEC had already shown that it was preparing to hold COVID19-compliant by-elections. It knows that many other countries have readjusted their electoral systems to be COVID19 compliant. ZEC had taken similar steps. But as soon as the Health Minister announced his decree, ZEC promptly changed its tune and began to defend the suspension of by-elections.

With such a timid and malleable political referee that can bend to the government’s will, prospects of free and fair elections in Zimbabwe remain extremely slim and even that is a generous assessment. Those who run ZEC do not have confidence in their mandate. They seem to believe that they operate under the direction of the government. ZEC Chairperson, Justice Priscilla Chigumba is making Speaker Mudenda look like a constitutional law star. She gave in too soon before she considered the illegalities of SI225/20, which is her mandate.

Ominous signs at the Human Rights Commission

Speaking of independent and impartial referees, one of the appointments at the Zimbabwe Human Rights Commission is a serious cause for concern for the apparent conflict it presents and the ominous signs it represents. If the farmer entrusts a troop of baboons to look after his maize field, he is unlikely to yield anything at the end of the season. Dr Angeline Guvamombe is a former Officer Commanding ZRP Support Unit, also known as the Riot Police. The other colloquial name for that unit is Black Boots, on account of their distinctive footwear.

Members of this unit are not known for their peaceful disposition. They are notorious for using excessive force upon citizens, which they do with palpable zeal and enthusiasm. They are violent and trigger happy. The unit has been involved in rampant human rights violations during demonstrations. It is fair to say their conduct does not suggest any serious investment in human rights education and it is a reflection of the unit’s leadership.

One of the key findings of the Motlanthe Commission which was set up after the 2018 elections was that six civilians had been shot and killed by members of the military or police. These were serious human rights violations, but not a single soldier or police officer has been held accountable. None of the commanders had been held to account. Now, a former boss of the police unit which was involved in these violent and murderous incidents has been appointed to the board of commissioners of the Human Rights Commission. It is like appointing a hyena to look after the interests of goats. The conflict of interest could not be starker.

This is not to say former police officers are precluded from taking public roles beyond their retirement. They can and sometimes their investigative skills might be useful. However, good practice would require a “cooling off” period between leaving their role in the security sector and taking up public office. Therefore, one can jump from one institution which has a poor record of human rights violations into a role that is supposed to safeguard human rights.

The ZHRC has been the one beacon of light among all the institutions designed to support democracy. It has consistently stood for the ordinary people. It has never shied away from criticizing the government for human rights violations. It has so far performed its role with admirable courage and clarity. It has been more remarkable in an environment where most institutions are captured by the government and do the ruling party’s bidding. The stance taken by the ZHRC has left the government very uncomfortable.

In these circumstances, one cannot ignore the perception that these latest appointments, especially of the former boss of an institution that has shown little regard for human rights, are designed to neutralize the ZHRC. Defenders of the regime will argue that the appointments were recommended by Parliament, but it is not a good defence because Parliament itself and the recommending committee are dominated by ZANU PF.

The ZHRC was doing a fantastic job standing up in defence of fundamental rights and freedoms. But that may be about to change. Years from now, if not just a matter of months, citizens should not be surprised if the ZHRC begins to behave its poor cousin ZEC which lost its constitutional and moral compass a long time ago and whose predominant response is “How high?” when the regime commands it to jump. It will become another statistic of how institutions lose direction on account of a compromised human factor.

The optimists will say perhaps Dr Guvamombe will have a Damascene moment in the corridors of the Human Rights Commission. Maybe she will leave the Black Boots behind her and become a champion of human rights. To be proven wrong in such circumstances would be a pleasant surprise.

Removal of public officers

The independence of public officers is an important feature of the system of checks and balances which is necessary for good governance. Several factors help to support their independence. They include the process by which they are appointed, providing for adequate remuneration, rules preventing directions from external sources, and the process by which they are removed from office. The Constitution has provisions that cater to these features.

Therefore, judges and members of independent commissions are supposed to be appointed through open and transparent processes. This is also why Constitutional Amendment No. 2 has been heavily criticised because it seeks to erode the openness and transparency of appointing judges of the highest courts in the country. However, one issue that has arisen in recent months is the process by which these public officers are removed from office.

This week it was announced that a judge of the Supreme Court had been removed from office. The government stated that Justice Francis Bere had been relieved of his duties for gross misconduct. The government also announced that a judge of the High Court, Justice Erica Ndewere was under investigation, a process that might lead to her removal.

In the past, two Prosecutor Generals were fired in quick succession. The first to be sacked in 2017 was Prosecutor-General Johannes Tomana. He was fired for misconduct and incompetence. In a remarkable turn of fortunes for a man who was held to be incompetent and guilty of misconduct as a public officer, Tomana is now the country’s ambassador to the DRC. His replacement at the Prosecutor General’s office was Advocate Ray Goba. He was also effectively sacked because after a tribunal had been appointed to investigate him, he decided it was better to jump. He probably realised that it was not worth the trouble of going through the tribunal because once it was set up, his fate was sealed.

There was also another announcement this week that a tribunal has been appointed to investigate two members of the Zimbabwe Land Commission, Tadious Muzoroza and Jeanette Marrie Manjengwa. According to The Herald report, the two are being accused of co-authoring an abstract which allegedly “painted a negative picture of the country’s land reform programme in respect of the land tenure and allocation of land to women, youths and farm workers”. This abstract was allegedly uploaded onto a World Bank Conference website. The allegation is that the abstract referred to material in the Land Commission’s National Comprehensive Land Audit Phase One Report.

The charge against the two commissioners sounds vague and curious. It is not clear whether their offence is that they used confidential information or that they were critical of the land reform programme. The Herald’s report suggests that the regime was peeved by the latter. It is also unclear whether they uploaded the material in their capacity as commissioners or as scholars. As we shall see shortly, this is precisely why there is a need for reform in the procedure for removing commissioners because the opaque character of the current process is prone to abuse.

The case of Justice Ndewere is an intriguing one. The Judicial Service Commission felt compelled to refute allegations that she was being punished for granting bail to MDC Alliance Deputy Chairperson and MP, Job Sikhala. This is because the announcement of her investigation for alleged misconduct came hard on the heels of her decision. The JSC argues that the allegations of misconduct were already being investigated long before the Sikhala case. It still does little to shake off the perception that the move was retaliatory against a judge who had refused to follow instructions.

While it is true that the allegations had been raised earlier, a review of the timeline shows that it was not by coincidence that her letter of investigation pending removal was served a day after Justice Ndewere had reserved judgment in the Sikhala case. A reasonable bystander could easily read that as an act designed to put pressure on the judge in her decision-making process. Even if it were not the case, the authority would have known that it would have a damaging effect on the judicial officer who was in the middle of performing her duties. There is something amiss in the JSC’s handling of investigations into the judge’s conduct which needs reviewing.

The fact of the matter is that judges are operating under desperate conditions. But this is not unique to judges. It is the same predicament that teachers, doctors, and other civil servants find themselves in. They have been reduced to conditions of penury, which is why young doctors have been seen apologising to the government as if they were children pleading for forgiveness from a parent. The government likes this because it enhances the subordination of these public officers who are supposed to operate with dignity and independence. The sense of professionalism is eroded and impacts their delivery. It will be very difficult for public officers who are supposed to be independent to avoid improper directives from their superiors who treat them like young children.

This is particularly worrisome after Chief Justice Malaba issued a directive to judges a few months ago, which required High Court judges to show their judgments for approval by their superior before their delivery. Judges of the High Court and lawyers converged to resist this illegal directive which threatened judicial independence. It is these interferences which give rise to perceptions of attempts to undermine the independence of judges. The JSC is now in a position where it is perceived as an instrument operating against as opposed to supporting judges in their performance of their constitutional duties. It does not help that judges now operate in conditions of fear with suspicions that some of the support staff in the courts perform spying briefs for superiors. A judge should never have to look over their shoulders, wondering who is watching them.

Under the Constitution, judges and members of commissions can only be removed after an investigation and recommendations of a tribunal that is appointed by the President. This is meant to provide checks and balances so that these key public officers are not at the mercy of presidential whims. A panel of investigators must investigate to determine whether a public officer has committed any transgressions.

The problem with the current system is that these reports and recommendations of the tribunal are not public. Therefore, while there is transparency in the appointment process, there is no transparency in the process of removal. This is a gross anomaly. To merely say a judge has committed misconduct and must therefore be fired without showing the nature of misconduct is an omission that needs to be corrected. As the adage goes, justice must not only be done, but it must also be seen to be done. The opaque nature of the removal process needs clearing to improve confidence in the system.

Judges’ conditions of service

One of the issues that have arisen is the problem of judicial poverty. This directly impacts on the independence of judges and their ethical conduct. When judges are poorly remunerated and when their conditions of service are parlous, they fall prey to the unscrupulous. To survive and to maintain their status in society, they end up being compromised. The chances of judges getting corrupted increase in line with their poor conditions of service.

Imagine a judge having to queue for fuel. They end up begging for or falling for favourable treatment. The BSR understands that judges have had to use their trade union, an association of judges to make arrangements with a major fuel supplier so that they can get fuel. This places them in a position of conflict of interest if ever that fuel supplier is involved in litigation against another party. It is hard to imagine that a judge would be impartial when he must decide where this benefactor is involved. But judges have had to get into these private arrangements to preserve the dignity of their office.

One can only imagine what other arrangements and with which parties that judges must do deals to get by in a harsh economic environment. This is a situation where wealthy and corrupt godfathers end up owning judges and buying justice simply because members of the judiciary are impecunious. The reason why judges must rely on remuneration from the Consolidated Revenue Fund (the legal name for State coffers) is to prevent them from being captured by private interests. Once they start receiving gifts and favours from external parties, the system of justice becomes compromised.

The executive has enormous power over judges. It is the executive that determines their conditions of service. There is no independent body that performs that role thereby shielding them from the executive. The JSC pleads that it is not their employer or appointing authority. However, judges have no direct line of communication with the appointing authority. They cannot strike or cry out in public like other civil servants for fear of undermining their office in the eyes of the public. This leaves them at the mercy of the executive. If they regularly rule against the executive, they might be punished. Yet if they must beg from the President, they expose themselves to someone whose office might be a party to legal proceedings which they must judge. In a normal country where systems work well, judges should never be left in that precarious situation.

If there is a problem of corruption and poor performance in the judiciary, and the Prosecutor General has alleged that there is, then it is a systemic issue, not one limited to individual judges. Removing one judge or another might seem to be an exercise in removing a bad apple, but the problem is probably more rampant and requires a different approach than merely convening one tribunal after another. A judge who spends hours trying to supplement his or her meagre income by moonlighting, or even to secure fuel can hardly be expected to be efficient in carrying out their duties. The situation is said to be so bad that judges must share those wigs they wear in court, a serious hazard in the conditions of the COVID19 pandemic.

If the government is serious about fighting corruption and misconduct in the judiciary, it must adopt a more comprehensive approach. President Mnangagwa might be better advised to establish a commission which inquiries into the conditions of service of judges. There is a host of challenges in that arm of the State which include porous leadership.

What has happened to this year’s Auditor General’s Report?

Each year, the Auditor General, Mrs. Mildred Chiri, and her team meticulously go through government and parastatals’ books of accounts. They produce comprehensive audit reports which demonstrate the weaknesses in our system of financial governance. Many of their findings reveal losses and leakages caused by either incompetence or corruption.

Last year, the BSR carried two comprehensive reviews of the AG’s reports. We saw how companies like ZESA were heavily prejudiced by blatant acts of corruption. In one case, ZETDC, a wholly owned subsidiary of ZESA paid US$4.9 million in 2010 to a company called Pito Investments for the delivery of transformers. Ten years later, Pito Investments has never delivered the transformers. The beneficial owners of Pito Investments have not been revealed. They siphoned nearly US$5 million of taxpayers’ money.

In another case, this time in 2016 the same company Pito Investments was paid US$561 935 by another ZESA subsidiary, the Zimbabwe Power Company. Again, there was no delivery of the goods. In a third case, the Zimbabwe Power Company paid ZAR196 064 to York Investments for gas but there has been no delivery. Then there was the case of a company called Solutions Motors. It entered a contract with the Department of Irrigation on 19 December 2017 for the purchase of 10 vehicles. The contract was worth US$518,850.00 and Solutions Motors was paid the full amount in advance. Solution Motors delivered only 6 vehicles that did not meet specifications. The remaining 4 vehicles were never delivered. The outstanding vehicles are worth US$207,540.00. The Department of Irrigation did not seek redress to recover the money or specific performance from Solution Motors.

But Solutions Motors was not done. It had another agreement with the Department of Irrigation on 5 December 2017 for the purchase of plant and equipment which included excavators, tipper trucks, motorised compactors, and a water bowser. The contract was worth US$958,665.00 which was also paid in advance. At the time of the audit in 2018, Solutions Motors had only delivered under half the value of the contracted plant and equipment. Goods worth US$515 650 had not been delivered.

Quite apart from the inadequate performance, the beneficial ownership of Solutions Motors has never been revealed. In other words, who are the owners of this company? This is a matter that requires further investigation. Yet there has never been any appetite from the government or from the Zimbabwe Anti-Corruption Commission to get to the bottom of these matters, let alone to recover the loss of public funds.

These are just a few examples of the corruption that was uncovered by the AG in her audit. If the government were as serious as it purports, it would have moved mountains to recover these looted funds. This is the same government that pleads poverty when teachers and doctors demand decent wages. There is no evidence that companies like Solutions Motors or Pito Investments went through proper public procurement procedures to earn those contracts which they clearly could not deliver.

The BSR raises these cases as a reminder of the lack of interest in this government to genuinely fight corruption. It may target a few political outcasts here and there and present it as evidence of fighting corruption. Yet these open and shut cases are left to fester, even as there is clear evidence of the looting of public funds. They pretend that they do not exist. These corporate vehicles were no more than instruments of looting public funds. It can only be that the beneficial owners are on the side of the regime, the current untouchables. They might emerge at some later point should there be a political fallout with the beneficial owners.

This year, however, the AG’s reports are yet to be released. However, it is just a few months before the end of the year. Usually, by June, the reports would be public. It is not clear why they have moved at a snail’s pace this year. The COVID19 pandemic may be used as an excuse. Are they being held somewhere in government channels? The Constitution requires the AG to report to Parliament. Hopefully, that will be done before the close of the year. It is important to know what else has happened in the intervening year. It is also important to know the follow-ups, if any, to cases that were highlighted in the previous reports. One must hope that no external brakes have been applied to the AG’s processes.

Alex Magaisa

[email protected]