Zimbabwe’s state-owned companies have a history of corruption. With almost total impunity, the top management of state entities has openly looted public entities.
If you read the local newspaper any day, chances are you’ll read a story about corruption involving an executive from a state-owned company. Unscrupulous executives of parastatals often rely on politicians for protection.
The latter have halted efforts to reform public entities and hold them accountable. In particular, the executive’s lack of interest in initiating laws to tackle corruption itself speaks to the politicians’ success in protecting their cronies who looted state-owned companies.
The executive has systematically failed to supervise or regulate the corrupt practices of state companies. The only way forward is to change this. This is what a man and his lawyer have been looking for.
Allan Markham has brought a case against the executive before a fiercely counter-majority court known for its reputation for dismissing cases from public litigation. the case is Allan Norman Markham v Minister for Justice, Legal and Parliamentary Affairs and Attorney General of Zimbabwe.
Markham is an opposition MP. In parliament, he sits on the public accounts committee, which is mandated to be the republic’s stock and resource watchdog.
Markham is also a human rights activist, having been involved in cutting-edge strategic human rights litigation that aims to uphold the rule of law, democracy, and financial responsibility. His lawyer, Tendai Biti, a former finance minister, has already achieved remarkable and unprecedented success with impact litigation.
Markham approached the court arguing that in the performance of his parliamentary duties “he has been exposed to the rot that exists” in state-owned companies, “totally riddled with corruption”. He referred to authoritative investigations into the affairs of state-owned companies carried out by the auditor general, who presented them annually to parliament, exposing internal corruption. This is one of the reasons that has led the country to miserably fail “in realizing its optimal potential, for the growth and development of its own citizens,” Markham said.
The crux of his case was that corruption in Zimbabwe is serious because there are no “adequate legislative tools to combat corruption, or tools that hold those in positions of authority, in state institutions, fully accountable, hence the need to update the Constitution for it”. serves this particular purpose.” Specifically, section 198(a) of the Zimbabwean Constitution says that parliament must provide measures to pass a law requiring civil servants to make regular declarations of their assets.
Markham searched for a mandamus – an order against the defendants – to comply with their constitutional obligation in terms of the aforementioned article 198 of the Constitution, which obliges the executive to prepare the bill that provides for measures that require public officials to make periodic declarations of their assets .
In its judgment handed down two years after the case began, the court granted an order in favor of Markham. The court ordered that: 1. The first defendant’s failure to formulate within a reasonable time a bill to give effect to the law under section 198(a) of the Constitution of Zimbabwe violates his constitutional mandate . 2. The first respondent is ordered to publish the bill provided for in section 198 (a) of the Constitution of Zimbabwe within three months of the date the court made the order.
Constitutions and anti-corruption
Transparency International has long noted that “a country’s constitutional design can make or break its fight against corruption (2013)”. The problem, however, is that “governments need to make sure that what is promised and promised on paper becomes reality.”
In particular in Zimbabwe, where the new 2013 Constitution is the product of important compromises on key issues of democracy and good governance between those who were interested in maintaining the status quo and those who were fighting for change.
Politics aside, there are more than a dozen provisions in the Constitution designed to curb corruption. The case indicates one of them that obliges public officials to make periodic declarations of their assets. The requirement that public officials disclose their assets and interests is a relatively modern trend.
While initially thought to be a violation of the right to privacy, the approach to disclosure of assets and interests has gradually changed, influenced by decisions by international human rights bodies and growing concern for integrity in administration. (See Open-ended Working Group on the Prevention of Corruption 2018:14). The drafters of the Constitution were probably influenced by international conventions such as the United Nations Convention against Corruption, article 8, paragraph 5.
However, it has not gone unnoticed that the fight against corruption has a very political background. 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 secrecy of the lawthat “the corruption debate is shaped by thinking in binary oppositions: corruption and the law are seen as opposites of each other”.
Furthermore, they 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 appears to be implicated and to support corruption.”
As Markham has rightly pointed out in his application, the only law that has addressed the need for public officials to declare their assets, the Public Entities and Corporate Governance Act, is designed to apply narrowly to a specific group of people. , which excludes all other officials within the public service, thus making it unsuitable.
What then is the impact of the case?
This is a classic case of radical advocacy. The conventional understanding of the concept of separation of powers among the three branches of the state that the judiciary cannot interfere with cabinet (executive) decisions, such as the decision to initiate laws and policies, has been disrupted. Moreover, the concept of separation of powers is itself a fundamental safeguard against corruption, according to Transparency International.
Politicians around the world in low-government countries cannot or will not provide sufficient oversight or regulation of corruption. The trend is only rising, says Transparency International’s 2021 Corruption Perceptions Index. If the executive is not going to carry out his mandate to supervise state-owned companies, he needs to receive a boost from elsewhere.
Going forward, this case will likely influence similar calls for parliament to address deficiencies in existing anti-corruption legislation, which must be aligned with the Constitution to curb corruption that has become institutionalized and integrated into the broader matrix of relations. of power. in Zimbabwe. However, much depends on whether the executive will respect the judgment of the court.
This article is dedicated to the memory of my anti-corruption teacher, Professor Raymond Anthony Koen of the University of the Western Cape, who passed away this week.
Prosper S Maguchu (CAMS), is an assistant professor of law and project manager at the Vrije Universiteit Amsterdam specializing in financial crime and international asset recovery from a human rights-based approach. He writes in a personal capacity.
Opinions expressed are those of the author and do not necessarily reflect official policy or the position of the mail and guardian.