THE Criminal Law (Codification and Reform) Amendment Bill which was published in the Government Gazette on 23 December last year waters down the Act by amending section 174(1), making it easier for public officials to get away with criminal abuse of office, stakeholders in the fight on corruption fear.
Zimbabwe Anti-Corruption Commission commissioners and other stakeholders believe securing convictions will be made harder, given that the amendment will require prosecutors to prove that a public official had knowledge that his or her conduct was illegal.
The amendment provides room for public officials to get away with corruption on the grounds that they made honest mistakes. Zacc commissioner Jessie Majome is among those who have spoken out against the proposed amendment, which she says will weaken the fight against corruption, given that current laws are already weak.
She spoke out against the amendment at an Integrity Summit organised by Accountability Lab last week. Section 174 deals with criminal abuse of duty of public officers.
“At that meeting I raised alarm over the ill-advised and unwarranted attempt to amend by repeal section 174 (1) of the Criminal Codification (Law Reform) Act [Chapter 9:23] (The Code) by Bill H.B.15,22 which is pending before Parliament,” Majome said.
“I commented that the section creates the offence of criminal abuse of duty by a public officer, which is the charge most resorted to by Zacc because of the lack of other useful offences in Zimbabwe’s legislation. I advised the meeting that the proposed amendment seeks to introduce a defence of lack of actual knowledge of the duty by the concerned public officer. I decried how this would further weaken and further blunt the already weak provision and further reduce chances of convictions regarding corruption.
“I also pointed out that it is not good to amend the law purely in order to create a loophole. I remarked that if any amendment is to be made to the Code it should instead broaden the definition of ‘public officer‘ to include officials of parastatals and private companies in which the state holds stake, as they are currently not specifically mentioned by the definition of it in section 169. The courts are letting them off the hook on the basis of that technicality as they interpret them not to be public officers.”
Majome instead called for the improvement of a legislative framework to create more criminal offences of corruption, including the repeal and replacement of the present Anti-Corruption Act by a more robust and constitutionally up to date framework such as that proposed by the Zacc Lay Bill.
Section 174 currently reads:“(1) If a public officer, in the exercise of his or her functions as such, intentionally; (a) does anything that is contrary to or inconsistent with his or her duty as a public officer; or (b) omits to do anything which it is his or her duty as a public officer to do; for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both.
“(2) If it is proved, in any prosecution for criminal abuse of duty as a public officer that a public officer, in breach of his or her duty as such, did or omitted to do anything to the favour or prejudice of any person, it shall be presumed, unless the contrary is proved, that he or she did or omitted to do the thing for the purpose of showing favour or disfavour, as the case may be, to that person.
“(3) For the avoidance of doubt it is declared that the crime of criminal abuse of duty as a public officer is not committed by a public officer who does or omits to do anything in the exercise of his or her functions as such for the purpose of favouring any person on the grounds of race or gender, if the act or omission arises from the implementation by the public officer of any Government policy aimed at the advancement of persons who have been historically disadvantaged by discriminatory laws or practices.”
The section is however amended by the repeal of subsection (1) and the substitution of — “(a) if he or she does anything which he or she knows is contrary to or inconsistent with his or her duty as a public officer; or
“(b) he or she omits to do anything which he or she knows it is his or her duty to do; with the intention of conferring an undue or illegal benefit on someone else or of unfairly or illegally prejudicing someone else, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for a period not exceeding fifteen years or both.” Zacc commissioners say the amendments will make it harder to secure convictions.
Veritas, a lawyer grouping in legal and parliamentary affairs, however believes the move is positive.
“This clause amends section 174(1) of the principal Act. The current framing of the offence of criminal abuse of office as provided for in terms of section 171(1) is very broad in its scope in that it gives room for public officers to be prosecuted for honest mistakes made during the course of their duties. Hence the amendment will limit the crime to include an essential element of knowledge on the part of a public official that his or her conduct was illegal,” Veritas said in a commentary.