A Divine Law?

There is a presumption of divinity in the debate of section 37 of the ACC ACT No. of 1996, and more so from the voices that continually are trying to convince me that "abuse of office", has been removed in the proposed Anti-Corruption Bill of September 16, 2010. Slowly, there is no more doubt in my mind that if it is not mere political rhetoric on their part, then this "law" in their minds is of such olympian excellence that it has been inspired by the gods. The question then is. Can the gods be wrong? No. The gods are never wrong, it is always the interpretation that is wrong.

In demystifying the assumed removal of section 37, and my consistent argument that nothing in the proposed Bill (when read together with the Forfeiture of Proceeds of Crime ACT No. 19 of 2010) has resulted in what is being argued as "the removal of abuse of office offence", I first start by advising that a good argument can never be founded on binary logic. A good argument is founded on dialectics.

Thus, that I argue the contrary to what is the mainstream in the private media, should NOT be construed to mean I accept Government's defense of the issue. I don't. Their rationalisation and mine are not founded on the same reasoning. There are merits and demerits in the Government's defense, but that should not be something any reasoning person should concern themselves with. The proposed Bill, and other anti-corruption laws are there in black and white. One does not have to argue in a manner that George Kunda or Mulongoti argues. That is, their opinions, and whereas one may or may not respect their opinions, I expect that logic should dictate that any person commenting on the issue should synthesise the proposed Bill in the broader context of anti-corruption.

If they did so, then the divinity so proclaimed in section 37 will still be evident.

To understand this, we have to consider section 37 in its pure nakedness.

Section 37 au naturel


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.

With hindsight, what I have found interesting about this section is its title. Possession of unexplained property. And this is where the argument that "abuse of office" has been removed becomes obtuse. The critical salient features of this section are property, wealth, advantage and profit.

1. Is the section not prescribing that possession of unexplained property is a crime?

2. Is the section also not prescribing that gaining advantage or profit (whether tangible or intangible) is a crime?

3. Isn't the section telling us that property, wealth, advantage and profit is a manifestation of one misusing or abusing his office, position, or authority?

4. Conversely, isn't 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 (Section 99 (that is, Abuse of authority of office) of the Penal Code ACT CAP 87 ) misusing or abusing his office, position, or authority?

If 1 to 4 are correct, then how can section 37's divinity not be read in the proposed Bill and the Forfeiture of Proceeds of Crime ACT.

I argue this, because possession of unexplained property is criminalised in Section 54, Seizure of property, of the proposed Bill. This section provides that:

(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..

And note that 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.

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”.

Critically, if one has wealth, property or income disproportionate to one’s known source of income; or wealth, property or income disproportionate to one’s known source of income - these situations are inarguably criminalised in the proposed Bill and the Forfeiture of Proceeds of Crime ACT.

Further, gain or advantage is criminalised in Section 27, Conflict of interest, of the proposed Bill.

The bottom line is, the provisions of the divine law are provided in the proposed Bill and the the Forfeiture of Proceeds of Crime ACT.

In retrospect, undoubtly, thence, the assumed divinity of section 37 and the rhetoric arising is merely evidence of a narrow interpretation of anti-corruption laws and indeed the political polarisation inherent in this country. The divine law is still intact, only its interpretation is misconstrued.

Many thanks. Comments are welcome.