ZIMBABWEANS are excited about creating a scandal out the Drax SAGL issue calling it the #CovidGate.
Here is Delish Nguwaya charge sheet.
Sadly, there is no criminal case in this emotional prosecution.
But let’s get the trivialities out of the way: Delish seems to have pending cases before the courts as stated on the charge sheet.
He was a CIO informer after being charged for extortion in a matter where ZRP officers clashed with Kizito Gweshe in 2017. It went to the Constitutional Court.
The Drax matter was first reported by Mduduzi Mathuthu in May 2020, and picked up by Elias Mambo. As newsmen, they were newsmaking, and soon noisemakers joined in.
When I looked at the matter, my question was, what is the crime? Nobody had a decent answer in the crescendo of voices.
ZRP charged Nguwaya for fraud. Apparently, he misled the government. If this charge sounds silly, it’s because it is. Drax did not defraud the government based on the reported facts. It was contracted to supply and it did.
The fact that Drax was registered this year or last year cannot be a crime. That is for the government to solve through procedure that eliminates from consideration young companies.
All Nguwaya needs to do is to get a good lawyer and he will walk. Hapana nyaya (end of story).
WHY IS IT PROBLEMATIC FOR GVT TO USE PROCEDURE TO RESTRICT COMPANIES?
If the government today says we will only consider companies that are 3 years or older, that will be a serious problem for entrepreneurs who want to start companies and do business with government, including youths.
Elias Mambo opines that the President’s Office produced a report flagging Drax and that can be a basis for prosecution.
But the report from CIO is simply a risk management report to say beware of this risk. As it turned out, Drax fulfilled its supplies to NatPharm. So, the supply risk for Drax falls away.
Should the police even be charging Nguwaya himself? As who? Director of the company? Representative of the company? Did anyone pierce the corporate veil? Did the gvt deal with a natural person? No.
It contracted a company.
What is clear is the state has simply responded to public noise. The prosecution will fail and Nguwaya will walk then Zimbabwe won’t be any better for it.
I predict noisemakers will shout catch-release, but fact is hapana crime apa. (There is no crime here.)
Some have argued that Nguwaya should be charged for over-pricing.
Again that is emotional prosecution that goes nowhere. It’s not a crime to charge the price you want for your products, unless there are price controls. We know there were no price controls. So hapana hapana.
SO IF NGUWAYA DIDN’T DEFRAUD, WHO SHOULD BE CHARGED?
Elias Mambo opines that Health and Child Care Minister Obadiah Moyo should be charged and prosecuted.
The question is prosecuted for what?Mambo argues – prosecute him for criminal abuse of office.
CHARGING OBADIAH MOYO FOR CRIMINAL ABUSE OF OFFICE.
Again this will be a waste of time. It’s a charge that would stick only if anyone had proof that he was paid a bribe or benefitted from the transactions.
Based on information available, such evidence doesn’t exist.
To jail someone, the prosecution must prove beyond reasonable doubt that the accused committed an offense of fraud or criminal abuse of office.
Let’s go into detail on this issue. Remember the courts will ignore all the social media noise when hearing such a case.
Criminal Abuse of Office (CAOO) is defined in s174 of the criminal code (Ch 9.23). For CAOO charge to stick, it must meet these elements:
- accused must be a public officer
- must have engaged in conduct inconsistent with duty as public officer
- must act intentionally in omission or commission
- conduct must be to show favour/disfavor to another.
Recent judgments by Justices Tsanga and Chitapi in the cases of State v Taranhike & Others, as well as Saviour Kasukuwere v State, Mujaya & Macharaga, respectively cover this.
Tsanga’s judgment goes into detail on the issues. See judgment here: zimlii.org/node/8862.
So it’s not enough to just say a public officer criminally abused office, the evidence must show favour/disfavor and intentional abuse.
The abuse must be willful neglect, and there must be absense of an honest attempt in doing public office functions.
The judge went further to say that even if an act violated another statute you don’t need to apply a rigid test especially if it’s not out of a wanton desire to flout the law. This same argument could be applied to purchases done under pandemic conditions as in this case.
The criminal abuse of duty charge was reviewed by Chitapi J in Saviour Kasukuwere’s case.
Tyson (Kasukuwere) was accused of corruptly doling our land by instructing the Permanent Secretary and other officials. He was also charged with giving Brainworks Capital a contract outside tender procedures. You can read the judgment on review of the case here.
Prosecuting corruption hazvisi zvekungomukira mongoti batai uyo neuyo because people were throwing tantrums on social media, or posted this or that invoice. Judges will do a thorough job and dismiss these cases.
Emotional prosecutions are not effective ways of fighting graft. – Matigary
