SOMETIME in 2004, when the seismic tremors of economic collapse hit the financial sector in Zimbabwe, a number of corporate executives were specified by the government.
The specifications were executed in accordance with powers given to the Minister of Justice under the Prevention of Corruption Act (‘PoCA’).
Simultaneously, a number of companies were acquired by the government. Given the pattern of arrests and detention, some of the specified executives fled the country. Others were not so lucky and found themselves languishing in prison for many moons. But when they too got the windows of opportunity, they did not stay a day longer. Vakarova pasi (They literally hit the road).
This year, media reports suggested that some of the specified persons had been recommended for de-specification. But Mutumwa Mawere of the Africa Resources Ltd business conglomerate was one notable exception.
Mawere did launch legal proceedings challenging the specification by the Minister. This challenge failed, both in the High Court and the Supreme Court. His case and the decisions of the courts provide good ground to scrutinise the constitutionality of specification.
Moxon, Chanakira & KMAL
It’s important because this creature called specification has once again raised its ugly head, at a time when Zimbabwe is trying to capitalise on the goodwill being generated, albeit slowly, by the new inclusive government. The persons affected are John Moxon and KMAL, the latter being one of the largest companies listed on the Zimbabwe Stock Exchange.
The latest saga has a sub-plot, involving an apparently acrimonious relationship between John Moxon and Nigel Chanakira. The two men were the respective heads of the formerly separate companies, Meikles and Kingdom Bank, which had merged a few years before in what was celebrated at the time as a beautiful marriage.
As it happened, the marriage did not last long and the two have become bitterly estranged. As with most break-ups, there has been a lot of filthy laundry washed before the public gallery. It is in these unpleasant circumstances that Moxon and the companies associated with him have become specified persons under the orders of the minister.
It seems to me that the PoCA is an example of an otherwise noble law, created for good reasons but is prone to and has been misused in ways that cause more harm than good. It’s important to shed some light on the meaning and implications of specification.
Specification essentially means that a person who is specified ceases to have independent control of his economic affairs. Instead, he is placed under the authority of an administrator, who is appointed by the specifying Minister. It’s important to note that at law, a person includes a corporate entity, such as a company, hence the specification of companies associated with Moxon.
To be sure, specification is indeed a drastic measure against a specified person. His hands are tied. His feet are stuck. Akasungwa mbira dzakondo (He is literally bound hand and foot). He can do little without the authorisation of the administrator. Consequently, specification entails that the constitutional freedoms of a specified person become severely emasculated.
In terms of section 6 of PoCA, the powers of specification are deployed against a person whom the minister “reasonably suspects” of having committed corruption-related offences listed under that provision. The key standard that the Minister must, therefore, satisfy before specifying a person is reasonableness. It can’t just be a mere suspicion or rumour – the suspicion has to be reasonable.
The standard test for measuring reasonableness is objective. This is a more robust measure than a subjective test. It is designed to minimise the risk of imposing subjective judgement against persons and, therefore, the abuse of power.
But a standard of reasonableness in a statute is not enough on its own, unless there is an independent authority to adjudicate whether or not the Minister’s suspicion meets the criteria of reasonableness. Otherwise there is ample room for the minister to misuse and abuse his powers but still claim to be acting reasonably.
What Zimbabwe needs is a competent and independent authority to provide a specified person with the chance to challenge the reasonableness of the specification. The trouble is that the present law, PoCA, does not provide for such a facility. The specified person has to seek judicial review of the Minister’s decision, a process that can be lengthy and very costly.
Instead, the law only allows the specified person to put his case to the administrator, whom as we have seen above, is a ministerial appointee. When the veil between them is lifted, it’s apparent that the administrator is effectively the agent of the minister. As we have seen in the case of Mawere, where Arafas Gwaradzimba is the administrator, there could easily be vested interests which prevent the administrator from acting independently and impartially as far as the specified person is concerned.
It is clear from the above that there is a problem with the issue of fairness, i.e. whether or not the specified person can actually get a fair hearing from the administrator, who is likely to prioritise the interests of the Minister. It’s tantamount to asking an accused person to seek a fair hearing from his prosecutor. It can’t be fair.
Lack of time-frames
In addition, there are no specific time-limits as to when the specified person can get a hearing from the administrator. The administrator is entrusted with the power to investigate and it is only during that investigation that the specified person can argue his case before the administrator.
You would think given the drastic consequences of specification on a person’s freedoms, that there would be specific time limits so as to more effectively protect the rights of the specified person.
That indeed is part of the rationale in criminal cases where if the police arrest a person, they are required to bring him before an independent court of law within a specific period and if they wish to detain him further, they would have to get the court’s permission. This is over and above the requirement that the police can only arrest a person upon reasonable suspicion that he has committed or is about to commit an offence. The whole point of this requirement is to afford the accused person a chance to be heard by an independent authority (the court) other than the police who would have arrested him.
Indeed, it is a requirement of the law, emanating from section 18 of the Constitution that an accused person must be advised of the details of the offence against him. It enables him to consider and challenge, if necessary, the reasonableness of that suspicion.
Yet, as the Supreme Court stated in the Mawere case, “There is no requirement for the Minister (under PoCA) to state the grounds for specification in the notice or to give the basis of the suspicion” (at page 17 of the judgment). It is difficult to understand how such a law can stand the constitutional test under section 18 whose purpose is to give persons the protection of the law. If the Minister is confident that his grounds for specification are reasonable, why should he not be required to state those grounds in the notice?
Specification without Notice
In the Mawere case, the Supreme Court appeared to justify the position of specification without notice by stating that giving notice to the specified person would defeat the purpose of specification “as this would give the person an opportunity to take whatever action he could to frustrate the intended investigations”.
What the Supreme Court overlooked is that there are other effective legal means available to ensure that a person under investigation does not tamper with evidence or witnesses. If the reasoning of the Supreme Court were to be accepted, it would open the way for such hideous methods as preventive detention which are normally confined to situations where a state of emergency has been declared.
It would give ammunition to those who advocate for investigative detention, where persons are arrested without sufficient evidence, something that is repugnant in any modern society. It is prone to abuse and that indeed is the risk with specifications for the purpose of carrying out investigations.
It is not clear why the PoCA is so special that a drastic measure such as specification can be used in order to facilitate investigations. The standard rule must surely be that a person can only be deprived of his civil liberties, which specification does, only in those instances where there is reasonable suspicion that an offence has been committed and the specified person has an immediate right of recourse to an independent court to challenge that specification, in the same way that accused persons in criminal cases have a right of recourse to the courts upon arrest.
Even in cases where a person is to be declared insolvent or liquidated so that the person’s affairs are to be managed by an administrator, the decision is made by a court of law after due consideration of evidence.
In the Mawere case, the Supreme Court rather astoundingly tried to equate specification of persons under PoCA by a Minister to provisional orders that are issued by the courts. Justice Cheda, delivering the judgement stated at page 13,
“The specification is no different from any other provisional orders made in our courts where it is feared that investigations may be jeopardised if prior warning is given to the person involved.”
With respect, this was an erroneous equation. Provisional orders are granted by courts, that is, independent adjudicators that have the legal competence to do so as provided for by the law. By contrast, specification is executed by a Minister, who is not and cannot be said to be an independent authority in such cases.
The learned judge’s attempt to equate provisional orders and specifications would have made sense if provisional orders were granted by an interested party such as the Minister or other administrative authority as is the case with specifications. But they are not. Unlike specifications, they are granted by the courts. Whoever seeks a provisional order even if he is a Minister must approach a court of law.
And there is a good reason why such provisional orders are granted by the courts. It is to ensure that there is impartiality and fairness by a neutral authority. That is not the case where the specifying minister is an interested party.
When parliament framed the PoCA, it had good intentions. It sought to minimise the incidence of corruption. But it is now clear from experience that the law has weaknesses; loopholes that leave it open to misuse and abuse. It may have been thought that specification is a less drastic measure; an administrative measure that would be deployed reasonably and decently. Yet experience suggests that this is a measure that has drastic effects not too dissimilar to arrest and detention considering the impact on a person’s freedoms.
The fact that the rights and interests of a specified person are so exposed to the whims of the Minister and the appointed administrator means the specified person can be left in limbo for a lengthy period of time whilst at the same time being prevented from exercising his freedoms.
The right to own and enjoy one’s property is a fundamental one; one in fact without which the enjoyment of all other freedoms is severely affected.
The Supreme Court had an opportunity in the Mawere case two years ago to scrutinise the constitutionality of these provisions, taking into account the practical reality. In that case, the Supreme Court did not find illegality in the specification. It did not find gaps in the law warranting changes.
It must be hoped that in future cases, if any, the Court will revisit the issue and consider the nature and implications of the provisions permitting specification, especially in light of the lived realities of the specified persons.
Potential investors consider the manner in which the law is used by the authorities. The specification of a listed company cannot help Zimbabwe at this time, when it badly needs more investment. It sends the wrong message and courts ought to demonstrate that they will not stand aside and permit the abuse of powers under an otherwise legitimate law.
Dr Alex Magaisa is based at the Kent Law School, University of Kent and can be contacted on e-mail email@example.com