News / National
'Anti-Corruption Commission has no arresting powers' - Legal experts
29 Apr 2018 at 17:34hrs | Views
HARARE - Legal experts have said the Zimbabwe Anti-Corruption Commission (Zacc) has no powers to arrest suspects and can only do so with the assistance of members of the Zimbabwe Republic Police (ZRP), most of whom would have been seconded to the organisation.
The anti-graft powers were put to test last year after former Higher and Tertiary Education minister Jonathan Moyo and his then deputy Godfrey Gandawa approached the Constitutional Court(Con-Court) challenging the organisation's powers to arrest a suspect.
This comes after the two were arrested for allegedly siphoning over $400 000 from the Zimbabwe Manpower Development (Zimdef).
In the Moyo case, the Con-Court said that a police officer seconded to Zacc has the powers to arrest, but ordered his challenge on the arresting part to be determined by the magistrates' court.
Constitutional law expert Lovemore Madhuku said that in terms of the Constitution, Zacc members have no powers to arrest an individual.
"The Constitution is very clear that the Zimbabwe Anti-Corruption Commission cannot arrest, but the Constitutional Court did accept that officers from the Zimbabwe Republic Police seconded to Zacc have powers to arrest. They don't lose their powers when seconded to Zacc.
"In the Moyo case, the person who arrested him was a police officer. In order for members of Zacc to effect arrest they have to have a member of the police with them, who will arrest. But it you are an official from Zacc, you cannot arrest," Madhuku said.
Zacc is one of the over five independent Commissions that are critical in various activities aimed at combating corruption, promoting transparency and accountability in public institutions as well as entrenching human rights and democracy.
It has been facing major setbacks, amid allegations of selectively investigating citizens and failure to make a mark. It has also been accused of investigating petty issues, while leaving the "big fish" walking scot free, either because of their political links or because of their financial muscle.
Zacc is like the South Africa's Hawks, which deals with organised crime, economic crime, corruption, and other serious crimes referred to it by the president or the South African Police Service (Saps), which is equivalent to the ZRP.
The anti-graft body in Zimbabwe is established in terms of Section 254 of the Constitution and its functions 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 (NPA) for prosecution, to require assistance from members of the police service and other investigative agencies of the State, 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".
The Constitution further says the commissioner-general of police must comply with any directive given to him or her by Zacc.
"The Government must ensure, through legislative and other means, that the Zimbabwe Anti-Corruption Commission has 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," the Constitution further states.
It is against this background that another legal expert Jeremiah Bhamu told the Daily News on Sunday that even though Zacc officials do not have powers to arrest, they can order, through the police, the arrest of a suspect.
"The arresting powers of the Zimbabwe-Anti Corruption Commission are not spelt out in the Constitution. What the Constitution says Zacc can do are two things, it can forward information to the commissioner general of police to investigate or refer a matter to the National Prosecuting Authority to prosecute.
"If it wants to affect arrest, it has to get the services of the police to do so. It is more or less what the immigration does when it wants to effect an arrest, it seeks the services of the police. This means that Zacc works hand in hand with the police and the NPA," Bhamu said.
The anti-graft powers were put to test last year after former Higher and Tertiary Education minister Jonathan Moyo and his then deputy Godfrey Gandawa approached the Constitutional Court(Con-Court) challenging the organisation's powers to arrest a suspect.
This comes after the two were arrested for allegedly siphoning over $400 000 from the Zimbabwe Manpower Development (Zimdef).
In the Moyo case, the Con-Court said that a police officer seconded to Zacc has the powers to arrest, but ordered his challenge on the arresting part to be determined by the magistrates' court.
Constitutional law expert Lovemore Madhuku said that in terms of the Constitution, Zacc members have no powers to arrest an individual.
"The Constitution is very clear that the Zimbabwe Anti-Corruption Commission cannot arrest, but the Constitutional Court did accept that officers from the Zimbabwe Republic Police seconded to Zacc have powers to arrest. They don't lose their powers when seconded to Zacc.
"In the Moyo case, the person who arrested him was a police officer. In order for members of Zacc to effect arrest they have to have a member of the police with them, who will arrest. But it you are an official from Zacc, you cannot arrest," Madhuku said.
Zacc is one of the over five independent Commissions that are critical in various activities aimed at combating corruption, promoting transparency and accountability in public institutions as well as entrenching human rights and democracy.
Zacc is like the South Africa's Hawks, which deals with organised crime, economic crime, corruption, and other serious crimes referred to it by the president or the South African Police Service (Saps), which is equivalent to the ZRP.
The anti-graft body in Zimbabwe is established in terms of Section 254 of the Constitution and its functions 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 (NPA) for prosecution, to require assistance from members of the police service and other investigative agencies of the State, 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".
The Constitution further says the commissioner-general of police must comply with any directive given to him or her by Zacc.
"The Government must ensure, through legislative and other means, that the Zimbabwe Anti-Corruption Commission has 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," the Constitution further states.
It is against this background that another legal expert Jeremiah Bhamu told the Daily News on Sunday that even though Zacc officials do not have powers to arrest, they can order, through the police, the arrest of a suspect.
"The arresting powers of the Zimbabwe-Anti Corruption Commission are not spelt out in the Constitution. What the Constitution says Zacc can do are two things, it can forward information to the commissioner general of police to investigate or refer a matter to the National Prosecuting Authority to prosecute.
"If it wants to affect arrest, it has to get the services of the police to do so. It is more or less what the immigration does when it wants to effect an arrest, it seeks the services of the police. This means that Zacc works hand in hand with the police and the NPA," Bhamu said.
Source - Daily News
