News / National
'Obeying illegal orders no defence for corruption'
12 Nov 2021 at 05:31hrs | Views
The Zimbabwe Anti-Corruption Commission (ZACC) chairperson Justice Loice Matanda-Moyo has warned procurement officers against taking unlawful procurement instructions from their bosses, saying obedience to illegal orders was not a defence.
Addressing heads of procurement management units drawn from independent commissions and ministries, Justice Matanda-Moyo said those who breach the procurement regulations to please their superiors, will rot in jail without any credible defence in court.
"In a court of law, following an unlawful order is not a defence. That you must know. Once you comply with illegal orders, you will be arrested and the court will not acquit you. You will go to jail.
"ZACC will not hesitate to arrest any perpetrators of public procurement offences. You should be able to resist unlawful orders. You must be able to say no," she said.
Justice Matanda-Moyo said there is a procedure to be followed by procurement officers to handle undue influence and pressure from their superiors.
The law, according to Justice Matanda-Moyo, empowers the procurement officers to reject the instructions.
"ZACC does take cognisance of challenges faced by procurement management units where there is lack of independence through the interference of procurement by superior officials.
"I must reiterate that the Public Procurement and Disposal of Public Assets Act provides for procedures to be followed by an accounting officer who is directed by a superior to comply with unlawful procurement instructions.
"Let's make use of those regulations and those sections. Section 16 of the Public Procurement and Disposal of Public Assets Act spells out the procedures to be followed by accounting officers in dealing with unlawful procurement instructions from higher offices or from any other person in authority.
"In view of these procedural guidelines to deal with unlawful procurement instructions, law enforcement agencies and the courts will not entertain any defence of obedience to an unlawful order," she said.
The ZACC boss said institutionalised corruption was rife in the public sector and the procurement teams must be vigilant and be able to protect the public purse at all costs.
"Not withstanding having the relevant Act and regulations to guide our conduct and activities, what is disappointing is the fact that public institutions continue to be characterised by high levels of institutional corruption; lack of proper controls in the institutions, which provide a conducive environment for public officials to engage in corruption, fraud, theft, money laundering and other offences.
"The Auditor General's findings should be a guide to yourselves. If you read annual Auditor General's reports, they continue to expose gross public resources mismanagement and usually, this is done by procurement officers.
"It is worrying to note that recommendations made in the previous audit reports are not being implemented, rather malpractices have worsened. These issues continue recurring annually, showing that corruption is now systematic in our organisations," said Justice Matanda-Moyo.
Entities, she said, are not following proper procurement procedures.
"You must read the procedures and you must be able to follow the procedures. There is no reason to divert from those procedures.
"Sometime there is collusion between procurement officers and suppliers of goods and services to inflate prices.
"You find that tenders are awarded to undeserving service providers. Procurement officers are now leaving the usual suppliers and going for their own. Some of you are even registering companies and awarding tenders to yourselves.
"That is really shameful," she said.
Procurement teams have been urged to be impartial, honest and to maintain independence in the discharge of their duties.
ZACC said when public entities' suppliers of goods and services fail to deliver, procurement units are obliged to institute recovery proceedings to avoid financial losses.
"There is an issue of advance payment for goods and services which has crept in. Once these goods are paid for, they are never delivered.
"I don't blame you for non-delivery but I blame you for non-recovery.
"It is your obligation to ensure that goods paid for, are delivered. Once it's not delivered, you must kickstart the process of recovery.
"You have heard of ZESA paying for transformers which were never delivered. Some councils paid for earthmoving equipment that was never delivered.
"We must make sure that we protect the public purse at all times," said Justice Matanda-Moyo.
The Public Procurement and Disposal of Public Assets Act prescribes the requirement for each entity to set up independent procurement management units but some entities are yet to comply.
"The Auditor General has also reported non-compliance in establishment of PMUs. Some institutions to date, do not have PMUs. In some cases the executive secretary does everything, she is the buyer, receiver of those goods and the distributor of those same goods.
"If these PMUs exist, their functions have been usurped for corrupt intentions by higher authorities within their organisations," said Justice Matanda-Moyo.
Addressing heads of procurement management units drawn from independent commissions and ministries, Justice Matanda-Moyo said those who breach the procurement regulations to please their superiors, will rot in jail without any credible defence in court.
"In a court of law, following an unlawful order is not a defence. That you must know. Once you comply with illegal orders, you will be arrested and the court will not acquit you. You will go to jail.
"ZACC will not hesitate to arrest any perpetrators of public procurement offences. You should be able to resist unlawful orders. You must be able to say no," she said.
Justice Matanda-Moyo said there is a procedure to be followed by procurement officers to handle undue influence and pressure from their superiors.
The law, according to Justice Matanda-Moyo, empowers the procurement officers to reject the instructions.
"ZACC does take cognisance of challenges faced by procurement management units where there is lack of independence through the interference of procurement by superior officials.
"I must reiterate that the Public Procurement and Disposal of Public Assets Act provides for procedures to be followed by an accounting officer who is directed by a superior to comply with unlawful procurement instructions.
"Let's make use of those regulations and those sections. Section 16 of the Public Procurement and Disposal of Public Assets Act spells out the procedures to be followed by accounting officers in dealing with unlawful procurement instructions from higher offices or from any other person in authority.
"In view of these procedural guidelines to deal with unlawful procurement instructions, law enforcement agencies and the courts will not entertain any defence of obedience to an unlawful order," she said.
The ZACC boss said institutionalised corruption was rife in the public sector and the procurement teams must be vigilant and be able to protect the public purse at all costs.
"Not withstanding having the relevant Act and regulations to guide our conduct and activities, what is disappointing is the fact that public institutions continue to be characterised by high levels of institutional corruption; lack of proper controls in the institutions, which provide a conducive environment for public officials to engage in corruption, fraud, theft, money laundering and other offences.
"The Auditor General's findings should be a guide to yourselves. If you read annual Auditor General's reports, they continue to expose gross public resources mismanagement and usually, this is done by procurement officers.
"It is worrying to note that recommendations made in the previous audit reports are not being implemented, rather malpractices have worsened. These issues continue recurring annually, showing that corruption is now systematic in our organisations," said Justice Matanda-Moyo.
"You must read the procedures and you must be able to follow the procedures. There is no reason to divert from those procedures.
"Sometime there is collusion between procurement officers and suppliers of goods and services to inflate prices.
"You find that tenders are awarded to undeserving service providers. Procurement officers are now leaving the usual suppliers and going for their own. Some of you are even registering companies and awarding tenders to yourselves.
"That is really shameful," she said.
Procurement teams have been urged to be impartial, honest and to maintain independence in the discharge of their duties.
ZACC said when public entities' suppliers of goods and services fail to deliver, procurement units are obliged to institute recovery proceedings to avoid financial losses.
"There is an issue of advance payment for goods and services which has crept in. Once these goods are paid for, they are never delivered.
"I don't blame you for non-delivery but I blame you for non-recovery.
"It is your obligation to ensure that goods paid for, are delivered. Once it's not delivered, you must kickstart the process of recovery.
"You have heard of ZESA paying for transformers which were never delivered. Some councils paid for earthmoving equipment that was never delivered.
"We must make sure that we protect the public purse at all times," said Justice Matanda-Moyo.
The Public Procurement and Disposal of Public Assets Act prescribes the requirement for each entity to set up independent procurement management units but some entities are yet to comply.
"The Auditor General has also reported non-compliance in establishment of PMUs. Some institutions to date, do not have PMUs. In some cases the executive secretary does everything, she is the buyer, receiver of those goods and the distributor of those same goods.
"If these PMUs exist, their functions have been usurped for corrupt intentions by higher authorities within their organisations," said Justice Matanda-Moyo.
Source - The Herald
