State-owned companies in Zimbabwe have a record of corruption. With near total impunity, senior management of state-owned entities has openly plundered public entities.
If you read the local newspaper any day, chances are you will read a story on corruption involving an executive of a state-owned company. Unscrupulous executives of parastatals often rely on politicians for protection.
The latter have disrupted efforts to reform public entities and make them accountable. In particular, the lack of interest by the executive to initiate laws to address corruption itself spoke to the success of politicians in protecting their cronies who looted state-owned companies.
The executive has consistently failed to oversee or regulate the corrupt practices of state-owned companies. The only way forward is to change this. This is what one man and his lawyer have sought.
Allan Markham has brought a case against the executive to a fiercely counter-majoritarian court known for its reputation of throwing out public litigation cases. The case is Allan Norman Markham vs Minister of Justice, Legal and Parliamentary Affairs and Attorney General of Zimbabwe.
Markham is an opposition MP. In parliament he sits in the public accounts committee, which is mandated to be the watchdog of the republic’s purse and resources.
Markham is also a human rights activist, who has been involved in cutting edge strategic human rights litigation which aims at upholding the rule of law, democracy and financial accountability. His lawyer, Tendai Biti, a former minister of finance, has already achieved remarkable and unprecedented success with impact litigation.
Markham approached the court arguing that in the course of conducting his parliamentary duties he has “been exposed, to the rot that exists” in the state-owned enterprises, “wholly riddled with corruption”. He made reference to authoritative investigations into the affairs of state-owned companies by the auditor general, who presented them to parliament annually, exposing corruption within. This is one of the reasons that has led the country to fail dismally “to realise its optimum potential, for the growth and development of its own citizens” asserted Markham.
The crux of his case was that corruption in Zimbabwe is dire because there are no “adequate, legislative tools of combating corruption, or tools that keep those in positions of authority, in state institutions fully accountable, hence the need to actualize the Constitution for it serves this particular purpose”. Specifically, section 198(a) of the Constitution of Zimbabwe says that parliament must provide measures to pass an Act requiring public officers to make regular disclosures of their assets.
Markham sought a mandamus – an order against the respondents – to fulfil their constitutional obligation in terms of the aforementioned section 198 of the Constitution, which compels the executive to prepare the draft Bill that provides measures requiring public officials to make regular disclosures of their assets.
In its judgment passed two years after the case was launched, the court granted an order in favour of Markham. The court ordered that: 1. The first respondent’s failure to formulate within a reasonable time a Bill to give effect to the Act envisaged in section 198 (a) of the Constitution of Zimbabwe is in breach of its Constitutional mandate. 2. The first respondent is ordered to gazette the Bill envisaged by section 198 (a) of the Constitution of Zimbabwe within three months from the date the court passed the order.
Constitutions and anti-corruption
Transparency International has long since pointed out that “the constitutional design of a country can make or break its fight against corruption (2013)”. The issue, however, is that “governments must ensure that what is promised and committed to on paper becomes reality”.
Particularly so, in Zimbabwe where the new Constitution of 2013 is a product of important compromises over key democracy and good governance issues between those who were vested in maintaining the status quo and those who were fighting for a change.
Politics aside, there are more than a dozen provisions in the Constitution designed to curb corruption. The case points out one of them requiring public officers to make regular disclosures of their assets. The requirement for public officials to disclose their assets and interests is a relatively modern trend.
While it was initially thought to be a violation of the right to privacy, the approach to asset and interest disclosure has been changing gradually, influenced by decisions of international human rights bodies and growing concerns for integrity in public administration (See Open-ended Working Group on the Prevention of Corruption 2018:14). The framers of the Constitution were probably influenced by international conventions such as the United Nations Convention Against Corruption, article 8 paragraph 5.
It has, however, not gone unnoticed that the fight against corruption has highly political undertones. Precisely that there is a secret relationship between law and corruption. Anthropologists Gerhard Anders and Monique Nuijten have argued in their book, Corruption and the Secret of Law, that the “debate about corruption is shaped by thinking in binary oppositions: corruption and the law are seen as each other’s opposite”.
They further warned against “taking the legal system of the nation-state as the standard against which practices are judged as corrupt or not corrupt [because] in many situations the state apparatus itself seems to be implicated in and endorse corruption”.
As Markham has correctly pointed out in his application, the only law that has dealt with the need of public officials, to declare their assets — the Public Entities and Corporate Governance Act is designed to narrowly apply to a specific group of persons, which excludes all other officials within the public service, thus making it inadequate.
What then is the impact of the case?
This is a classic case of radical lawyering. The conventional understanding of the concept of separation of powers between the three arms of the state that the judiciary cannot interfere with decisions of the cabinet (the executive), such as the decision to initiate law and policy has been disrupted. Then again, the concept of separation of powers is in and of itself a critical safeguard against corruption, according to Transparency International.
Politicians all around the world in low-governed countries cannot or will not provide enough oversight or regulation of corruption. The trend is only increasing, says Transparency International’s 2021 Corruption Perception Index. If the executive is not going to exercise their mandate to play oversight of the state-owned enterprises, they need to get the push from somewhere else.
Looking forward, this case will probably influence similar requests for the parliament to address the shortfalls in the extant legislation on anti-corruption, which need to be aligned with the Constitution to curb corruption that has become institutionalised and embedded in the wider matrix of power relations in Zimbabwe. Yet much depends on whether the executive will respect the court’s judgment.
This article is dedicated in memory of my anti-corruption teacher, Professor Raymond Anthony Koen, of the University of the Western Cape, who died this week.
Prosper S Maguchu (CAMS), is an assistant professor of law and projects manager at the Vrije Universiteit Amsterdam specialising in financial crimes and international asset recovery from a human rights-based approach. He writes in his personal capacity. This was first published here by the Mail & Guardian