Debunking section 37 of the ACC ACT

The debate on the ACC Bill of September 16, 2010 centres on the assumed “removal” of section 37 of the ACC ACT No. 42 of 1996. Note that the existing law is being reviewed and not amended. It is clearly important that a discussion of whether section 37 is being “removed” or “reviewed” be considered within this context. The international instruments that Zambia is party to provide for legislative reform in a threefold manner. That is, (a) criminalisation of corrupt acts; (b) Seizure of proceeds of crime; and (c) Protection of witnesses or whistleblowing. To which end, early this year two new laws critical to strengthening anti-corruption in Zambia were enacted. These are, the Forfeiture of Proceeds of Crime ACT No. 19 of 2010, and the Public Interest Disclosure (Protection of Whistleblowers) No. 4 of 2010.

The salient assumptions of section 37 of the ACC ACT No. 42 of 1996 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,

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? This has been addressed when the proposed Bill is read together with the Forfeiture of Proceeds of Crime ACT No. 19 of 2010.

Section 31, Non-conviction based forfeiture order for tainted Property, of the Forfeiture of Proceeds of Crime ACT No. 19 of 2010 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.”

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”.

In addition, The Forfeiture of Proceeds of Crime ACT defines property as including

any real or personal property, money, things in action or other intangible or incorporeal property, whether located in Zambia or elsewhere and includes property of corresponding value in the absence of the original illegally acquired property whose value has been determined.

Manifestations of an individual having abused or misused his office position or authority; or maintaining a standard of living above that which is commensurate with his present or past official emoluments, is the physical existence of tainted property!

Section 54, Seizure of property, of the proposed Bill provides the following:

“(1) Where in the course of an investigation into an offence under this Act, an officer has reasonable grounds to suspect that any movable or immovable property is derived or acquired from corrupt practices, is the subject matter of an offence or is evidence relating to an offence, the officer shall, with a warrant, seize the property".

(4) For the purpose of this section, “property” means real or personal property of any description, and includes money and any interest in the real or personal property.

In addition, Section 68 of the proposed Bill provides that, the provisions of the Forfeiture of Proceeds of Crime Act, 2010, shall apply in relation to the seizure and forfeiture of any proceeds or property corruptly acquired by any person and any other related matters.

Further, Part III of the proposed Bill, Corrupt Practices, criminalises misuse or abuse of a public office for private advantage or benefit, and this is provided in a variety of ways, which is more extensive than the existing law.

For example, 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”.

The proposed Bill defines gratification as:

“gratification” means any corrupt payment, whether in cash or in kind, any rebate, bonus, deduction or material gain, benefit, amenity, facility, concession or favour of any description and any loan, fee, reward, advantage or gift, or any other thing obtained as a result of the corrupt misuse or abuse of public funds or property, other than a casual gift.

Evidence of criminalisation of the most known manifestations of corruption is provided 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.

(b) Manifestations of corruption arising from conflict of interest are criminalised in Section 27, Conflict of interest. This new offence is timely, as the country can no longer have public servants running business become suppliers to the very departments they work for.

(c) 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. Of particular interest in Section 33 are the offences of acquiring public property or a public service or benefit; diverting any public property for that person’s or another person’s benefit; and, obtaining 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.

Thence, I observe in "A view from a broken mirror", a detailed reading of the Bill will show that it does actually strengthen anti-corruption in the country, as it 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.