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Part 2 Country Case Studies, 10 Endemic Corruption in Zimbabwe: Why are Anti-Corruption Agencies Ineffective?

Tinashe Chigwata

From: Corruption and Constitutionalism in Africa

Edited By: Charles M. Fombad, Nico Steytler

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 26 November 2022

(p. 236) 10  Endemic Corruption in Zimbabwe

Why are Anti-Corruption Agencies Ineffective?

1.  Introduction

Major international indexes on corruption, democracy, and development rank Zimbabwe as one of the most corrupt countries in the world.1 Corruption in the country has become endemic and takes a variety of forms, ranging from petty, bureaucratic, and systemic patronage to grand and political corruption. Abuse of public power or office for private gain is so entrenched it is now generally accepted as a normal part of daily life. It is difficult to separate the nature of corruption in the country from the party-political rule of the Zimbabwe African National Union Patriotic Front (ZANU-PF), which has been in power since independence in 1980. However, corruption is equally rampant in local governments run by the opposition, the Movement for Democratic Change (MDC), which is indicative of the fact that this evil cuts across political boundaries. The private sector is not spared either.

With the economy being suffocated and a culture of constitutionalism yet to develop, the effects of corruption are felt the most keenly by ordinary citizens, especially the poor and marginalized. Poverty is widespread, inequalities continue to widen, and access to quality public services is a privilege reserved only for a few, usually on the basis of political, economic, or social class. Due in part to corruption, the promise of a better life contained in the new Constitution of Zimbabwe2 remains a pipe dream for the majority of ordinary citizens. Zimbabwe nevertheless has a variety of anti-corruption agencies with constitutional and legal backing, which in principle should be able to bring corruption under control. What is worrying, then, is that the incidence of corruption is far from having been contained.

The fall of Robert Mugabe in November 2017 as the leader of the ZANU-PF and government might have brought the much-needed change in the political landscape that can aid the fight against corruption. In his inauguration speech of November 2017, Mugabe’s successor, Emmerson Mnangagwa, announced a policy of zero tolerance of corruption and other ‘indiscipline and misbehaviours’ that characterized Mugabe’s rule.3 He declared that ‘[a]cts of corruption must stop forthwith. Where these occur swift justice must be served to show each and all that crime and other acts of economic sabotage can only guarantee ruin to perpetrators’.4

(p. 237) President Mnangagwa has put his words into action by embarking on an anti-corruption drive of vigour not witnessed in nearly four decades of independence. High-ranking politicians, senior bureaucrats, and businesspeople have been investigated, arrested, and prosecuted in less than a year of his rule. With such political will in evidence, and so unlike the case under Mugabe, doors for a clean government and society remain open, seeing as Zimbabwe has a progressive constitution that provides the foundation necessary for constitutionalism and anti-corruption efforts. Questions can be raised nonetheless about whether the anti-corruption drive is genuine or meant to target political foes, given that those brought to book so far have been persons widely perceived as Mnangagwa’s enemies, but only time will tell.

This chapter examines the evolution of corruption in Zimbabwe, the factors facilitating its spread, its impact, the (in)effectiveness of anti-corruption institutions, and the prospects of bringing corruption under control. Zimbabwe has developed a sound constitutional and legal framework5 which enshrines the major principles of international, continental, and regional anti-corruption instruments. The challenge remains the task of implementing this framework by means of the relevant anti-corruption agencies. The focus of this chapter is thus not on the anti-corruption legislative framework but the anti-corruption agencies. A multisectoral approach involving civil society and other actors is required to confront corruption as endemic as that in Zimbabwe, but merely to limit the scope of this study, the chapter does not deal with civil society initiatives. After providing a brief background to the problem of corruption in Zimbabwe, it describes and evaluates the major anti-corruption institutions. The chapter goes on to examine the key obstacles they face and consider how an enabling environment can be created for them.

2.  The evolution of corruption

2.1  The first decade of independence

At independence in 1980, the ZANU leadership took control of the state, a tool which could be used to address the huge inequalities and developmental challenges attributable to colonialism. This tool was, however, also a major mechanism for private accumulation by the new ruling elites, which had had limited or no access to the economy in the colonial era.6 The signs of an emerging petty bourgeoisie, comprising politicians and senior bureaucrats, became evident just two years into independence. In 1982, the businessman Samson Bernard Paweni bribed officials to obtain a government tender for conveying drought-relief food around the country. Even though he was prosecuted and sentenced to a prison term, public funds of about Z$5 million were not recovered.7

In 1983, students protested against the growing appetite for personal aggrandisement among senior government officials, whom the then Prime Minister, Robert Mugabe, publicly (p. 238) criticized. The officials used state power to redistribute entitlements, jobs, loans, contracts, business licences, and favours.8 At a congress in 1984, the ruling ZANU party adopted a Leadership Code to stamp out increasingly corrupt behaviour in the party and government, particularly so at senior level.9 While significant, the Code seems to have been adopted too late to close the floodgates on corruption, since most of the senior leadership had already acquired substantial wealth through corruption-related activities.10

The congress in 1988 of the ZANU-PF, held a year after the merger of ZANU and the Zimbabwe African People’s Union (ZAPU), reaffirmed both the commitment to a one-party state and the Leadership Code. The implementation of the Code, however, drew fierce resistance from within the party and government. Several high-profile scandals on a larger scale involving the theft or misuse of vast quantities of public resources by public officials—grand corruption11—hit the country around that time.12

The biggest of them was the Willowgate scandal of 1988, which concerned a group of politicians and senior bureaucrats who were buying subsidized cars from a state enterprise, Willowvale Motor Industry, and selling them on the black market. The Sandura Commission, which the President established to inquire into the scandal, found some ministers and senior bureaucrats guilty of corruption. One of the ministers was convicted and given a prison sentence, but pardoned by the President after spending a single night in prison. Corruption charges against other officials were later dropped by the Attorney-General in unclear circumstances.13 The President’s action set a precedent that not only encouraged corruption but made future efforts to combat it ineffective.

2.2  The second decade of independence

The second decade of independence began with the adoption of the economic structural adjustment programme (ESAP) under the auspices of the World Bank and International Monetary Fund. These institutions injected financial resources into government coffers to finance public-sector reforms, with the emphasis on, inter alia, economic liberalization and the reduction of government spending. The reforms—through, for example, financial deregulation—allowed black elites, most of whom had close ties to ZANU-PF, to enter the financial sector and the economy at large. Ncube argues, though, that the privatization and commercialization of state-owned enterprises (SOEs) simply transferred corruption from the public to the private sector.14 Makumbe, writing in 1994, argued that the extent of corruption had not reached the high levels ‘where wrongdoing has become the norm and accepted behaviour necessary to accomplish organisational goals’. He suggested, however, that the ‘predilection certainly existed’; thus it was only a matter of time before Zimbabwean society degenerated into that state of affairs.15

(p. 239) Later developments proved his predictions correct when the number of high-profile corruption cases increased and spread to other sectors between 1995 and 1999.16 During this period, civic groups held mass demonstrations against corruption, which was reflecting a patronage dimension.

2.3  The third decade of independence

A vibrant new party, the MDC, entered the political terrain in 1999, bringing the de facto one-party state to an end.17 With the legitimacy of the ZANU-PF having decreased and the MDC posing a significant threat to its hegemony, the survival of, and loyalty to, the ruling party became the primary consideration in most of the state’s governance processes in the post-2000 period.18 Shana argues that corruption was increasingly justified within ruling-party circles as a necessary political strategy, one in terms of which ‘immoral, criminal and corrupt activities that serve[d] political advantage would be given immunity’.19

Around the same time, the government embarked on the Fast Track Land Reform Programme which, the ZANU-PF argued, would address imbalances between black and white Zimbabweans in the ownership of arable land. The economic and political environment descended into crisis after the introduction of the programme, with massive shortages arising in the availability of resources for public services and administration.20 The crisis was characterized by, among other things, hyperinflation, extreme and deepening poverty, rising inequalities, alleged human rights abuses, poor remuneration of civil servants, and the selective application of the law. The independence of the judiciary—the pillar of the rule of law and constitutionalism at large—was deeply compromised.21 Independent judicial oversight bodies, permeated by patronage politics, could no longer hold the executive accountable.

This chaotic environment led to a widespread increase in petty, or bureaucratic, corruption, in tandem with the grand corruption and patronage politics that were already rife. Several cases were recorded of the externalization of foreign currency by key politicians and businesspeople.22 It became routine for public funds to be diverted, for favours to be awarded in return for personal considerations, and for officials, especially junior ones, at national and local levels to demand kickbacks and bribes.

Citizens and private businesses were left with no choice but to resort to bribery, among other forms of corruption, to speed up burdensome bureaucratic processes and access public services to which they were entitled.23 Elements of the public sector such as the police (and other security clusters), the Registrar General’s office, and immigration, became partisan to (p. 240) the core. The situation was so dire that even the judiciary, with its record of professionalism, was not spared. In State v Paradza, a High Court judge, Judge Benjamin Paradza, was found to have incited two other High Court judges unlawfully and corruptly to release the passport of a business associate of his who was facing murder charges.24 The institution of traditional leadership, which often manages scarce resources such as land and farming inputs in the rural areas where the majority of the population reside, was not exempt either.25

Private-sector actors used every available opportunity to acquire advantage and preference when doing business with a public sector challenged by the economic downfall. The line between the public and private sector became blurred. Almost all politicians were running private companies that did business with the state. The increase in corrupt behaviour can be attributed to the economic hardships that, both in the public and private sector, forced officials with the ‘penchant and opportunity for doing so, to adopt unethical methods of making ends meet’.26

Thus, the third decade of independence can be described as the ‘decade of crisis’ when corruption went out of control. The institutions that ensure participation and accountability were greatly weakened; this, combined with disregard for the rule of law and the absence of political will to combat corruption, provided a conducive environment for corruption to thrive.27

2.4  The fourth decade of independence

The establishment in 2009 of a government of national unity comprising the major political parties was followed by years of political and economic stability.28 This fragile coalition successfully steered the adoption of a home-grown progressive constitution, paving the way for another set of harmonized elections in 2013. ZANU-PF won the presidential and parliamentary elections, which gave it the mandate to govern until early 2018 when the election term expired.

Soon after assuming power, ZANU-PF, through its economic blueprint, the Zimbabwe Agenda for Social Economic Transformation (ZimAsset), declared its commitment to combating corruption.29 However, the Salarygate scandal (2013–2014) almost immediately engulfed the country in controversy covered widely by state and private media. The anti-corruption initiative within which the scandal emerged was driven by Jonathan Moyo, the then Minister of Information and Publicity, largely as a means of discrediting the then Vice-President, Joyce Mujuru, in ZANU-PF power struggles.30 The scandal involved senior bureaucrats in government institutions, mostly SOEs and local authorities, who were awarding themselves hefty salaries and remuneration packages at a time when the majority of (p. 241) Zimbabweans were struggling to make ends meet.31 The scandal went largely uninvestigated and the culprits were not prosecuted, as the police claimed that the matter was governmental rather than criminal in nature, given that the remuneration packages were sanctioned by the respective boards or supervising authorities.32

The Salarygate scandal was soon followed by the matter of the USD15 billion that went missing from the Chiadzwa diamond mines. Speaking in March 2014 to the national broadcaster, the Zimbabwe Broadcasting Corporation (ZBC), President Mugabe acknowledged publicly that corruption had infested the diamond-mining sector, particularly at Chiadzwa in Manicaland Province, stating that

we have not received much from the diamond industry at all. I don’t think we have exceeded $2 billion, yet we think more than US$15 billion has been earned [. . .] Lots of smuggling and swindling has taken place and the companies that have been mining, I want to say, robbed us of our wealth.33

The question is: How could USD15 billion vanish without a trace in a country with an established legal order and financial rules? To date, no tangible action has been taken to bring the culprits to book.34

In 2016 another corruption scandal rocked Zimbabwe, this time in the Ministry of Higher and Tertiary Education, Science and Technology Development. The responsible minister at the time, Jonathan Moyo, together with other officials in his ministry, are alleged to have siphoned about USD270,000 from the Zimbabwe Manpower Development Fund (ZIMDEF) (a state parastatal) through corrupt activities.

Other high-level corruption cases continued to rock parastatals such as the Zimbabwe Electricity Supply Authority (ZESA), while, these cases aside, petty corruption worsened throughout the public sector. Police officials became notorious for fabricating traffic violations as an excuse to exact bribes, which they shared with their seniors in the higher echelons of power. The number of road checkpoints staffed by the police was significantly increased to widen the opportunities for exacting these bribes.35

In November 2017, a disturbance in the political order brought Mugabe’s rule to an end. In an intervention code-named Operation Restore Legacy, the military invoked section 212 of the Constitution, which empowers the Defence Forces to ‘protect Zimbabwe, its people, its national security and interests and its territorial integrity and to uphold the Constitution’. The objective was purportedly to protect national security and bring to book a group of corrupt ‘criminals’—politicians—who were said to have surrounded President Mugabe with the aim of reversing the gains of the war of liberation. Mugabe’s removal, while spearheaded by the military, received the support of a majority of ordinary citizens who were tired of the political and economic challenges that characterized the latter part of Mugabe’s rule.

The new president, Emmerson Mnangagwa, has emphasized the need to rebuild the country, with fighting corruption being at the centre of measures designed to aid economic recovery. Soon after coming to power, President Mnangangwa issued a three-month (p. 242) amnesty36 for the return of public funds and assets illegally externalized during Mugabe’s rule.37 Under this moratorium, offenders were given an opportunity to return the loot without being asked questions or prosecuted.38 As part of his anti-corruption strategy, Mnangagwa also issued a directive to all senior public officials to declare their assets. The targeted officials are ministers and their deputies, the heads of ministries, senior principal directors, board chairpersons and board members of SOEs and parastatals, members of constitutional commissions (both executive and independent), and chief executives of local authorities.39

In addition, he has revamped police services and operations, measures that included reducing the number of police checkpoints on the roads. A Special Anti-Corruption Unit based in the Presidency was established, as were Special Anti-Corruption Courts.

2.5  Interim conclusion

The preceding discussion has shown that corruption in Zimbabwe evolved over a lengthy period spanning nearly four decades. While the general citizenry boarded the ‘corruption bus’ in the early 2000s, a significant number of corruption cases witnessed since independence were of a grand nature, involving high-level politicians and senior bureaucrats, some of whom are still active in politics and governance. This form of political corruption entails a ‘political elite using state resources to cultivate patronage networks, reward loyalty and sanction political opposition’.40 In most cases, the involvement by elites in corruption does not seem to damage their political careers unless they belong to the opposition formation. The private sector and non-governmental organizations, among other actors, feed from the corruption wagon driven by senior public officials. As the discussion above shows, the norms, traditions, and institutions by which power and authority are exercised in Zimbabwe—that is to say, the country’s governance—seem to be the source of the problem of corruption.41

3.  Institutional anti-corruption initiatives

While corruption has reached endemic levels, the country has also established various anti-corruption institutions that in principle ought to be able to bring it under control. It is hence important to establish why they are failing to do so. These include the Office of the President and Cabinet (OPC), the Zimbabwe Anti-Corruption Commission (ZACC), the National (p. 243) Prosecuting Authority (NPA), the Zimbabwe Republic Police (ZRP), the Zimbabwe Human Rights Commission, the National Economic Conduct Inspectorate, the Public Service Commission, the Auditor-General (AG), the Financial Intelligence Unit (of the Reserve Bank of Zimbabwe), Specialized Anti-Corruption Units and Courts, and Parliament, through its various committees.

This chapter focuses on the ZACC, NPA, AG and the Specialized Anti-Corruption Units and Courts, although this should not be taken to mean the other institutions are not important—this focus is merely a way of limiting the scope of the research. According to Quah, there are seven factors that indicate or influence an anti-corruption agency’s performance.42 These are its independence and legal status; its financial and human resources; its detection and investigation functions; its prevention, education, and outreach functions; its cooperation with other organizations; its accountability and oversight; and public perceptions of its performance. These factors will be considered in the evaluation that follows of the effectiveness of anti-corruption institutions in Zimbabwe.

3.1  The Zimbabwe Anti-Corruption Commission

In 2000, the ZANU-PF government amended the Constitution to establish a specific anti-corruption agency, the Anti-Corruption Commission (ACC), consisting of members appointed solely by the President.43 The establishment of the Commission was necessitated by the fact that, as observed above, corruption had become so institutionalized that it could not be dealt with effectively on a case-by-case basis. It was also realized that the criminal justice system alone could not bring corruption under control.

The Commission became operational only in 2005 when the Anti-Corruption Commission Act was enacted. The five-year delay in establishing the Commission may signify that there was not enough political will to make the ACC operational. The ACC was reconstituted by the 2009 Amendment to the Constitution as the Zimbabwe Anti-Corruption Commission (ZACC).44 This Amendment also afforded the ZACC greater independence, given that it now requires the President to appoint the ZACC’s commissioners in consultation with Parliament.

The 2013 Constitution reformed the ZACC to enhance its capacity to fight corruption.45 The Commission now consists of nine members appointed by the President. Its chairperson is appointed by the President in consultation with the Parliamentary Committee on Standing Rules and Orders. The Committee also nominates a minimum of twelve persons, eight of whom are appointed as commissioners of the ZACC. Members of the public participate in the appointment process by nominating persons for interview by the Committee.

An appointment procedure of this kind that entails significant participation by Parliament and members of the public enhances the independence of the Commission by preventing its appointment from being solely a political exercise in which the President has unfettered discretion. The procedure, being participatory and transparent, also has the potential to improve public trust and confidence in the ZACC. Once appointed, the commissioners may (p. 244) not be arbitrarily removed from office and there are a number of constitutional safeguards of their tenure.

The functions of the Commission are

  • •  to investigate and expose cases of corruption in the public and private sectors;

  • •  to combat corruption, theft, misappropriation, abuse of power, and other improper conduct in the public and private sectors;

  • •  to promote honesty, financial discipline, and transparency in the public and private sectors;

  • •  to receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate;

  • •  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;

  • •  to refer matters to the National Prosecuting Authority for prosecution;

  • •  to require assistance from members of the Police Service and other investigative agencies of the state; and

  • •  to make recommendations to the Government and other persons on measures to enhance integrity and accountability and prevent improper conduct in the public and private sectors.46

The government has an obligation to ensure, through legislative and other means, that the ZACC has ‘the 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’.47 The Commissioner-General of Police is constitutionally obliged to comply with any directive given by the ZACC.48 The ZACC also has the power to bring to Parliament’s attention any matter relating to improper conduct in both the public and private sectors.49

The independence of the ZACC is guaranteed by the Constitution.50 To enhance the Commission’s independence, its secretariat does not form part of the civil service; instead, the ZACC determines the terms and conditions of employment of its staff in accordance with the constitutional and legislative requirements relating to labour. Moreover, commissioners and staff are required to be non-political when discharging their functions.

Thus, the ZACC has substantial powers, functions, and independence that stand to enhance its effectiveness in combating corruption. The Anti-Corruption Commission Act and the Prevention of Corruption Act operationalize the Commission by, among other things, providing for its establishment, powers, functions, and objectives.

Although this anti-corruption agency is hence equipped with the necessary powers to fight corruption, its performance has been lacklustre.51 A survey by Afrobarometer in 2015 revealed that 80 per cent of Zimbabweans are of the view that the ZACC and the government at large are faring badly in fighting corruption.52 The ZACC’s ineffectiveness is highlighted (p. 245) by the fact that, its existence notwithstanding, corruption has reached pandemic levels. Like its predecessor, the ZACC often targets the small fish but leaves the big ones to swim undeterred.

Thus, the independence granted to it by the 2013 Constitution does not seem to have sharpened the ZACC’s teeth enough for it to be effective in curbing corruption. Between February 2016 and August 2017, it handled 421 investigations but only concluded twelve.53 Those twelve cases that were referred for prosecution involved fraud, money-laundering, and corruption. The conviction rate is not publicly available, though, which can be attributed in part to the fact that most government institutions in Zimbabwe lack a culture of transparency. Be that as it may, it is a known fact that the Commission has successfully prosecuted only a few cases.54

What does not seem problematic, however, is the ZACC’s capacity to initiate high-level corruption cases. For example, in 2016 it issued several warrants of arrest against the permanent secretaries of various ministries as well as other senior government bureaucrats.55 The Commission was reported to have been investigating criminal cases against a number of ministers and other high-profile individuals.56 Securing the prosecution of such persons has proven difficult, though: very little, if anything, comes of investigations of individuals who are well connected or powerful in the government and/or ruling party, notwithstanding the government’s adoption of a zero-tolerance approach to corruption.57 At the time of writing, the ZACC was yet to achieve a single successful prosecution in President Mnangagwa’s anti-corruption campaign despite the numerous arrests made and investigations undertaken.

While the ZACC’s footprints are discernible when it comes to combating corruption in the public sector, its role in the private sector is much less apparent, even though the Constitution requires it to combat corruption in both sectors. Similarly, its role in prevention and education is almost non-existent. The Commission has concentrated on making investigations its primary means of fighting corruption, to the detriment of its prevention-and-education mandate.58 Indeed, at the time of writing, it did not even have a functional website, despite having been in existence for more than a decade. Furthermore, the Commission has not decentralized its offices to the provincial level, with its presence remaining limited to the capital. While some instances of collaboration with a few government institutions have been recorded, no visible, significant collaboration with the private sector and civil society has taken place.59 As a result, few people are aware of the existence of this important body. The ZACC, in short, is yet to deliver on its constitutional mandate.

3.2  The National Prosecuting Authority

The National Prosecuting Authority (NPA) is another constitutional body with a direct mandate to combat corruption. It is responsible for ‘instituting and undertaking criminal (p. 246) prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions’.60 A key aspect of its responsibility is to institute and undertake criminal prosecutions on corruption-related matters.

The NPA is headed by the Prosecutor-General (PG), who is appointed by the President on the advice of the Judicial Service Commission.61 The procedure of appointing and disciplining the PG is similar to that in the case of judges. Although the office of the PG is a public office, it is not part of the civil service. The Constitution requires the remuneration of the PG to be charged directly from the Consolidated Revenue Fund, and it may not be reduced during the incumbent’s tenure of office. The persons who assist the PG in carrying out prosecutorial duties are appointed not through the civil service structures but by an independent body to be established under an Act of Parliament.62

All these constitutional safety nets are necessary to promote the PG’s independence. Section 260 of the Constitution specifically guarantees the independence of the office of the PG. It provides that the PG is ‘independent and is not subject to the direction or control of anyone’. This entails that, constitutionally speaking, not even the executive or Parliament can direct the PG on whom to prosecute; only the Constitution dictates how the prosecutorial function is carried out, and it reserves this function solely for the NPA.

Parliament may, however, confer powers of prosecution to another person apart from the NPA, but the Constitution requires such powers not to limit or be in conflict with the functions of the NPA.63 The PG may also issue a certificate of private prosecution if he or she considers it necessary to do so in the interests of justice. When the PG and other members of the NPA carry out their functions, they are required to do so ‘impartially and without fear, favour, prejudice or bias’.64 As in the case of members of the ZACC, the members of the NPA are required to be apolitical when discharging their duties.65 The PG has the power to direct the Commissioner General of Police to investigate and report to him or her anything related to an offence, whether suspected or not.66 The Commissioner is required to comply with such a directive.

Thus, the 2013 Constitution has equipped the NPA with far-reaching powers which, if combined with the degree of independence that the Constitution accords to the PG, are significant for the effective execution of the prosecutorial function. There is no doubt that the NPA is one of the major boons of Zimbabwe’s new constitutional dispensation: the establishment of a separate NPA, with direct constitutional authority and extensive powers, stands to enhance the war against crime, including that on corruption.

In practice, the NPA has established the Economic Crimes and International Cooperation Section and the Asset Forfeiture Unit, among other measures, to deal with corruption-related matters. Despite the presence of these structures, though, the NPA is yet to make any significant strides in combating corruption, for reasons discussed later in this chapter. In 2015, it handled 156,940 cases, with corruption, fraud, and smuggling being some of the most prevalent crimes.67 Of the 156,940 cases, 155,694 were handled by the Magistrates Courts and had a 75 per cent completion rate. With regard to the corruption cases that were (p. 247) prosecuted, almost none of them involved high-profile figures, notwithstanding widely publicized allegations that numerous senior officials in both the public and private sectors are engaged in grand corruption.

The NPA’s performance with regard to these high-profile figures thus mirrors that of the ZACC. Clearly, it lacks either the appetite or competence to go after them. Concerns about the ZACC’s reluctance or incompetence to pursue high-level corruption cases are believed to be among the reasons for President Mnangagwa’s decision to suspend the former PG, Adv Ray Goba, in July 2018. The suspension followed recommendations by the Judicial Service Commission to that effect, whose power to provide such recommendations are provided for under the Constitution.68 If the suspension was indeed motivated by a desire to address corruption and improve the NPA’s effectiveness, then the President might have begun to walk the talk of fighting corruption.

3.3  The Auditor-General

The Constitution makes provision for the establishment of the Office of the Auditor-General (AG). The AG is charged with auditing the accounts, financial systems, and financial management of national, provincial, and local governments, government agencies, and independent constitutional bodies.69 In addition, the AG can carry out special audits of the accounts of any government institution or statutory body if requested to do so by the government.70 The AG is empowered to ‘order the taking of measures to rectify any defects in the management and safeguarding of public funds and public property’.71

These are far-reaching powers, ones that similar auditing institutions elsewhere in Africa often lack. Ideally, such powers enhance the AG’s effectiveness in fostering transparency and accountability in financial matters. The AG thus has the potential to make a significant contribution in the war against corruption. Moreover, he or she is appointed by the President, with the approval of Parliament,72 and as with the ZACC and NPA, the Office of the AG and his or her staff enjoy independence guaranteed under the Constitution.73

The AG is perhaps the most prominent institution in the country as far as delivering on constitutional obligations is concerned, particularly obligations regarding accountability and transparency. In particular, the AG’s contribution to the anti-corruption effort is twofold in nature. First, the AG has revealed shortcomings in the governance, financial, and procurement processes of government institutions that promote or enable abuses of power, including corruption. For instance, the AG’s audit report of 2015 showed that some SOEs were operating without boards of directors or the legally required number of board members.74 Others were operating with board members borrowed from institutions mandated to have oversight over them, which raises serious concerns about conflict of interest. The report also brought to light that non-compliance with procurement legislation is widespread among SOEs. The AG established, furthermore, that some SOEs have weak control systems (p. 248) and are therefore not in a position to prevent or reduce corruption, as one instance among others of abuse of power. The AG has revealed similar challenges in central government ministries and local authorities.

Second, the AG has exposed serious cases of corruption, maladministration, and mismanagement in government institutions at all levels. These maladies can be attributed to weaknesses in governance, procurement, and financial processes, as discussed above, or—where proper governance procedures are in place—to greed on the part of public officials. For example, the AG established that a significant number of SOEs ‘were paying board fees, management salaries and benefits which were not authorised or which were not subjected to tax’.75

Upon identifying malpractices and weaknesses in the financial accounts and systems of government agencies, the AG usually recommends remedial action either to prevent a recurrence of the problem or to ensure that the culprits are brought to book. The main challenge is that the AG lacks the powers to enforce such remedial actions or recommendations; the duty to ensure that the recommendations are implemented or enforced instead lies with other institutions such as Parliament and the executive. However, the failure of the relevant institutions to investigate the corruption exposed in audit reports has led to a loss of public confidence in these institutions.

3.4  Special Anti-Corruption Courts and Unit

Within the first eight months of President’s Mnangagwa’s rule, additional anti-corruption agencies were established. In March 2018, the Judicial Service Commission announced the launch of Special Anti-Corruption Courts to preside specifically over corruption cases. At the time of writing, two such courts were operational in Zimbabwe’s largest cities, Harare and Bulawayo. Selected magistrates underwent training to equip them with the expertise to deal with corruption cases, which are sometimes of a sophisticated and elusive nature. The ZRP has also established an anti-corruption unit dedicated to investigating corruption-related issues. The objective is to ensure that corruption cases are investigated by a specialized team without delay.

In May 2018, President Mnangagwa bemoaned the fact that the Specialized Anti-Corruption Courts were not being fully utilized. He acknowledged that the NPA has not made meaningful progress in the prosecution of high-level corruption cases before these courts.76 According to the statement released by the Chief Secretary to the Office of the President and Cabinet (OPC), this is so despite the fact that complete dockets have been handed over to the NPA by the ZRP and ZACC for possible prosecution.

In view of the NPA’s ineffectiveness, Mnangagwa has also established a Special Anti-Corruption Unit which is based in the office of the presidency.77 According to a statement by the Chief Secretary to the OPC, the Unit is necessary to ‘improve efficiency in the fight against all forms of corruption’.78 It would aim to ‘strengthen and improve the effectiveness (p. 249) of national mechanisms for the prevention and fight against corruption in accordance with [the] national anti-corruption strategy’.79 The terms of references of the Unit are

  • •  to collaborate with the ZACC and ZRP and other such institutions in the fight against corruption;

  • •  to assist the ZACC and other investigative agencies of the state in the perusal and consideration of corruption dockets;

  • •  subject to the issuance of Authority to Prosecute by the PG, to prosecute corruption cases referred to the NPA by investigative agencies; and

  • •  members of the Special Unit are to be bound by the Official Secrets Act (Chapter 11:10).80

The establishment of the Special Anti-Corruption Unit to complement existing anti-corruption agencies may further signal that President Mnangagwa is serious about bringing corruption under control; it also reflects a recognition that existing anti-corruption agencies are ineffective in spite of their constitutional support.

However, the role of the Unit and its place in the OPC raise several constitutional questions. The responsibilities assigned to it have already been assigned by the Constitution to the ZACC, NPA, and ZRP. For instance, the consideration of dockets relating to cases including those on corruption is already a function of the NPA. The prosecution function is constitutionally assigned only to the NPA; the exception (as mentioned) is where an Act of Parliament confers such a function to another authority other than the NPA or where the PG issues a certificate of private prosecution. At the time of writing, there was no piece of legislation that either provides for the establishment of this Unit or empowers it with prosecutorial powers.

In the absence of a specific legal basis for it, it can be concluded that the Unit is a product of a presidential decree, which, according to Magaisa, is a ‘hallmark of arbitrary rule’.81 There is a concern that the Unit may compromise or seek to replace other constitutional bodies that have a legitimate mandate to fight corruption—a development which does not augur well for constitutionalism.

In this regard, the government has sought to allay fears that the Unit will compromise the work of other constitutional bodies established to fight corruption such as the ZACC, NPA, and ZRP. The Permanent Secretary for the Ministry responsible for Justice, Legal and Parliamentary Affairs, Virginia Mabhiza, was reported to have said that

[t]he unit that was set up by the President on the advice of the Minister of Justice is now in place. It is there to complement efforts to combat corruption by other units who have the legal mandate to do so. They had their first meeting recently [July 2018] and have already begun interacting with both the ZRP and ZACC.82

The Permanent Secretary said the Unit would consider evidence given by agencies such as the ZRP and ZACC in deciding whether to proceed with the investigations or prosecution of corruption and fraud cases.83 She went on to explain that the Unit would only prosecute (p. 250) cases once the PG gives the go-ahead.84 The constitutionality of this Unit, however, remains in question, especially in the absence of a legal basis for it.

The establishment of the Unit within the OPC (presidency) also poses other challenges. The Unit will exercise far-reaching investigative and prosecutorial powers, yet accounts not to Parliament but directly to the President. The fact that the Unit is based in the OPC can be interpreted to mean that it is part of the executive. However, section 260 of the Constitution does not allow any members of the executive to exercise prosecutorial functions or to direct (or control) anyone exercising prosecutorial powers, a restriction which is in place to ensure the separation of powers, a key ingredient of constitutionalism. As mentioned, persons exercising such powers are appointed by an independent body and fall outside the control of the executive by virtue of not being members of the civil service.85

The fact, moreover, that members of this Unit are bound by the Official Secrets Act entails that they would not be at liberty to reveal any details relating to the investigation and prosecution of corruption cases. In addition, the conditions of service, including remuneration, of members of this Unit are determined by the OPC.86 This is problematic as it predisposes them to be allegiant to the executive. In sum, there may be tensions between the role of the Unit and its establishment in the presidency, on the one hand, and constitutionalism, on the other.

4.  Key obstacles confronting anti-corruption institutions

Corruption remains out of control in Zimbabwe despite the presence of various anti-corruption institutions that have constitutional backing. The question is: Why are these institutions failing to bring corruption under control?

This section examines five key factors that are undermining the effectiveness of the ZACC, NPA, and AG in delivering on their mandate in this regard. These are their lack of independence; the lack of clarity on the nature and extent of their powers; the failure to secure cooperation with relevant government agencies; capacity constraints; and the problem of corruption within anti-corruption institutions.

It can be observed that four of the five factors are beyond their control, which suggests that these institutions are operating in an ‘unfavourable policy context fraught with obstacles that hinder the effective implementation of the anti-corruption laws’.87

4.1  Lack of independence

The United Nations Convention against Corruption (UNCAC) prescribes that anti-corruption institutions should be provided with ‘the necessary independence’ so that they can perform their functions effectively and ‘free from any undue influence’.88 One of the main reasons why Zimbabwe’s anti-corruption agencies are not effective is that, while the Constitution guarantees their independence, in practice it is yet to materialize, particularly (p. 251) in the case of the ZACC.89 Its 2016 annual report reveals that it faces constant political interference, including threats from ministers and other high-profile individuals, that significantly undermines its performance in meeting its constitutional obligations.90

It is reported, for instance, that members of the Commission have feared for their lives, a circumstance that naturally hampers the investigation of corruption cases.91 The country’s former Vice-President, Phelekezela Mphoko, is alleged to have stormed Avondale Police Station and ordered the release of two senior officials of the Zimbabwe National Roads Administration who had been arrested by the ZACC on corruption charges.92

Such political interference in ZACC operations is common and undermines the independence of the Commission. At an operational level, the Commission is no longer under the wings of the ministry responsible for justice but under the OPC. The placement of ZACC under any wing of the executive, whether for administrative reasons or not, compromises its independence and, as such, may be inconsistent with the Constitution.93

Such lack of independence has similar effects on the NPA and, arguably, on the entire justice system, albeit to a lesser extent. Members of Parliament across the political spectrum were unanimous that the public officials involved in the Salarygate scandal discussed in Section 2.4 ought to be investigated and prosecuted. Not surprisingly, these officials are yet to be prosecuted despite credible evidence that they used their positions to loot public funds; however, the former chief executive officer of the ZBC, Happison Muchechetere, as well as senior managers from Air Zimbabwe—all of whom were implicated in related scandals—were indeed prosecuted, with each of them, save for Muchechetere, receiving prison sentences of seven years. Little progress has been recorded in the case of Muchechetere, even though he appeared before the courts on various charges. Several other politicians and senior bureaucrats who looted public funds under Mugabe’s rule likewise have not been brought to book.94

The practice of selective investigation, arrest, and prosecution seems then to have continued under President Mnangagwa’s government. Soon after he assumed power, several politicians, senior bureaucrats, and businesspeople were arrested and/or prosecuted for corruption. Most of the cases relate to procurement processes, land management, mining resources, farming resources, and SOEs, areas which in Zimbabwe are prone to corruption.95 The politicians who have been arrested are former ministers in Mugabe’s cabinet and members of the ZANU-PF, namely, Ignatius Chombo, Walter Mzembi, Walter Chidhakwa, Samuel Undenge, Jason Machaya, and Joseph Made. For instance, at the time of writing, Chombo was being prosecuted for allegedly having corruptly acquired urban state land during his stint as the minister responsible for local government. Businesspeople who have been investigated, arrested, and/or prosecuted include Wicknell Chivayo, Oscar Pambuka, and Psychology Maziwisa, all of whom are accused of having corruptly acquired funds from state-owned ZESA, allegedly with the help of the former minister responsible for energy, Samuel Undenge, who was also arrested and prosecuted.

A defining characteristic of these arrests and prosecutions is that all the officials targeted so far have links with the ‘G40’ faction that competed against President Mnangagwa in ZANU-PF’s factional battles over the successor to President Mugabe. Thus, where high-level (p. 252) officials have been investigated, arrested and/or prosecuted, it is difficult to refute the claims that such anti-corruption efforts have been motivated largely by the desire to settle political scores.96

Again, there is evidence that investigation and prosecution are being undertaken selectively, which suggests that these processes are guided by a ‘hidden (political) hand’. Such interference affects the entire justice sector (from the police and NPA to the courts) and makes the objective of bringing corruption under control unattainable. The ZACC and NPA have been unable so far to investigate and prosecute senior politicians, bureaucrats and prominent citizens without fear or favour, as required by the Constitution.97 The argument that the Commission is an instrument for punishing political opponents within and outside the ruling party may therefore be accurate.98 As with any other anti-corruption agencies, the effectiveness of the ZACC and the NPA relies in part on their ability to portray an image of impartiality by investigating and prosecuting anyone irrespective of his or her political affiliation, position in a political party, social status, or economic standing. To date, the ZACC and NPA have failed to portray that image convincingly.

4.2  Lack of clarity on the nature and extent of powers

There is debate as to whether the ZACC has the power to effect an arrest or whether its role is limited to recommending an arrest to the police. In Jonathan Nathaniel Moyo v Sergeant Chacha and Others,99 the ZACC’s power to make an arrest was challenged in the Constitutional Court. The applicant, Jonathan Moyo, was arrested by the ZACC on corruption charges relating to the abuse of ZIMDEF funds, but contested his arrest on various grounds, one of which was his assertion that the ZACC does not have arresting powers.100 He argued that his arrest was unlawful and therefore an infringement of his right to personal liberty, which is protected by the Constitution. The Court ruled that it does not have the jurisdiction to determine if the applicant was lawfully arrested as that lies with the Magistrates Court.101

Athough the Court did not determine the parameters of the ZACC’s arresting powers, if any, the case demonstrates the lack of clarity about whether the Commission can effect an arrest on its own. There is, in turn, no doubt that the lack of clarity on the boundaries of the Commission’s powers adversely affects its effectiveness.

As for the AG, there is similar debate as to whether the audit reports of the AG provide sufficient grounds for prosecuting suspects. In other words, do the reports constitute tangible evidence that can be used in a court of law for prosecution purposes? One school of thought subscribes to the view that suspects should be arrested and prosecuted on the basis of the AG’s reports; another argues that the AG’s findings require follow-up forensic investigations. Often, the result is that neither option is pursued. Thus, the lack of clarity on the extent of the powers of these anti-corruption institutions continues to constrain the fight against corruption.

(p. 253) 4.3  Failure to secure cooperation from relevant government agencies

The Constitution requires all government agencies, including the ZRP and NPA, to render such support as the ZACC may require to perform its functions.102 However, under Mugabe’s rule, the ZACC often struggled to secure the necessary support and cooperation, especially from important stakeholders such as the NPA, ZRP, and the ministry responsible for home affairs.103

While the Constitution requires the ZACC and ZRP to establish operating procedures in this regard, these were not established in actuality. As a result, the relationship between them tended to be characterized by suspicion, conflict, and lack of cooperation.104 The ZACC investigated several corruption cases and recommended arrests, but the ZRP has not always complied. Although the Anti-Corruption Commission Act empowers the Attorney-General to resolve any conflicts that may arise between the ZACC and the ZRP, there is no public evidence to suggest that such powers were exercised.105 In practice, nonetheless, most investigations, searches, and seizures are undertaken jointly by the ZACC and ZRP.

The problem of failing to secure the necessary cooperation from government institutions has also undermined the oversight role of the AG.106 Over the years, the AG has received little, if any, support, from the relevant bodies in relation to the implementation of recommendations and directives designed to instil financial discipline, transparency, and accountability.

As highlighted above, the Constitution empowers the AG ‘[to] order the taking of measures to rectify any defects in the management and safeguarding of public funds and public property’.107 Public officials are required to comply with such orders of the AG.108 Every financial year, the reports of the AG reveal serious decay in almost all government institutions, but their recommendations and orders are, at best, only partially implemented; at worst, the reports are vilified. For instance, ‘during parliamentary debates, portfolio ministers actively defend the actions of their subordinates’ rather than allow Parliament to exercise its oversight function on the basis of the AG’s recommendations.109

The Mugabe government largely ignored the AG’s reports, and there were few investigations that followed up on them.110 Nevertheless, it is the duty of the executive—through, for example, the ZRP—to pursue persons implicated in these reports. If the executive fails to implement the remedial actions of the AG, then Parliament has a duty, through its oversight function, to hold the executive accountable for such failure. Thus, despite their potential, the AG’s audit reports did not bring about any tangible results under Mugabe’s rule in so far as corruption in the public sector is concerned.

In a country where there is a strong culture of constitutionalism, there is no reason why government institutions and organs should refuse to cooperate and support anti-corruption agencies. As observed above, that culture has not existed in Zimbabwe for a long time, making the work of anti-corruption agencies challenging. There are efforts by President (p. 254) Mnangagwa to restore constitutionalism in Zimbabwe, which, if successful, would enhance the ability of these bodies to make meaningful headway in the war against corruption.

4.4  Capacity constraints

The UNCAC requires anti-corruption institutions to be provided with the ‘necessary material resources and specialized staff, as well as the training that such staff may require to carry out their functions’.111 In Zimbabwe, the ineffectiveness of its anti-corruption institutions is partly attributable to their lack of adequate resources:112 the underperforming economy has reduced the revenue available for distribution to government institutions, and consequently these institutions, including the ZACC, NPA, and AG, are often underfunded.

Of the anti-corruption institutions, the ZACC is perhaps the most affected. For instance, in 2016 it was allocated a paltry USD1.6 million. Such an amount is not enough to support the operations of an anti-corruption agency in a country where corruption is now accepted as the norm. More often than not, the few available resources allocated to the ZACC are barely enough to cover the salaries and benefits of commissioners and staff, leaving very little, if any, for operations. Its staff shortages and lack of resources are cited as some of the major reasons for the fact that the ZACC has managed to complete only 12 out of 421 cases.113 In the 2015 budget, the Treasury likewise allocated a meagre USD3,524,781 to the NPA, of which only 78 per cent was actually released.114 Such a small budget restricts the NPA’s effectiveness in carrying out its constitutional mandate, including fighting corruption.

While it should be acknowledged that the state faces significant challenges in mobilizing resources, its inadequate funding of the ZACC could also be interpreted as symptomatic of a lack of commitment or political will to make the ZACC an effective body.115 Furthermore, section 305 of the Constitution requires that, when the minister responsible for finance presents the national budget, he or she provide a separate budget vote for the Commission. This requirement is yet to be met, as the Treasury does not allocate finances directly to the Commission but rather through the appropriate line ministry or institution. As a result, the Commission relies to a significant extent on the ministry or relevant institution for its financial resources. The net effect is that the line ministry or relevant institution exercises de facto oversight powers over the Commission, powers not assigned to it under the Constitution. The failure to give the ZACC an independent budget may be a further sign of the government’s lack of commitment to the ZACC’s mission.116

Other capacity constraints relate to the institutions’ human resources.117 The ZACC experiences a high turnover in commissioners and staff, who rarely complete their terms of office due in large part to an unconducive working environment. Consequently, there tends to be a lack of continuity, a factor that adversely impacts on the mandate of the ZACC, particularly in terms of its investigation of corruption cases. The NPA is also hugely understaffed in professional and administrative terms. As a result, it relies on seconded prosecutors from (p. 255) the security services, who constitute 47 per cent of its professional staff establishment.118 Similarly, the ZACC relies on staff, particularly investigators, seconded from the ZRP.

Arrests effected by such seconded police officers were challenged in Jonathan Nathaniel Moyo v Sergant Chacha and Others. The applicant argued that Sergeant Chacha, who had been seconded to the ZACC by the ZRP, could not act on behalf of both the ZACC and ZRP at the same time.119 The Constitutional Court ruled that when a police officer has been seconded to another branch of government outside the regular Police Service, that police officer continues to have the powers vested in a member of the Service, including the power to arrest.120 This judgment shows that, while legally permissible, the practice of seconding staff to these independent bodies can be problematic. The role of these security officials also raises questions about the independence of the NPA and ZACC.

The high staff turnover in these constitutional bodies, especially among staff with degrees, indicates that the bodies’ staffing requirements are unlikely to be met unless remuneration and working conditions improve considerably; the implication is that, failing such an improvement, the number of cases the NPA can handle, and the quality of the prosecutorial services it can provide, for example, are significantly diminished.121

The ZACC experiences similar deficiencies in technical capacity. Given that its major functions are to investigate corruption, prevent it, and provide education on it, the ZACC’s personnel should have the requisite skills for performing these functions.122 However, as noted, the Commission often employs former members of the security services as investigators, and in some cases they lack the requisite investigative capacity, especially when it comes to highly sophisticated corruption cases. The AG is also understaffed, forcing the supreme audit institution to outsource some of its auditing duties to private firms. Thus, in a nutshell, capacity constraints remain at the centre of the anti-corruption institutions’ ineffectiveness.

4.5  Corruption within anti-corruption institutions

The independence given to anti-corruption agencies does not mean their officials can do as they wish. They must adhere to the rule of law, respect human rights, have integrity, and be accountable. Corrupt personnel undermine the legitimacy and public image of an anti-corruption agency. Internal corruption also ‘prevents the … personnel from performing their tasks impartially and effectively’.123

Unfortunately, ZACC and NPA operations have been characterized by deficiencies in accountability and integrity, given that anti-corruption watchdogs are themselves susceptible to corruption.124 Over the years, the ZACC and NPA have been riddled with cases of corruption. For instance, the ZACC revealed in its 2016 annual report that some of its staff members converted the Commission’s vehicles for personal use in violation of standing policy, rules, and procedures. Several of its managers were also suspended after they corruptly acquired one of the Commission’s properties.125 Even though disciplinary proceedings were (p. 256) instituted against certain of the culprits, the image of the ZACC was badly tarnished by their misconduct.

As for the NPA (and related institutions), a number of public prosecutors, police officers, and magistrates are encouraging corruption by not only accepting bribes but soliciting them. The magnitude of corruption among the major custodians of law and order is a worrisome indication of how endemic corruption is in Zimbabwe.126 This is particularly so in the ZRP, some members of which have accumulated significant wealth that is hard to explain in view of the low salaries they receive.

Prosecutors and administrators in the NPA are perhaps the least compensated among legal professionals in Zimbabwe, even though they are overloaded with work.127 Such unfavourable conditions of service are often cited as the major catalyst for corruption in the justice sector. High-level figures, who are often prepared to part with some of the proceeds of their criminal activities in exchange for liberty, are therefore unlikely to see the inside of a courtroom. If they do, they will unlikely taste jail time. The impartiality and legitimacy of the anti-corruption institutions, particularly the ZACC, have been brought into question thanks to complicity in the very corruption they are meant to combat.

5.  Creating an enabling environment for anti-corruption institutions

President Mnangagwa acknowledged that anti-corruption institutions face numerous challenges that hamper their efforts.128 Despite this acknowledgement, though, he seems not to have been convinced that dealing with the challenges was an immediate priority, since he proceeded instead to add a further entity to Zimbabwe’s anti-corruption architecture, the Special Anti-Corruption Unit. If the Unit were necessary, would it not have been appropriate to establish it within the NPA as a way of strengthening the Authority?

Thanks to the mystery surrounding the Unit, various scholars and members of the general public saw the announcement establishing it as merely a response by the President to criticisms that he had promised a lot but delivered little in fighting corruption.129 However, in July 2018 it was reported that, less than two months after this announcement, the Unit had already begun work.130 This followed the appointment of a six-member team consisting of senior prosecutors and experienced lawyers from government and private practice. If the speed with which the Unit was operationalized and the quality of the investigative and prosecutorial experience it mustered are anything to go by, then President Mngangagwa may well be giving a sign of having the political will to deal with corruption cases effectively, especially high-level ones, though at the time of writing it is too early to tell if the Unit will indeed give impetus to Zimbabwe’s anti-corruption efforts.

Be that it as it may, evidence from Hong Kong, Chile, Australia, and Singapore proves that anti-corruption agencies can be effective in cleaning up both the public and private sectors,131 but what is required is an enabling environment for a few key such agencies rather than the creation of a plethora of them. There is no doubt that the war against corruption in (p. 257) Zimbabwe requires independent and fearless anti-corruption institutions.132 These agencies provide the necessary framework to deal with corruption of an endemic nature. The independence of these institutions, which is guaranteed in the Constitution, should be realized in practice, particularly by guarding against political interference, which has been identified in this chapter as perhaps the largest challenge confronting anti-corruption work in Zimbabwe.

The provision of sufficient resources—financial, human, and technological—will undoubtedly also contribute to improving their overall efficacy. Without adequate resources, anti-corruption institutions will continue to lack the much-needed capacity to deal with corruption decisively, despite their enjoying constitutional authority.133 Training opportunities should be made available continually to the personnel of these anti-corruption bodies to maintain and enhance their expertise.134 Improving remuneration and working conditions is essential for reducing corrupt behaviour, motivating staff, and retaining the best skills.

Given the diversity of actors involved in anti-corruption efforts, there is a need, first, to delineate the powers and roles of the relevant institutions clearly and thereby reduce overlaps and role duplication. Secondly, it is crucial to develop coherent enforcement mechanisms that enhance coordination of effort by linking the investigations, arrests, and prosecutions made and carried out by the various institutions. Thirdly, this should be supported by the non-selective investigation and prosecution of offenders. Furthermore, empowering ZACC investigating officers with the power to carry out arrests, searches, and seizures independently, as well as assigning prosecutorial powers to the ZACC or seconding police officers and prosecutors to it, may enhance the Commission’s ability to fight corruption. Finally, the success of anti-corruption institutions depends strongly on the existence of the political will to make them work, something which has been largely absent for the past few decades.

6.  Conclusion

Corruption continues to pervade Zimbabwe even though it has a diverse range of anti-corruption institutions grounded in the Constitution. While economic hardships have incentivized corrupt behaviour, it is, however, the politics of patronage that is perhaps the major impediment to anti-corruption efforts. In this regard, there is often reluctance to investigate and prosecute senior public officials and prominent businesspeople who are involved in corrupt activities, with the small fish, those engaged in petty corruption, usually being the ones sacrificed to appease the public. In those few cases where the ‘big guns’ have been targeted, the objective generally has been to settle political and individual scores. Political and individual imperatives have thus tended to override the objective of bringing corruption under control. This explains why anti-corruption agencies, which often operate in an unconducive environment, have failed thus far to contain corruption.

The fall of Robert Mugabe in November 2017 may improve the chances of winning the war against corruption. It has created the opportunity to set the country on a new path where constitutionalism and clean government can become indispensable values. Mugabe’s successor, President Mnangagwa, has embarked on an anti-corruption drive in which senior public officials and prominent businesspeople have been arrested and prosecuted. However, he still needs to do more to prove that he is not simply engaged in a witch-hunt against (p. 258) political foes. Mnangagwa has emphasized the need for Zimbabwe to be a ‘clean nation, one sworn to high moral standards and deserved rewards’.135 While this vision is a noble one, the difficult question is how to realize it. Only a genuine anti-corruption drive aimed at protecting the public good has a credible chance of ensuring that corruption is no longer an accepted norm in Zimbabwe.

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Footnotes:

1  See Transparency International, Corruption Index 2017 <https://www.transparency.org/> accessed November 2018; the World Bank, Ease of Doing Business Index 2017 <http://www.doingbusiness.org/en/rankings <accessed November 2017>; World Justice Project, Rule of Law Index 2016 <http://data.worldjusticeproject.org/> accessed October 2017.

2  Amendment 20 of 2013 (the Constitution).

3  Government of Zimbabwe, ‘Acceptance Speech by the Incoming President of the Republic of Zimbabwe, Comrade Emmerson Dambudzo Mnangagwa, 24th November 2017’ (Office of the President and Cabinet 2017) <https://bit.ly/2C3qlX3> accessed 25 January 2018.

4  ibid.

5  See eg the Constitution, ss 3, 9, 196, 198, 298(1), 299, and 308(3); Prevention of Corruption Act 27 of 2004, ch 9:16; Anti-Corruption Commission Act 13 of 2004, ch 9:22; Criminal Law (Codification and Reform) Act 23 of 2004, ch 9:23; Criminal Procedure and Evidence Act 2 of 2016, ch 9:07.

6  Stephen Moyo, ‘Corruption in Zimbabwe: An Examination of the Roles of the State and Civil Society in Combating Corruption’ (PhD thesis, University of Central Lancashire 2014) 7, 27.

7  Cornelias Ncube, ‘When Politics Corrupts Policy: Corruption as a Political Feasibility Problem in Zimbabwe’ (2013) 2 Ubuntu: Journal of Conflict and Social Transformation 97, 111. See State v Paweni and State v Charles Ndhlovu, which are prominent cases on corruption in the early independence era.

8  Moyo (n 6) 30.

9  Colin Stoneman and Lionel Cliffe, Zimbabwe: Politics, Economics and Society (Pinter Publishing 1989) 81.

10  ibid.

11  Anwar Shah, ‘Tailoring the Fight against Corruption to Country Circumstances’ in Anwar Shah (ed), Performance Accountability and Combating Corruption (World Bank 2007) 235.

12  These include the ZISCO Steel Blast Furnace scandal (1987); Air Zimbabwe Fokker Plane scandal (1987); and the National Railways Housing scandal (1986).

13  John Makumbe, ‘Bureaucratic Corruption in Zimbabwe: Causes and Magnitude of the Problem’ (1994) 19 Africa Development 45, 51.

14  Ncube (n 7) 113.

15  Makumbe (n 13) 49.

16  See Ncube (n 7) 102. These include the War Veterans Compensation Fund scandal (1994); the Grain Marketing Board scandal (1995); the Harare City Council Refuse Tender scandal (1998); and the National Oil Company of Zimbabwe scandal (1999).

17  Marie Chene, Zimbabwe: Overview of Corruption and Anti-Corruption (Anti-Corruption Resource and Transparency International 2015) 3.

18  Moyo (n 6) 3, 33.

19  Goodwill Shana, ‘The State of Corruption in Zimbabwe’ (Mass Public Opinion Institute seminar, Harare, 9 May 2006) 3.

20  Chene (n 17) 1.

21  See Shah (n 11) 242). Threats to judicial officers and the non-implementation of court decisions are among many other common factors constraining the judiciary.

22  Moyo (n 6) 137 cites the cases of James Makamba (ZANU-PF central committee member), Gilbert Muponda, Francis Zimuto, and Chris Kuruneri (former finance minister).

23  Chene (n 17) 3. Such services include the acquisition of national identity cards, birth certificates, passports, and driving licences.

24  State v Paradza (HC 2475/03) 155. The passport of Wayne Labuschagne was held by the Registrar of the High Court of Bulawayo as part of his bail conditions. The accused Justice wanted the passport released so that Labuschagne could travel to further their business interests. The Court also found the Justice guilty of obstructing the administration of justice—see page 3, 155.

25  See Moyo (n 6) 35.

26  Makumbe (n 13) 56.

27  See Shah (n 11) 242–243.

28  Chene (n 17) 1.

29  Government of Zimbabwe, Zimbabwe Agenda for Sustainable Socio-Economic Transformation (Zim Asset)—Towards an Empowered Society and a Growing Economy: October 2013–December 2018 (Government of Zimbabwe 2013).

30  Bertelsmann Stiftung, BT 2016—Zimbabwe Country Report (Bertelsmann Stiftung 2016) 3. The Vice-President, together with her close associates, has since been dismissed from both the party and government.

31  For instance, Cuthbert Dube, the chief executive officer of the state-owned Premier Medical Aid Society Group, was reported to be earning a salary of USD230,000 per month in 2012.

32  Chene (n 17) 5.

33  Alex Magaisa, ‘Mugabe and the $15 Billion Question’ The Standard (Bulawayo, 14 March 2016) <http://www.thestandard.co.zw/2016/03/14/mugabe-and-the-15-billion-question/> accessed 17 April 2017.

34  ibid.

35  Chene (n 17) 5.

36  From 1 December 2017 to 28 February 2018.

37  Government of Zimbabwe: Office of the President and Cabinet, ‘Granting of a Three-Month Amnesty for the Return of Illegally Externalized Funds and Assets’ (Pindula News, 28 November 2017) <https://news.pindula.co.zw/2017/12/14/mnangagwa-says-list-people-illegally-externalized-money/> accessed 20 January 2018.

38  Offenders would be prosecuted after the expiry of this three-month period.

39  See Government of Zimbabwe: Office of the President and Cabinet, ‘Press Statement by the Chief Secretary to the President and Cabinet, Dr MJM Sibanda on the Mandatory Declaration of Assets by Senior Public Service Officers’ (Pindula News, 23 January 2018) <https://news.pindula.co.zw/2018/01/23/full-text-government-orders-ministers-to-declare-their-assets-by-end-of-february/> accessed 1 February 2018.

40  Chene (n 17) 4.

41  See Shah (n 11) 234. The ‘norms and traditions, and institutions include the institutions of participation and accountability in governance, mechanisms of citizen voice and exit, and norms and networks of civic engagement; the constitutional and legal framework and the nature of accountability relationships between the citizens and government; the process by which governments are selected, monitored, held accountable, and renewed or replaced; and the legitimacy, credibility, and efficacy of the institutions that govern political, economic, cultural, and social interactions among citizens and between citizens and their governments’.

42  Jon Quah, Anti-Corruption Agencies Strengthening Initiative, Research Implementation Guide (Transparency International 2015) 7 .

43  Constitution of Zimbabwe Amendment 16, Act 5 of 2000.

44  Constitution of Zimbabwe Amendment 29, Act 2009, s 100(k).

45  Constitution, s 254(1).

46  ibid s 255(1).

47  ibid s 255(3).

48  ibid s 255(2).

49  ibid s 257.

50  See the Constitution, s 257 read together with ss 234–37.

51  Bertelsmann Stiftung (n 30) 35.

52  Stephen Ndoma, ‘Zimbabweans See Corruption on the Increase, Feel Helpless to Fight it’ (2015) 25 Afrobarometer Dispatch 6.

53  Veneranda Langa and Paidamoyo Muzulu, ‘Mphoko “Interfering” in Zacc Operations’ (Newsday, 1 August 2017) <http://www.newsday.co.zw/2017/08/01/mphoko-interfering-zacc-operations/> accessed 1 August 2017.

54  The most cited one is that of the former town clerk of Chitungwiza municipality, Godfrey Tanyanyiwa, who was jailed for an effective two-and-a-half years for abuse of public office.

55  See Farirai Machivenyika, ‘ZACC Cites Threats, Meddling in OPS, Officials Living in Fear, Ministers, High-Profile Figures Fingered’ (The Herald, 20 April 2017) <https://bit.ly/2Aynu8F> accessed 21 April 2017.

56  ibid.

57  See Government of Zimbabwe (n 29) 126.

58  Moyo (n 6) 220.

59  ibid 238–39.

60  Constitution, s 258.

61  ibid s 259(1)(3).

62  ibid s 259(10).

63  ibid s 263.

64  ibid s 260(1).

65  ibid s 261(2)(3).

66  ibid s 259(11).

67  National Prosecuting Authority of Zimbabwe, Annual Report [2015] (National Prosecuting Authority of Zimbabwe 2016) <https://bit.ly/2TwcG1G> accessed 3 May 2017.

68  Constitution, s 187.

69  ibid s 309(2)(a).

70  ibid s 309(2)(b).

71  ibid s 309(2)(c).

72  ibid s 310(1).

73  ibid ss 311, 314(c).

74  Auditor-General, Report of the Auditor-General for the Financial Year Ended December 31, 2015 on State Enterprises and Parastatals, Presented to Parliament of Zimbabwe 2016 (Office of the Auditor-General 2016) 2.

75  ibid 2.

76  Government of Zimbabwe, Office of the Chief Secretary to the President and Cabinet, ‘Establishment of a Special Anti-Corruption Unit’ (21 May 2018) <https://minbane.wordpress.com/2018/05/21/https-wp-me-p1xtjg-6z8/> accessed 20 January 2019.

77  ibid.

78  ibid.

79  ibid.

80  ibid.

81  Alex Magaisa, ‘The Trouble with ED’s Anti-Corruption Unit’ (Saturday Big Read, 22 May 2018) <http://www.bigsr.co.uk/single-post/2018/05/22/The-trouble-with-EDs-anti-corruption-unit> accessed 22 June 2018.

82  The Sunday Mail,‘Special Anti-Corruption Unit Begins Work’ (Harare, 8 July 2018) <http://www.sundaymail.co.zw/special-anti-corruption-unit-begins-work/> accessed 14 July 2018.

83  ibid.

84  ibid.

85  See the Constitution, s 259(10).

86  See Government of Zimbabwe (n 76).

87  Quah (n 42) 4.

88  General Assembly Resolution 58/4 of 31 October 2003, art 6(2).

89  Chene (n 17) 7; Moyo (n 6) 223.

90  Machivenyika (n 55).

91  ibid.

92  Langa and Muzulu (n 53).

93  Magaisa (n 81).

94  Moyo (n 6) 221.

95  See Chene (n 17) 5–6.

96  See Bertelsmann Stiftung (n 30) 2; Chene (n 17) 7.

97  ss 235(1), 260(1).

98  Machivenyika (n 55).

99  CCZ 19/17.

100  ibid 7.

101  ibid 3.

102  Constitution, s 255(2)(3).

103  See Moyo (n 6) 221.

104  Bertelsmann Stiftung (n 30) 35.

105  See Anti-Corruption Commission Act, s 13(5).

106  Chene (n 17) 9.

107  Constitution, s 309(2)(c).

108  ibid s 309(3).

109  Makumbe (n 13) 58.

110  Chene (n 17) 9.

111  UNCAC, art 6(2).

112  Bertelsmann Stiftung (n 30) 12; Chene (n 17) 8; Moyo (n 6) 233.

113  Machivenyika (n 55).

114  National Prosecuting Authority (n 67).

115  See Quah (n 42) 8; Moyo (n 6) 233.

116  See Quah (n 42) 8.

117  Moyo (n 6) 235.

118  See National Prosecuting Authority (n 67).

119  Jonathan Nathaniel Moyo v Sergant Chacha and Others, 8.

120  ibid 23.

121  Similar capacity constraints are experienced throughout the justice chain, adversely affecting the objective of bringing corruption under control.

122  Quah (n 42) 9.

123  ibid 11.

124  Bertelsmann Stiftung (n 30) 35.

125  Machivenyika (n 55).

126  See Makumbe (n 13) 51, 52.

127  National Prosecuting Authority (n 67) .

128  ibid.

129  See Magaisa (n 81).

130  The Sunday Mail (n 82).

131  Shah (n 11) 245.

132  ibid 4.

133  See Makumbe (n 13) 58.

134  See Quah (n 42) 9.

135  Government of Zimbabwe (n 3).