A View from a Broken Mirror

- fencing the ACC Bill of September 16, 2010

1.0 About the Mirror
We all wake up everyday, and look at the mirror. The mirror always shows an image of ourselves as we hope to look that morning. If it does not, we polish ourselves until we are happy with the image. Hah, beautiful! We then continue with our morning chores as the image we have now seen will not scare the world outside of our private spaces.

Many Zambians, ranging from Radio talk show chatterboxes , tabloids, politicians, lawyers to NGO leaders, have looked at (or heard of) the proposed review of the ACC ACT No. 42 of 1996, and are not happy with the image now reflected as the Anti-Corruption Bill of September 16, 2010. Some of these profess an inarguable understanding of anti-corruption, and hence their understandable anger, and well throughout submissions on the issue. Others profess a disputable understanding of anti-corruption, and hence the allegations that the ruling party seeks to protect “thieves” or those that abuse public office for private gain.

The problem with all the contentions is, first that there is a fundamental absence of an understanding that at a distance anti-corruption is a compendium of broken mirrors. Thus, for us to understand whether the proposed review of the current ACC ACT justifies the opposition so far evidenced, these mirrors have to be coalesced into one.

Second, it is also clear that a good number of the so-called newsworthy individuals that have commented on this issue have not read the Anti-Corruption Bill of September 16, 2010.

2.0 The Contentions
From the onset, it must be clear that in this discussion, there is no portending of one being the epitome of the anti-corruption discourse. The discussion simply attempts to clarify why most of the concerns are not founded in an understanding of anti-corruption, but merely a rhetorical argument founded on mistrust and positioning anti-corruption in a single mirror.

The debate on the ACC Bill of September 16, 2010 centres mostly on the “removal” of section 37 of the ACC ACT No. of 1996, and the definitions of corruption or corrupt behaviours in the Bill, thereof. At face value, this section has been removed.

Section 37 titled “Possession of unexplained property”, reads as follows:
(1) The Director-General, the Deputy Director-General or any officer of the Commission authorised in writing by the Director-General may investigate any public officer where there are reasonable grounds to believe that such public officer –
(a) has 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 which is commensurate with his present or past official emoluments;
(c) is in control or possession of pecuniary resources or property disproportionate to his present or past official emoluments; or
(d) is in receipt of the benefit of any services which he may reasonably be suspected of having received corruptly or in circumstances which amount to an offence under this Act.

(2) Any public officer who, after due investigation carried out under subsection
(1), is found to –
(a) have misused or abused his office, position, or authority to obtain advantage, wealth, property or profit directly or indirectly;
(b) maintain a standard of living above which is commensurate with his present or past official emoluments;
(c) be in control or possession of pecuniary resources or property disproportionate to present or past official emoluments; or
(d) be in receipt of the benefit of any services which he may reasonably be suspected of having received corruptly or in circumstances which amount to an offence under this Act;

shall, unless he gives a reasonable explanation, be charged with having, or having had under his control or in his possession of pecuniary resources or property reasonably suspected of having been corruptly acquired, or having misused or abused his office, as the case may be, and shall, unless he gives a satisfactory explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control or into his possession or, as the case may be, how he came to enjoy the benefit of such services, be guilty of an offence.

(3) Where a court is satisfied in proceedings for an offence under subsection (2) that, having regard to the closeness of his relationship to the accused and to other relevant circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused, or acquired such pecuniary resources or property as a gift, or loan without adequate consideration, from the accused, such pecuniary resources or property shall, in the absence of a satisfactory explanation by or on behalf of the accused be deemed to have been under the control or in the possession of the accused.

(4) In this section, "official emoluments" include a pension, gratuity or other terminal benefits.

The salient assumptions of this section are that:
(a)Wealth, property or income disproportionate to one’s known source of income (that is, present or past official emoluments) is a product of abuse or misuse of public office or authority;
(b)Wealth, property or income disproportionate to one’s known source of income is a product of a corrupt act; and that,
(c)The burden of proof that one did not abuse or misuse public office or authority, or indulge in a corrupt act resulting in him or her having wealth, property or income disproportionate to one’s known source of income is not on the State (the accuser).

2.1 The State’s Defence
The State in proposing the “removal” of provisions of section 37 in the “contentious” Bill contends that:
(a)In the current socio-economic dispensation, wealth, property or income disproportionate to one’s known source of income is not necessarily a product of abuse or misuse of public office or authority, or a corrupt act, as such an individual could be involved in running a business that provides the disproportionate wealth, property or income;
(b)The section’s shifting of the burden of proof on the accused individual negates the Constitutional provisions of the Constitution of Zambia ACT of 1996. That is, Article 18 (2) Provisions to secure protection of law, which reads “Every person who is charged with a criminal offence (a) shall be presumed to be innocent until he is proved or has pleaded guilty”. This can be read together with Article 18 (7), which states that, “A person who is tried for a criminal offence shall not be compelled to give evidence at the trial” and that,
(c)Abuse of office is provided in Section 99 (that is, Abuse of authority of office) of the Penal Code ACT CAP 87 of the Laws of Zambia.

2.2 The Objectors Arguments
Objectors (NGOs, Opposition political parties, lawyers and others), on the other hand, contend the following on the “removal” of section 37 in the current ACC ACT:
(a)“The Bill in its current form, fails to adequately align with the provisions of regional and international convention especially when behaviour and corrupt practices like Abuse of Office and Illicit enrichment, which are prominently addressed in the key conventions are left out ” Transparency International – Zambia (TIZ) submission to Parliament ; and mostly that,
(b)The term “abuse of office” is conspicuously absent in the proposed Bill, which is not in line with internationally accepted definitions of Corruption.

3.0 The Dialectics
The State’s argument of the likelihood of an individual accruing wealth, property, or income disproportionate to one’s known source of income, as not necessarily being a product of abuse or misuse of public office or authority, is valid. The question then is – has the likelihood that where it is a product of abuse or misuse of public office or authority been addressed in the proposed Bill? Yes, it has been addressed, as shall be discussed later, in particular the introduction of the conflict of interest provisions.

However, it is also here argued that the State’s argument that section 37 negates Constitutional provisions is inept. This is because Section 31, Non-conviction based forfeiture order for tainted Property, of the Forfeiture of Proceeds of Crime ACT No. 19 of 2010 provides the contrary.

Note that, Section 31 (1) provides that:
“Subject to subsection (2), where a public prosecutor applies to the court for an order under this section and the court is satisfied on a balance of probabilities that the property is tainted property, the court may order that the property, or such of the property as is specified by the court in the order, be forfeited to the State.”

Section 31 (2), further, provides that,
“Where a person claiming an interest in property to which an application relates satisfies the court that the person –
(a) has an interest in the property; and
(b) did not acquire the interest in the property as a result of any serious offence carried out by the person and (i) had the interest before any serious offence occurred; or (ii) acquired the interest for fair value after the serious offence occurred and did not know or could not reasonably have known at the time of the acquisition that the property was tainted property;

The court shall order that the interest shall not be affected by the forfeiture order, and the court shall declare the nature and extent of the interest in question.

The Forfeiture of Proceeds of Crime ACT defines tainted property as:
“means –
(a) any property used in, or in connection with, the commission of the offence; (b) property intended to be used in, or in connection with, the commission of the offence; or
(c) proceeds of the offence”.

It is, thus, argued that this section undoubtedly shifts the burden of proof. This clearly implies that it is the accused person who has to prove that the property was not acquired illegitimately.

Further, whereas objectors have admirably argued their case, and indeed that they have acknowledged the strengthening of anti-corruption in some sections in the proposed Bill is commendable, some of their contentions are, however, disputable.

First, on defining corruption, the ACC ACT No. 42 of 1996 defines corrupt 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, and corruptly shall be construed accordingly”.

The proposed Bill, on the other hand, defines corrupt as:
“the soliciting, accepting, obtaining, giving, promising or offering of a gratification by way of a bribe or other personal temptation or inducement, and “corruption” shall be construed accordingly”.

The contentions in this definition is the absence of the words “misuse or abuse of a public office for private advantage or benefit”. To which end, TIZ observes that:
“The new definition is not compliant with the United Nations Convention Against Corruption and the SADC Protocol Against Corruption. There is no justification why Abuse of power or office should not be one of those behaviours and practices prohibited by the Anti Corruption law in Zambia unless if such has to be legalised. Under Article 19, under, Abuse of functions, the UNCAC Convention provides that “Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the abuse of functions or position, that is, the performance of or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity”.

Section 99, Abuse of authority of office, in the Penal Code, provides that:
“(1) Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights or interests of the Government or any other person, is guilty of a misdemeanour. If the act is done or directed to be done for purposes of gain, he is guilty of a felony and is liable to imprisonment for three years.

(2) A prosecution for any offence under this or either of the two last preceding sections shall not be instituted except by or with the sanction of the Director of Public Prosecutions”.

This section clearly does provide for misuse or abuse of a public office for private advantage or benefit. The critical terms that are being contended, are evident in this section. These are “abuse of the authority of his office” and, “for purposes of gain”. In addition, as shall be shown in succeeding sections, the provisions of Article 19 of the United Nations Convention Against Corruption are substantively provided in the proposed Bill.

To which end, the statement that “there is no justification why Abuse of power or office should not be one of those behaviours and practices prohibited by the Anti Corruption law in Zambia unless if such has to be legalised ”, is infelicitous. This statement is also indicative of the lack of understanding that the ACC ACT No. 42 of 1996 is NOT solely the only anti-corruption law in Zambia. In any case, the criminalisation of corrupt behaviours and practices is provided in the proposed Bill .

Moreover, whether the removal of section 37 negates anti-corruption by a mere omission of expected terms or that it is provided for in the Penal Code is pedantic. It is an argument that simply enhances the view from a broken mirror. This is because Part III of the proposed Bill , Corrupt Practices, criminalises the actual manifestations of misuse or abuse of a public office for private advantage or benefit.

For instance, Section 21, Corrupt use of official power, of the proposed Bill provides that:
“(1) A public officer who, being concerned with any matter or transaction falling within, or connected with, that public officer’s jurisdiction, powers, duties or functions, corruptly solicits, accepts or obtains, or agrees to accept or attempts to receive or obtain for oneself or for any other person any gratification in relation to such matter or transaction, commits an offence”.

Another concern on the State’s argument that the Penal Code does provide for abuse of office, is that its removal from the ACC ACT (which is not the case as will be more evident from the succeeding), implies that it is within the jurisdiction of the Police and not the Anti-Corruption Commission (ACC). It is further argued that possession of unexplained property is not covered in the proposed Bill.

This is grave sophism.

Part III of the proposed Bill, which is within the jurisdiction of the ACC, provides for criminalisation of the most known manifestations of corruption, and clearly does cover illicit property or possession of unexplained property. In addition, there is no rule of thumb, which says only the Police can handle Penal Code offences. The ACC has used the Penal Code in the past.

It is also, here, argued that the NGOs’ concern that Section 99 of the Penal Code in referring to Abuse of authority of office as a misdemeanour minimises the seriousness of corruption as this “makes it less serious with weak sanctions and penalties”, is regrettably evident of objectors not having read the proposed Bill in its entirety. Hence, it is argued that, if Section 21 of the proposed Bill adequately covers the concern on misuse or abuse of a public office for private advantage or benefit, then it should be inarguable that its being considered misdemeanour in Section 99 of the Penal Code is obtuse. This is because the penalty for Section 21, Corrupt use of official power, provided in Section 40, General penalty, is severe.

Section 40, General penalty, states:
“A person who is convicted of an offence under this Part, for which no penalty is provided, is liable -
(a) upon conviction, to imprisonment for a period not exceeding ten years;
(b) upon a second or subsequent conviction, to imprisonment for a term of not less than five years but not exceeding ten years; and
(c) in addition to any other penalty imposed under this Act, to forfeiture to the State of any pecuniary resource, property, advantage, profit or gratification received in the commission of an offence under this Act”.

Second, illicit property or possession of unexplained property is not only covered under the manifestations of corruption that the proposed Bill extensively addresses itself to, but also Section 31, Non-conviction based forfeiture order for tainted Property, of the Forfeiture of Proceeds of Crime ACT No. 19 of 2010, as shown above.

Premised on the core of most of the dissenting views on the proposed Bill, it is undoubted that a reservation that will be raised on the definition of tainted property is surely that the words “corruptly obtained” are not in the definition.” The bottom line, however, is that any property acquired in the commission of an offence is tainted property. Thence, if we accept that corruption is an offence, then this surely addresses the concern of illicit property or possession of unexplained property. It must be understood that illicit property or possession of unexplained property has no single law enforcement jurisdiction domain, and its provision in the Forfeiture of Proceeds of Crime ACT allows all law enforcement agencies the leeway to apply it in pursuit of their legal mandates.

Even if we are to accept that the provisions of the Forfeiture of Proceeds of Crime ACT do not substantively address the issue of illicit property or possession of unexplained property, it is argued, here, that Section 35, Concealment of property, of the proposed Bill does so. Section 35 states:
“A person who –
(a) converts, transfers or disposes of property, knowing that such property is the proceeds of corruption or related offences for the purpose of concealing or disguising the illicit origin of the property or of helping any other person who is involved in the commission of the offence to evade the consequences of that person’s action;
(b) conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to property which is from the proceeds of corruption or related offences; or
(c) acquires, possesses or uses any property with the knowledge at the time of receipt, that such property is from the proceeds of corruption or related offences; commits an offence and is liable, upon conviction, to imprisonment for a period not exceeding two years.”

If we read this provision together with Section 31 in the Forfeiture of Proceeds of Crime ACT, the “balance of probabilities that the property is tainted property” can subsume the assumption of knowledge of commission of an offence.

Third, evidence of criminalisation of the most known manifestations of corruption is, here now, shown in the outstanding features of the proposed Bill relating to:
(a)Manifestations of corruption such as opportunities for financial kickbacks in the design or selection of uneconomical projects, procurement, public bidding (tenders), illicit payments of "speed money" to government officials to facilitate the timely delivery of goods and services to which the public is rightfully entitled (like permits and licenses) are provided in Sections 19 to 23, 25, 28, 31, and 32.
These sections provide for anti-corruption in the contexts of Corrupt practices - by, or with, public officers; by or with, private bodies; by, or with, agents; or members of the public or private. This is, with respect to solicitation, offering of bribes and any gratification as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, anything in relation to any public matter or transaction, actual or proposed.

Note that, Section 28, Gratification forgiving assistance, etc., with regard to contracts, also criminalises such manifestations. Section 28 states:
“(1) A public officer who, directly or indirectly, by oneself, or by, or in conjunction with, any other person, corruptly solicits, accepts or obtains, or agrees to accept or attempts to receive or obtain, from any person for oneself or for any other person, any gratification as an inducement or reward for or otherwise on account of, that public officer giving assistance or using influence in, or having given assistance or used influence in –
(a) the promotion, execution or procurement of (i) any contract with a public body or private body for the performance of any work, the provision of any service, the doing of anything or the supplying of any article, material or substance; or (ii) any sub contract to perform any work, provide any service, do anything or supply any article, material or substance required to be performed, provided, done or supplied under any contract with a public body or private body; or
(b) the payment of the price, consideration or other moneys stipulated or otherwise provided for in any contract or sub contract; commits an offence.
(2) A person who corruptly gives, promises or offers any gratification to any public officer as an inducement or reward for, or otherwise on account of, such public officer giving assistance or using influence in, or having given assistance or used influence in –
(a) the promotion, execution or procurement of; or
(b) the payment of the price, consideration or other moneys stipulated or otherwise provided for in; any contract or sub-contract commits an offence”.

Noteworthy is that the succeeding cited Section 28, also provides for manifestations of corruption as in the sale of official posts, positions, or promotions; nepotism; or other actions that undermine the creation of a professional, meritocratic civil service.

Particular mention should also here be made of Section 32, Coercion of investor , which states that:
“A public officer who –
(a) performs or abstains from performing any act in that public officer’s capacity as a public officer;
(b) expedites, delays, hinders or prevents the performance of any act; or
(c) assists, favours, hinders or delays any person in the transaction of any business with a public body; in order that an investor or potential investor is coerced, compelled or induced to abandon the investment or induced to abandon the investment to the advantage of another person, commits an offence and is liable, upon conviction, to a fine of not less than two hundred thousand penalty units or to imprisonment for a period not exceeding two years, or to both.”
(b)Obstruction of justice and interference in the duties of agencies tasked with detecting, investigating, prosecuting illicit behavior, and arbitrating (the judiciary) is criminalised in Section 24, Corruption of witness, and in Section 30, Obstruction of justice . Section 30, for instance in part, states:
“A person who, by use of corrupt means interferes with the exercise of official duties by a judge, magistrate, judicial officer or any other arbiter or law enforcement officer, commits an offence and is liable, upon conviction, to imprisonment for a period not exceeding two years”.
(c)Manifestations of corruption arising from conflict of interest are criminalised in Section 27, Conflict of interest. This section states:
“(1) Where a public body in which a public officer is a member, director, employee or is otherwise engaged proposes to deal with any person or company, partnership or other undertaking in which that public officer has a direct or indirect private or personal interest, that public officer shall forthwith disclose, in writing to that public body, the nature of such interest.
(2) Where a public officer or a relative or associate of such public officer has a personal interest in a decision to be taken by a public body, that public officer shall not vote or take part in any proceedings or process of that public body relating to such decision.
(3) A public officer who contravenes subsection (1) or (2) commits an offence and is liable, upon conviction, to imprisonment for a period not exceeding three years.
(d)Manifestations of corruption of theft or embezzlement of public property and monies, and tax evasion are now criminalised in Section 33 , Corrupt acquisition of public property and revenue. Section 33 states:
“(1) A person who fraudulently or unlawfully-
(a) acquires public property or a public service or benefit;
(b) diverts any public property for that person’s or another person’s benefit;
(c) mortgages, charges or disposes of any public property; or
(d) obtains any exemption, remission, reduction or abatement from payment of any tax, fee, levy or charge required to be paid under any law; commits an offence .

(2) A person whose functions concern the administration, custody, management, receipt or use of any part of public revenue or public property commits an offence if that person –
(a) fraudulently makes payment from the public revenue for - (i) goods not supplied or not supplied in full; or (ii) services not rendered or not adequately rendered; or
(b) willfully fails to comply with any law or applicable procedures or guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts, management of funds or incurring of public expenditures.

(3) A person who commits an offence under this section is liable, upon conviction, to imprisonment for a period not exceeding five years.

(4) For the purposes of this section, “public property” means real or personal property, including public funds or money of a public body or under the control of, or consigned or due to, a public body”.

Lastly, the ACC’s jurisdiction on corruption during an election is now provided for in Section 34. This Section states that the Commission has jurisdiction to investigate and prosecute any offence of bribery prescribed under the Electoral Act, 2006.

In retrospect, the foregoing shows that the proposed Anti-Corruption Bill of September 16, 2010 is cognisant of the fact that corruption is a set of behaviours and practices that have manifestations that can have deleterious effects on individuals, society, business, and the State. From the foregoing, it is evident that the Bill to a considerable extent addresses the manifestations, and indeed the behaviours and practices characterising corruption or a corrupt act.

4.0 A View from a Broken Mirror
When I started writing this paper on the so much talked about proposed Anti-Corruption Bill of September 16, 2010, I did mention that at a distance anti-corruption is a compendium of broken mirrors, and that the concerns are mostly a fundamental absence of this understanding.

The issues I have discussed in the foregoing, inarguably show a critical failure of reasoning mostly premised on the assumption that we should have silo-mentality, and the inability to coalesce the broken mirrors into one. That is, in our laws we should read the exact terminologies that exist in international instruments; in a manner that we as individuals or NGOs construe; or, that we should only look at the single piece of the mirror that makes us look beautiful.

To understand, anti-corruption efforts and its strengthening, thereof, we should discard silo-mentality. We should sometimes accept that the terms like “abuse or misuse public office or authority” can be substantively provided for by simply criminalising the manifestations of these behaviours , or even writing them differently. Thus, I here strongly argue that the proposed Bill has irrevocably achieved anti-corruption strengthening.

It should irrefutably be accepted that manifestations are more evidential than actual terminologies describing an offence, and easier from a prosecution perspective. This is however, not to say terminologies are redundant, but to merely fence the importance of such an approach.

I, further here argue that, adherence to international instruments cannot be solely from use of terminologies. It should be from whether the deleterious effects the instrument seeks to address are substantively covered.

In retrospect, the Anti-Corruption Bill of September 16, 2010 is only a view from a broken window, if one does not synthesis its provisions and that of other laws critical to anti-corruption. It grates to think just because a particular terminology is used in an international document or a law from some other country, then it is right that that terminology should also be reflected in our documents, with the requisite commas and full stops.

To which end, the question that should be asked (if we do not see the famed anti-corruption catchwords) is - are the manifestations of abuse or misuse public office or authority or corruption itself, per se, provided for in the proposed bill, and other laws critical to anti-corruption? The answer is definitely a function of whether anti-corruption in the proposed Bill is viewed from a broken mirror or coalesced mirrors!


This paper is available on http://miliko.vndv.com/