by Alex Magaisa
A tale of multiple personalities
One thing you notice when dealing with politicians is that a significant number of them have double, if not multiple personalities. They have mastered the art of effortlessly navigating from one persona to the other. One might be a decent, reasonable and even charming gentleman in one setting, but can turn out to be highly aggressive, rude and utterly unreasonable in the next. If you are not familiar with this behaviour, you will naturally be very confused. You might wonder how a man who appears so reasonable in one setting, can be so obnoxious at a political gathering. I don’t know how their families cope with these transformations, because oft-times the man who snarls at people in state media is not the kind and gentle dad they know at home. They are probably accustomed to it.
This is a familiar experience, as often told by those who have encountered President Robert Mugabe in private meetings. After meeting him, many have described him as a gentleman who is reasonable and charming. Yet they are shocked when they see a completely different character when he appears on a public platform. He can be incredibly aggressive, rude and nasty towards those with different political views. It is hard to reconcile the two characters – the private gentleman and the public brawler.
Unsurprisingly, many ZANU PF politicians take after their leader. On a chance meeting at a cocktail event on the diplomatic circuit, I once asked a ZANU PF official why they behave like that, because he was a completely different character from the one I had known through the media. I wanted to know why privately, they seem like decent human beings, far removed from the abrasive and insufferable characters we know publicly.
“It’s politics, munin’ina,” he said with a knowing laugh. I suspected it was not an unfamiliar question.
“When I’m out there, I have to do what is expected of me. But here, when we are alone, it’s different. I can be myself.”
He turned his head both sides rather nervously, in the manner of a person scanning the vicinity to make sure no one had overheard him. He had probably forgotten that we were not exactly alone as it was a cocktail event. But I understood his point. I had several encounters with ZANU PF characters during the course of duty and save for a small minority, their characters in private spaces did not match their public personalities, characterised as they are by a severe lack of reason, stubbornness and aggressiveness.
I understood why the ZANU PF official was nervous in that brief moment. Most ZANU PF politicians live in perpetual fearful that they are constantly being watched. In response many have to put up a front and behave in a manner they believe is expected of them. This expectation is of course by the system, whose make-up we have previously dealt with on these pages.
During the constitution-making process, those of us who were on the other side, learnt to tolerate the angry outbursts and aggressiveness of our ZANU PF counterparts, although it was quite disconcerting and frustrating in the earlier stages. Later it became apparent that oft-times, they were doing it for the benefit of those who were watching them. Those who kept a watching brief reported on the performance of the negotiators. So on occasions we played along. Helping them to be angry and combative became a negotiating strategy because if they were not seen to be combative, their bosses would not trust them. If they were not combative enough, the bosses would think they were giving in too easily and selling out. It was to our advantage to exploit the aggressive personality – to encourage them to be abrasive. The reason is that the negotiators were actually quite reasonable for the most part and it would have been a disaster if they had been removed and replaced by a new team.
Nevertheless, the process of shifting from one persona to another is the hallmark of the dishonest and destructive politics nurtured by ZANU PF over the years. It enables otherwise reasonable people to do the most unreasonable and despicable things possible simply because once they wear the ZANU PF persona they become morally disengaged. It is in this state of moral disengagement that they do the most ridiculous things and they find justification for it in the name of the party. Like a chameleon, the ZANU PF politician adopts the behaviour and culture of his new surroundings as a matter of survival and is able to justify and excuse things he would struggle to support in his private persona.
The problem is that the behaviour and culture associated with ZANU PF is at odds with what is normal and acceptable in ordinary society. Whereas stealing is received with outrage by normal society, within ZANU PF, it is regarded as petty. Public officers steal and misuse public property with impunity because they know that nothing will happen to them. In ordinary society, if a manager diverts a company’s funds to his own business, he would be regarded as a fraudster and might be prosecuted and will certainly lose his job. But if a ZANU PF Minister diverts public funds in a similar way, he would probably justify it as normal, because that is what ZANU PF Ministers generally do. If any action is taken against him, he might argue, with a strong sense of justification, why he and he alone is being targeted when everyone else is also doing it. He might also argue that he was doing it for the party and the President, both of which are perfectly acceptable excuses and justifications within culture of the system nurtured under ZANU PF rule.
It is therefore important to understand the nature and make-up of ZANU PF – why and how it nurtures this phenomenon of multiple personas, including one that is morally disengaged – the vile, aggressive and quite frankly, psychopathic personality.
ZANU PF as a psychopath
In his critique of the corporation, Joel Bakan describes it as a “psychopathic creature” which “can neither recognise nor act upon moral reasons to refrain from harming others”.
A psychopath lacks remorse, does not have empathy and carries the burden of emotional detachment. In extreme cases, a psychopath has no regard for life. He is emotionally disconnected. He is indifferent to the suffering of other people as long as he is profiting from his actions. He is selfish and dangerous. Far from feeling guilty for his actions, the psychopath finds justifications. He manufactures labels to legitimate and justify his actions. Studies have shown that even high-flying, successful professionals can carry a psychopathic streak, even though they don’t know it.
Joel Bakan argues that the make-up of a corporation (company) drives it into this psychopathic behaviour. The corporation is designed to pursue self-interest and there is nothing in its make-up which can stop it from doing harm to others, he argues. In fact, it is compelled to cause harm to others whenever the benefits of that conduct outweigh the costs. The only thing that matters to it is self-interest and the fact that lives or the environment can be at risk due to its conduct does not stop the corporation in its enterprise. This harm that is caused to others as the corporation pursues self-interest is sanitised by the language of economics which regards the resulting problems as “externalities”.
Bakan goes further, pointing out that as a business model, the corporation is designed in a manner which compels it to externalise costs. To make profits, costs must be kept low. This means passing on the costs to others. These are the so-called externalities. This is why, instead of building an industrial waste system, a company might find it easier to dump it in a nearby river. The fact that this waste might be toxic to the environment and to people living downstream will not bother the corporation – it is regarded as an externality – a cost that others will carry. This leads Bakan to conclude that“the corporation’s built-in compulsion to externalise costs is at the root of the world’s social and environmental ills” and makes it a “profoundly dangerous institution”. Companies are morally blind, he argues and everything else, including people, are tools to generate as much profits as possible.
This description of the corporation is harsh, but I employ it here as a starting point in an effort to understand the nature of ZANU PF and what compels its mode of operation, which is egocentric, aggressive and generally indifferent to the views and feelings of others that stand in its way. An analysis of its make-up, culture and conduct suggests that it too is something of a psychopathic creature. Whereas the corporation’s primary pursuit is profit, for ZANU PF the primary pursuit is political power – winning and retaining political power at all costs. As an institution it is built and wired to ensure that it retains power at whatever cost, even if it means in the process, lives, property and livelihoods are destroyed. There is no moral restraint both for the party and those who operate within it. It is morally blind. In its cost-benefit assessment, the loss of liberty, life or property or other rights are necessary sacrifices in order for it to secure power. Those casualties in its path to winning and retaining power are no more than “externalities” to use the language of economics. This makes it easy to implement strategies of violence, such as Gukurahundi in the 1980s, Operation Murambatsvina in 2005, the 2008 election violence and the recent violent clampdowns on citizen demonstrations.
As Bakan says, executives who work for aggressive corporations are not all bad people. They would probably make good neighbours, he says. Yet once they enter the corporation, they are compelled to do what the corporation demands of them – which is primarily to make as much profit as possible. The same can be said of ZANU PF politicians, except that the primary pursuit is political power. This is why they can move effortlessly between the private and public personas. They are people you can have drinks with in a private setting, but they become utterly obnoxious and insufferable once they wear their party apparel. When they are beating up a fellow neighbour, they are morally disengaged and have no empathy towards their victim. The pain and injuries they cause are “externalities” –costs borne by others in their party’s psychopathic pursuit of power. They too become indifferent to the suffering of others. They are in a psychopathic state, just like their party.
It is against this background that we must analyse the response and reaction of the key actors to the ZIMDEF scandal. When you analyse the behaviour of ZANU PF politicians they show no remorse or shame but always create some excuse or justification for their improper and illegal conduct. They create labels to sanitise the conduct; to make it look normal. It should not surprise us therefore that in the cases discussed in this article, Minister of Higher Education, Professor Jonathan Moyo who is accused of various acts of corruption has employed “corporate social responsibility” as a label to justify the diversion of public funds to support what are patently party political activities against the terms of the law. This was after he tried, with dismal results, to justify the diversion of public funds by likening himself to Robin Hood, the mythical hero in English folklore, who robbed the wealthy in order to give to the poor. At the same time, he tried to play the victim of a tribal war, casting his pursuers as “tribalists”. These labels – corporate social responsibility, Robin Hood, victim of tribalism – were deliberately created to draw a distance between the actor and the illegality of his conduct or “to normalise the abnormal” – to use a cliché coined by Moyo himself some years ago.
This scandal at ZIMDEF is a good point of analysis, although many other examples from the past could very usefully illustrate the same points.
The ZIMDEF Scandal
The Zimbabwe Manpower Development Fund (ZIMDEF) is a fund established in terms of the Manpower Planning and Development Act (Chapter 28:02) and is administered by the Ministry of Higher and Tertiary Education. The current Minister is Professor Jonathan Moyo and his deputy is Godfrey Gandawa. The principal source of funding for ZIMDEF is a 1% training levy which is calculated from the gross wage bill of employers under section 53 of the Act. It also derives funding from interest earned from the fund’s short-term investments and from rentals of its properties. The Minister of Higher and Tertiary Education is the trustee of ZIMDEF. This means the Minister carries important fiduciary obligations which include prohibitions against conflicts of interest or deriving personal profits from the fund to which he is entrusted. ZIMDEF is usually used to support students on industrial attachment and apprentices, among other purposes.
Recent reports have exposed egregious abuses of the fund allegedly by the Minister and his deputy and related parties. The Zimbabwe Anti-Corruption Commission is investigating the matters and a number of allegations have been levelled against the Ministers. The Chief Executive Officer of ZIMDEF has also been answering allegations of corruption involving the fund.
Bicycles for chiefs
In one case, Moyo is alleged to have used funds to purchase bicycles for traditional leaders in his Tsholotsho constituency. He did not dispute this, arguing instead that his Cabinet peers have also used state funds to construct roads to their farms. He has also claimed that the investigation is motivated by tribalism.
Million man march
In another case, ZIMDEF funds were used to support the million man march, a political procession held by ZANU PF in May 2016 as a response to the march that had been held by the MDC protesting against Mugabe. The million man march was dubbed as a show of solidarity with Mugabe. Documents show that a media company called AB Communications received $181 633,43 from ZIMDEF under the guise that it was for STEM, a government programme, when in fact it was meant for the party event. In a letter from Gandawa to Moyo, he said “You shall note that while the invoices read STEM, the payment was in actual fact for the million man march. The total cost through AB Communications was $181 633,43”.
Rushinga rally
According to a report in Newsday, Moyo’s Ministry also funded Grace Mugabe’s political rally in Rushinga in 2015.
Moyo is reported to have written to Mugabe’s chief secretary, “As you may be aware that we got a request on October 13, 2015 from the national political commissar (Saviour Kasukuwere) to support the First Lady’s Rushinga rally with computers and logistics for the women’s league and the youth to participate, the rally was to take place within 24 hours and put extreme pressure on the processing of the requirements”.
War veterans rally
In a fourth case, $79 175,43 was paid to AB Communications to support a meeting held by a group of war veterans who were showing solidarity with Mugabe, after another group had issued a communique which was highly critical of his leadership. This payment was allegedly to support a multimedia campaign by AB Communications. However, it was disguised as a payment for the STEM programme. The letter from Gandawa to Moyo says, “AB Communications further ran the multimedia campaign for the meeting of war veterans with His Excellency the President after the communiqué, which sought to undermine the authority of the President. The total expenditure for the war veterans meeting was $79 175,43. Please note that while the AB Communications invoices state Stem, it is the multimedia for the war veterans meeting.”
These two transactions were clearly falsely and fraudulently misrepresented as supporting government programs when in fact they were party programs. In both cases, Moyo and Gandawa, the Minister and his Deputy are trying to justify their actions in regard to the disbursement of ZIMDEF funds on the basis that they were benefitting the party and the President. The Ministers know that they misapplied ZIMDEF funds but their defence is that what they did was normal because that is what ZANU PF does – it uses public funds to support party programs. In their view, they have done nothing wrong. Their argument is that they are being targeted by their political rivals within ZANU PF. The unlawfulness of their conduct in terms of the country’s laws is not a concern to them. In recent days, realizing the party defence does not absolve them from criminal conduct, Moyo has reconstructed the argument by saying the payments for the million man march and the war veterans meeting were part of ZIMDEF’s “corporate social responsibility” – an incredibly disingenuous claim by any account. In fact, in trying to explain away the problem, his defence of corporate social responsibility amounts to a confession of laundering dirty money. One cannot misuse public funds and then try to clean the act by labelling it as “corporate social responsibility”.
Significantly, AB Communications is a multi-media company in which another Cabinet Minister Supa Mandiwanzira, who is the ICT Minister has a beneficial interest. If the documents exchanged between Moyo and Gandawa are a correct reflection of the facts, it means AB Communications was used as a conduit for public funds that were illegally drawn from ZIMDEF to fund ZANU PF activities. The company would be an accessory to the fraudulent transactions. The implication of Gandawa’s correspondence is that AB Communications raised invoices purporting to be doing services on a government programme (STEM), when in fact it was providing services for a ZANU PF programme.
Fuzzy Technologies
The most blatant cases of corruption took placevia the agency of a company called Fuzzy Technologies, which is owned by Gandawa, the deputy Minister. The general dealings of this company are as fuzzy and dodgy as its name suggests. It would seem most of the transactions were carried out through this shady company, which appears to have been set up principally as a conduit for receving money from ZIMDEF for onward distribution to beneficiaries. According to ZACC, its accounts show that all its deposits came from ZIMDEF and that huge amounts were subsequently transferred to personal accounts or to fund personal projects. Fuzzy Technologies not only received public funds from ZIMDEF, but it also entered into transactions with the parent Ministry. When the Ministry wanted to procure goods, it engaged Fuzzy Technologies the conflict of interest occasioned by the fact that it’s owned by the deputy Minister notwithstanding. Furthermore, Fuzzy Technologies was handpicked for those contracts without going to tender, as state procurement laws demand. On occasions, it is alleged that goods were imported by Fuzzy Technologies in the name of the Ministry and were subsequently sold to the Ministry. This enabled the company to avoid paying import duties and earn vast profits from the patently criminal enterprise.
In a letter allegedly written to Mugabe, Moyo allegedly admitted to what he referred to as “judgmental errors”: “I wish to place on record the fact that the implementation of the support given to the women and youth programmes had some shortcomings that had to be rectified in order to avoid them in the future. The shortcomings arose from judgmental errors … For example, while I understand the reason why the deputy minister, Gandawa, had to use Fuzzy Technologies in a number of key and sensitive transactions, the fact that he owns this company should have disqualified it to avoid misunderstandings such as have arisen. But this was due to the nature of the task at hand.”
Clearly, Moyo was aware that there were conflicts of interest. Gandawa used his own company to benefit from public funds and from the transactions with his own Ministry – a clear conflict of interest. Fuzzy Technologies was no more than a money-laundering vehicle designed to siphon and clean funds from ZIMDEF under the guise of commercial transactions for personal enrichment.
Youth Council and Youth League
The fourth case involves the Zimbabwe Youth Council (ZYC) and fuel provided to the ZANU PF Youth League using ZIMDEF funds. The ZYC is a public body formed under the Zimbabwe Youth Council Act (Chapter 25:19). It falls under the Ministry of Youth Indigenisation and Empowerment, headed by Patrick Zhuwao. In a statement which was more self-incriminating than explanatory, the ZYC confirmed that it received 100,000 litres of fuel from the Ministry of Higher and Tertiary Education which it called a “donation”. The purpose of this fuel was allegedly to support a“youth skills mapping exercise” which was a facilitation on behalf of “an exercise being undertaken by one of the Youth Council’s affiliate organisations, the ZANU PF Youth League”.
In short, the ZYC was the instrument through which public funds were transferred from ZIMDEF to the ZANU PF Youth League. This is a facility that was disguised as a legitimate transaction to support the so-called “skills mapping exercise” whereas in fact this is the government using public funds to support a political party’s programmes. The ZANU PF Youth League is a key arm of ZANU PF and this is a transaction in which the government is secretly supporting a political party in violation of the country’s Constitution and the Political Parties (Financing) Act. The Political Parties (Financing) Act has a formula that is used to disburse public funds to political parties, based on the level of representation in parliament. However, this and other transactions are clear evidence that ZANU PF has been receiving significant financial support from the government and that these transactions have been disguised fraudulently. This much is confirmed by the ZYC’s public statement which states,
“This support rendered to the Youth League is not the only support that has been given to the Youth League by government departments. Over the years, the 21st February Movement, a Youth League program meant to instil values of patriotism, discipline and commitment has received support from many departments in government and there is no single investigation that has been conducted on those government departments”.
This statement demonstrates that ZANU PF has been receiving financial support from the government and that as far as public officers are concerned, everything is proper as long as public funds are being distributed to ZANU PF. The arrogance and impunity with which it is stated shows that within the system, there is no moral or legal restraint whatsoever to the abuse of public funds. The end justifies the means and in this case the end of ZANU PF’s retention of political power. The abuse of public funds is an externality – a cost that is carried by the taxpayer.
Moral disengagement
The overall point in all this is that ZIMDEF funds were used to fund ZANU PF activities and that some funds were diverted to personal use under the guise of supporting the party. The attempt to dress them up as “national activities” is both disingenuous and dishonest.
Quite apart from the fact that using public funds to finance ZANU PF’s activities is unconstitutional and unlawful, it is also clear that the party is used as an avenue to siphon and launder stolen public funds for personal use. This happens where public funds are transmitted through ZANU PF organs or other organisations purportedly on behalf of ZANU PF to the personal accounts of individuals. Take for example, Gandiwa’s alleged assertion that Mandiwanzira’s AB Communications was paid nearly $300,000 for so-called multi-media activities on behalf of the ZANU PF million-man march and the war veterans’ meeting. This means public funds were illegally paid into ZANU PF through AB Communications for services rendered to the party. It amounts to illegal political funding because ZANU PF should have paid for those services itself, not government. Another example is where Godfrey Gandawa, Moyo’s deputy drew money from ZIMDEF and used his own company to procure equipment which he then sold to the Ministry. The money illegally received from ZIMDEF is disguised as a proceeds of a legitimate transaction after selling the equipment to the Ministry.
Yet, so far, there is no indication that any of the Ministers or public officials involved in these current scandals will either resign or be fired. If anything, they are stridently defending their actions and accusing the investigating authorities of political persecution. They are not ashamed of what they have done. Instead, they do not believe they did anything wrong. There is no remorse or regret. They are completely morally disengaged. For them, the things they have done are normal things within ZANU PF culture where there is a conflation between the party and the state. The system allows it. Any problems arising are regarded as externalities. In other words, they are acceptable costs in the enterprise of winning and keeping political power. Moyo and company expect to be applauded by the party and government, instead of being prosecuted. And it is very likely that they will get away with it, as others have done before them. The next section explains why.
What does the law say?
The conduct of Ministers and public officers in relation to ZIMDEF constitutes a serious violation of the Constitution of Zimbabwe. The efforts at justifying this conduct on the basis that public funds were used to fund ZANU PF activities is actually damning evidence of abuse of public funds and violation of the Constitution. Yet despite these illegalities, the cases will ultimately fail because those pursuing them are not doing so in the interests of law but they are motivated by their political interests. Naturally, those being pursued are defending themselves not on the basis of law, where they would surely fail, but on the basis of politics, where they are able to draw on a higher power. Although the legal route looks futile, I will analyse it anyway, in the interests of clarifying the legal position on the illegality of the Ministers’ and public officers’ conduct.
Conflicts of Interest
The first point is that the Ministers involved in these activities are in breach of the “No conflicts rule”, which appears in more than one provision of the Constitution.
Section 106(2) of the Constitution prohibits Ministers and Deputy Ministers from acting “in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”. It also prohibits them from using “their position, or any information entrusted to them, to enrich themselves or improperly benefit any other person.”
Section 196(2) of the Constitution provides that “Public officers must conduct themselves, in public and private life, so as to avoid any conflict between their personal interests and their public or official duties, and to abstain from any conduct that demeans their office.”
These rules are designed to prevent Ministers and Deputy Ministers and all public officers generally from exposing themselves to situations where their personal interests may come into conflict with their public duties. They are also designed to prevent Ministers and public officers from using their official positions to enrich themselves or improperly benefit any other person. This is because where there is such a conflict of interest, Ministers and public officers are likely to prioritise their interests ahead of the public interest. I suggested these rules, drawing from my own experience as a teacher of company law. These cases we are witnessing are precisely the reason why those rules were included in the Constitution.
In the case involving ZIMDEF, some of the information so far presented by the media suggests that public funds were paid into personal accounts of Ministers and their companies. In particular, Gandawa’s company received funds from ZIMDEF, which were used for improper transactions. The fact that this situation was improper is beyond question. The fact that some funds were paid from ZIMDEF to render services to ZANU PF through AB Communications, another company in which another Minister, Supa Mandiwanzira has an interest, is another case of potential conflict of interest. The purchase of bicycles for chiefs using ZIMDEF funds is another improper benefit to a third party using public funds where the Minister has a political interest that being his constituency.
The argument being advanced that the public funds were used to support ZANU PF activities does not absolve the Ministers from their breach of the Constitution because clearly ZIMDEF funds should never have been disbursed in order to support a political party’s activities. There is a law which deals with financing of political parties and using ZIMDEF funds to support ZANU PF is clearly illegal. The opposition political parties have every right to take legal action to challenge the illegal funding of ZANU PF in violation of the Political Parties (Financing) Act. In short, it is not a defence, but an indictment that ZIMDEF funds were used to support ZANU PF activities. There can be no doubt that the Ministers involved are in breach of both section 106(2) and 196(2) of the Constitution. These breaches mean the Ministers are not fit and proper to hold public office. If the President does nothing about it, citizens should take legal action asking the courts to declare breaches of these provisions – the Ministers are not denying what they did, they are merely trying to justify them.
Safeguarding public funds
Chapter 17 of the Constitution deals with the management of public funds and contains important provisions dealing with public funds and public property. Section 298(1) (d) provides that: “public funds must be expended transparently, prudently, economically and effectively”. The manner in which ZIMDEF funds have been expended meets none of that criteria.
Part 4 of Chapter 17 specifically deals with the safeguarding of public funds and public property. Section 308(2) states that: “It is the duty of every person who is responsible for the expenditure of public funds to safeguard the funds and ensure that they are spent only on legally authorised purposes and in legally authorised amounts”.
In the case of ZIMDEF, both Moyo and Gandawa had a duty to ensure that the funds were used only for legally authorised purposes. They have not disputed the fact that funds from ZIMDEF were used to fund the activities of ZANU PF. Instead, they have tried to justify their conduct on the basis that the funds were used to support party activities and that this was what other Ministers have done before. Indeed, the director of the Zimbabwe Youth Council, Livingstone Dzikira has also used the same line of reasoning, arguing that the 100,000 litres of fuel his organisation received from ZIMDEF was given to the ZANU PF Youth League. This is not the purpose to which ZIMDEF is legally authorised to serve.
Furthermore, section 308(3) provides that “It is the duty of every person who has custody or control of public property to safeguard the property and ensure that it is not lost, destroyed, damaged, misapplied or misused.”This is another duty that the Ministers and public officers have clearly breached in respect of ZIMDEF. It prohibits the misapplication and misuse of public funds, but by all accounts the uses to which ZIMDEF funds, from buying bicycles for chiefs to funding the million man march, were misapplications and misuses of public funds. In the case of Fuzzy Technologies and other personal payments, the misuse and misapplication is of a criminal nature warranting prosecution.
The Constitution requires that those who breach these provisions must be disciplined and punished and action to be taken for the recovery of misappropriated funds or property. It is therefore necessary to explore ways by which the culprits in these scandals are not only punished but that the misused and misappropriated funds be recovered. In order to do that, however, it is important to ensure there is proper investigation, gathering of facts and proper preparation of both civil and criminal actions against transgressors. The danger is that those carrying out the investigations are motivated more by a political agenda, than by an agenda to deal with corruption and abuse of public funds. By moving hastily, they will be reckless and otherwise easy cases are made more complicated and weak in a court of law.
Special Audit
One way is to get the Auditor General to carry out a full audit of ZIMDEF in light of the current revelations. One of the AG’s functions under section 309(2)(b) is “to carry out special audits of accounts of any statutory body or government-controlled entity” at the request of Government. The AG also has the power to “to order the taking of measures to rectify any defects in the management and safeguarding of public funds and public property”.Public officers are constitutionally obliged to comply with orders given to them by the AG.
Parliament
Parliament also has the power to summon Moyo and Gandawa to answer questions. Section 107 (2) of the Constitution states as follows:
“Every Vice-President, Minister and Deputy Minister must attend Parliament and parliamentary committees in order to answer questions concerning matters for which he or she is collectively or individually responsible”.
This is a mandatory obligation. Once called, both Moyo and Gandawa have no choice but to attend. Likewise any other Minister or public official who is implicated must be called. Parliament has this power and must not shy away from using it. Section 117(2) gives Parliament power to ensure that “the State and all institutions and agencies of government at every level act constitutionally and in the national interest.” All institutions and agencies of the State and government are accountable to Parliament.
Zimbabwe Anti-Corruption Commission
The Zimbabwe Anti-Corruption Commission (ZACC) is the constitutional organ that has the special mandate to combat corruption. Normatively, the ZACC is an independent commission which operates without external direction. However, in reality, it is a highly compromised institution which ironically, has in the past succumbed to corruption. A former head of the ZACC is currently in jail after stealing public funds. Others have been under investigation for similar corruption related offences.
The structural organisation of ZACC has also diluted its authority and independence. This year it was announced that it had been relocated to the Office of the President and Cabinet (OPC), from where it is operating. Far from helping its cause, this relocation actually subjects the ZACC to the most powerful office in the land, which is the executive. ZACC is supposed to be the watchdog of all other entities, including the OPC, which is the head of the executive arm of the state. It is hardly surprising that while the Constitution provides for an independent ZACC, current reports indicate that it is being blocked from carrying out its work where Ministers are involved in corruption. Vice President Mphoko is on record stating that Ministers cannot be arrested without the approval of the Head of State, which of course is completely at odds with the Constitution which provides that every person is equal under the law.
Does ZACC have the power of arrest?
ZACC has a number of powers including, naturally, the power to investigate cases of corruption and to refer them to the prosecuting authorities for prosecution. A question that has arisen is whether ZACC has the powers of arrest. The provisions of the Constitution are open wide to interpretation. A wide interpretation of section 255 of the Constitution would be that ZEC has the powers of arrest because such powers are necessary and incidental to the broader mandate to combat corruption. This is so in light of section 342(2) which provides that “All institutions established by this Constitution have all powers necessary for them to fulfil their objectives and exercise their functions” and section 342(3) which says “Where a power, jurisdiction or right is conferred by this Constitution, any other powers or rights that are reasonably necessary or incidental to its exercise are impliedly conferred as well.” A broad interpretation of section 255 as read with these provisions would also imply that the ZACC does have powers of arrest, particularly where the police fail or refuse to do so for no good reason.
However, there is a narrower interpretation, which is consistent with my recollection of the intentions of the framers’ of the Constitution. There was a big argument over whether ZACC should have powers of arrest. One argument was that giving ZACC powers of arrest could undermine the police service. It was an unreasonable argument given that the ZACC already had a special mandate to deal with matters of corruption and that could not be regarded as undermining the police service. Nevertheless, a compromise was reached to the effect that ZACC could have powers to “recommend” the arrest of suspects. Section 255(3) states that, “The Government must ensure, through legislative and other means, that the Zimbabwe Anti-Corruption Commission has power to recommend the arrest and secure the prosecution of persons reasonably suspected of corruption, abuse of power and other improper conduct which falls within the Commission’s jurisdiction”. What this means is the most that ZACC can do, provided the legislation is in place, is to “recommend the arrest” of persons suspected of corruption offences.
The existence of these two interpretations means is there is need for judicial intervention to resolve the question as to whether ZACC has the legal power to arrest suspects. The irony is that previously when the ZACC arrested Bernard Manyenyeni, the Mayor of Harare, Ministers like Professor Jonathan Moyo stridently defended the actions of the state. Moyo was even the acting Minister of Local Government at the time and did not see anything wrong with what ZACC had done. Now however, it is Moyo who is being pursued by ZACC and he has been arguing that ZACC does not have the power to arrest him. Rather amusingly, he is now describing Manyenyeni’s arrest as “illegal”.
ZACC’S power over the police
One power that ZACC certainly has without question is the power to direct the police to carry out investigations in corruption matters. Section 255(1)(e.) provides that the ZACC has the power “to direct the Commissioner-General of Police to investigate cases of suspected corruption and to report to the Commission on the results of any such investigation”. This must be read along with section 255(2) which requires the Commissioner-General of Police to comply with the direction. It states, “The Commissioner-General of Police must comply with any directive given to him or her by the Zimbabwe Anti-Corruption Commission …”. Furthermore, section 255(1)(g) provides that the ZACC can call on “assistance from members of the Police Service and other investigative agencies of the State”.
The effect of these provisions is that ZACC has important leverage over the police service. The ZACC can direct the police to carry out investigations. In the present cases involving ZIMDEF, the question is, why has ZACC not exercised these powers? If they have, why have the police not taken any visible action in relation to the matters? Have the police been reluctant to act? Constitutionally, the police are obliged to obey the direction from ZACC. It is ridiculous to claim that Moyo is in hiding when the police have powers to apply for a warrant of arrest if a suspect is not showing up after being called.
What has been happening instead is that ZACC has been prosecuting its case through the media. The press conference by one of the ZACC commissioners, Goodson Nguni where he laid out full details of the case against Moyo and company was more like a prosecutor making his case in the court of public opinion than a mere clarification. But corruption cases are not won or lost in the court of public opinion. They are fought in courts of law and a body like ZACC should know that. The argument that ZACC was trying to clarifying misleading reports by the accused is weak. The appropriate forum to give the kind of detail revealed at the press conference is a court of law. In fact, the manner in which ZACC is handling the matter could actually end up jeopardising it.
Flailing ZACC
Why then is ZACC zealously prosecuting its case in the court of public opinion? One explanation could be that it has since realised that it might never get its day in court, due to political interference from the executive. Already there are reports that President Mugabe averted the arrest of Moyo by ZACC and the police. Mphoko took it further when he argued that Ministers could only be arrested with Mugabe’s approval, although this was later dismissed by his co-Vice President Emmerson Mnangagwa who pointed out in a separate speech that no one is above the law. It would seem ZACC is in a cul-de-sac, unable to move its case beyond its current investigations and has now resorted to naming and shaming the suspects in the court of public opinion. The lashing out is a sign of frustration by ZACC. They seem to have a solid case and they do not need to play to the public gallery like they are doing.
However, the behaviour of ZACC is also consistent with the political character of the whole anti-corruption enterprise in Zimbabwe. It has never really been treated as a legal matter. Save in a few cases involving minor figures, the anti-corruption drive has been a highly politicised affair. When Moyo complains that he is being politically targeted, he is not wrong because he knows that he too has been part of the same system that has targeted fellow politicians using the anti-corruption drive. Two years ago, he was at the forefront of the anti-corruption drive, targeting former Vice President Joice Mujuru and her allies. It prompted Mujuru to argue that the anti-corruption drive was being used by her political opponents to destroy the party from within, a remark which attracted criticism from Moyo and others. When Themba Mliswa complained in 2014, Moyo retorted by telling Mliswa to “carry your cross” and stop using the party to defend himself against corruption. Now, however, Moyo is using precisely the same line of defence that he criticised then, trying to justify the misuse and abuse of public funds on the grounds that he was doing it for the party. He quite incredibly also argues that the use of ZIMDEF funds to support the various party activities was part of ZIMDEF’s “corporate social responsibility”. The Herald responded by re-printing the 2014 article in which he told Mliswa to “carry your cross” and stop abusing the party.
As Moyo and his allies have rightly pointed out, what they did with ZIMDEF funds is hardly new or unique in ZANU PF. The majority of government Ministers and officials have probably done the same. This is how the system operates. The state and the party are conflated – resources are shared and there is nothing unusual in their world for a Minister to use state resources to fund or promote the party. When Zimbabwe got a loan from Brazil, Grace Mugabe went around distributing the goods at her rallies around Zimbabwe. They all defended her even though she has no official mandate to handle or distribute public funds or property. Keen observers of Zimbabwean politics know that the pursuit of Moyo has very little to do with the law or commitment to fight corruption, but is highly political. It’s a way of out-casting Moyo from the ZANU PF political scene in the context of the presidential succession race. He just happens to the latest targeted figure. It could have been anyone, indeed, it could be anyone next and if Moyo survives this, as seems likely, he will not hesitate to use the very same strategy against his political opponents.
The end result is that all of this is really a political charade. It is nothing to do with serious intentions to fight corruption. That is not to say the case against Moyo and company is weak. On the contrary, there is abundant evidence that public funds were abused, misused and misappropriated. There is abundant evidence of corrupt practices and money laundering. But in ZANU PF, what Moyo and company have done is normal. It is abnormal and outrageous to ordinary people, but within ZANU PF it is quite normal and acceptable. This is why Moyo and company are not showing any shame or remorse at all. Their spirited defence is not against alleged legal crimes, but against the political persecution they are facing via the agency of ZACC and the law. This is why any serious hopes that ZANU PF will solve the problem of corruption are misplaced. It is so morally disengaged that the only thing that matters is retention of political power, whatever the cost to the nation.
The decision to form a ZANU PF commission to investigate ZACC is not only the most blatant assault on ZACC’s independence but a supreme example of how ZANU PF has conflated the party and the state. It is also because of this conflation between the state and the party that it is easy for ZANU PF politicians to move seamlessly between each. For Moyo and other ZANU PF politicians, using government resources to support ZANU PF is not a problem at all because the state and ZANU PF are one. But the creation of a ZANU PF committee also confirms the idea of the party and ZANU PF operating as one broad family. There is no legal mandate whatsoever for a ZANU PF committee to investigate or interfere in the activities of ZACC. If ZACC has any self-respect, it should resist that investigation because it is not an organ of ZANU PF. Apart from that, citizens should seek an interdict to stop the ZANU PF Politburo from interfering with the work of ZACC.
Private prosecution?
This has been raised by citizens clearly inspired by the successful private prosecution of Munyaradzi Kereke. Nevertheless, most people are unaware that the law was changed and it is no longer easy to launch private prosecution. In any event the hurdles to be passed are high and there has to be evidence that the prosecuting authority declined to prosecute, which is not the case at present because the prosecution authorities are not seized with the matter.
Conclusion
I have suggested various legal actions in this article. But I am also mindful of my warning a few weeks ago regarding the limits of law. The apparent failure by ZACC and the police to move ahead so far in this case is also indicative of the limits of law, particularly when it is in the hands of those who are not keen to enforce it. I have articulated in this article the constitutional rules that were broken and that is good enough to pursue action against the Ministers and public officers. However, the system is crooked and it cannot be trusted to do a proper job. In any event, the case is compromised by its politicisation. The pursuers seem to be more motivated by the political interests and are looking for political results rather than legal outcomes for the sake of enforcing the law. It is not surprising that the pursued have also resorted to the court of politics, because they realise that this is a political dog-fight. At the end of the day it is not the strength of the legal case that will determine the outcome, but the balance of political power between the pursuers and the pursued.
But we have also observed how ZANU PF is a psychopathic creature. It pursues its interests relentlessly without any regard for others. Any casualties along the way are mere externalities. Its politicians are driven by similar forces. They are indifferent to the feelings of others or to their suffering. What is plain theft and abuse of public resources is normal and justifiable to them. This applies to the great majority of senior leaders but is more vividly illustrated by the behaviour and utterances of the politicians involved in the ZIMDEF scandal. After all is said and done, the ZIMDEF scandal provides an important illustration of the enormity of the challenges that Zimbabwe faces even in a post-Mugabe era. It is a legacy of corruption, arrogance and psychopathic politics where the party and its key actors are emotionally disconnected and completely indifferent. They operate in a different universe from the rest of normal society.
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