Selective application of law in Zim problematic

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Zimbabwe’s media have in the last two weeks been awash with serious corruption allegations levelled by the Zimbabwe Anti-Corruption Commission (Zacc) against the Higher Education minister Jonathan Moyo.

In his defence, Moyo has denied most of the allegations, tried to explain others, but generally accused his detractors of pursuing a tribal and factional agenda.

There is the widely held opinion that the discrimination card that Moyo is raising is totally without merit. It is the philosopher Bertrand Russell who reminds us that: “The fact that an opinion has been widely held is no evidence to whatever that it is not utterly absurd; indeed, in view of the silliness of the majority of mankind, a widespread belief is more likely to be foolish than sensible”.

To be sure, corruption is not a small issue to be brushed off. Indeed, Transparency International Zimbabwe (TIZ) alleges that the country loses US$1 billion annually through corruption. TIZ adds that the police and government officials are the worst offenders.

The US$1 billion mentioned by TIZ is no small amount as it represents 25% of Zimbabwe’s annual budget and would be gladly welcomed by some hospitals in the country that are teetering on the brink of collapse. Corruption, therefore, not only robs the fiscus of resources but also threatens national development.

Moyo is accused together with his deputy Godfrey Gandawa of abusing US$430 000 which was meant for the Zimbabwe Manpower Development Fund (Zimdef). According to the accusations by Zacc, this money was used to pay personal loans, buy personal furniture and, among other purposes, pay journalists. Zacc alleges that the money would first be deposited into the account of a company called Fuzzy Technologies which is owned by Moyo’s deputy Gandawa. From the Fuzzy account, various people would then be paid for what seems to be personal business.

One does not need to be a rocket scientist to appreciate that the depositing of funds into the Fuzzy account takes fuzziness to new heights and is replete with conflict of interest issues. It should be a matter of serious public concern that Gandawa uses his personal company to conduct business with a ministry that he is literally responsible for.

Persons in positions of responsibility have a duty to serve with integrity. This means they have to be engaged in responsible decision-making; are accountable for their actions; and avoid conflicts between their professional and private interests. Conflicts of interest invariably compromise the employee’s objectivity, independence and indeed honesty.

When he was bombarded with questions on Twitter, Moyo responded in all sorts of ways. One Twitter blogger, after much prodding, elicited a most interesting reaction from Moyo. The minister said something to the effect that it was better to be a Robin Hood than a corrupt murderer, in apparent reference to his factional enemies within Zanu PF.

The minister’s remark triggered a lot of varied reactions from Zimbabwe’s Twitter sphere. Moyo has also sought to argue that the money was channelled towards Zanu PF programmes (eg million-man march, First Lady Grace Mugabe’s rallies, Zanu PF youth fuel, bicycles for chiefs in Tsholotsho); and that he is being discriminated against.

The Robin Hood insinuation, however oblique, is laughable because Zimdef is not a fund for the rich; Zimdef funds must be used for manpower development. The minister, as a trustee, is entrusted to use the funds responsibly and do so on the advice of the National Manpower Advisory Council (Namaco). There is no evidence to suggest that Namaco was aware of what the funds were used for and, even then, it is hard not to see the glaring freebies extended to the ruling Zanu PF.

The argument that he is being discriminated against deserves a second look. It must be said from the onset that anybody who is anybody will know that to argue that “he did it too” was never a good justification with one’s parents when in trouble, it is also pretty hard to sustain in public office.

However, the allegations of bias against Zacc cannot simply be ignored. Zacc enjoys the presumption of legality and, therefore, ought to behave in a way which does not raise suspicion about its conduct. There must always be the belief that the constitutional body is acting legally and in good faith. This is especially important in Zimbabwe where certain individuals, organisations and a political party seem untouchable.

The questions around the selective application of the rule of law should continue to be raised even when that selective application affects an individual that we do not like. That way we are true to our principles. There is selective application of the law when a law, even as it is impartial, is applied in a discriminatory way and is enforced based on the identity of an individual and organisation.

The Auditor-General in Zimbabwe every year produces a report which shows in some cases rampant looting running into hundreds of millions of dollars in parastatals.

Early this year President Robert Mugabe lamented that US$15 billion of diamond money had vanished into thin air. A former local government minister has acquired so much property, including housing stands, all over the country whose total value is just astounding, looking at his monthly salary. Cuthbert Dube, a former CE of the Premier Service Medical Aid Society (Psmas) who retired in 2014 after being at the helm since 1992, was earning a salary of US$230 000 a month excluding other benefits which, if added to the salary, pushed the earnings to almost US$500 000 a month.

Psmas, it must be pointed out, is a government-controlled medical aid society which at the time catered for more than 600 000 employees, mostly civil servants and the uniformed forces. While the management at Psmas was living large, the medical aid was failing to pay doctors who would have attended to civil service patients.

One would have thought that the board would clamp down on this rampant looting, but they seemed to be part of it too. For example, Mugabe’s spokesperson George Charamba, who was a board member, is reported to have pocketed US$100 000 in 2013 alone for attending board meetings.

Coming to Zimdef specifically, an audit revealed that between January 2011 and February 2015 an amount of US$2 107 573 was spent on luxury vehicles. The audit found that the then Higher Education permanent secretary Washington Mbizvo used Zimdef funds to pay workers at his Woodlands Farm and he also made numerous donations using the funds.

Zimdef CE Frederick Mandizvidza got a US$35 000 loan to renovate his house in 2013. Former higher education minister the late Stan Mudenge received 10 500 litres of fuel while another former higher education minister Olivia Muchena received 6 000 litres of fuel in a period of four months, all purchased through Zimdef. None of these people were investigated or even at the least required to report to Zacc offices to explain themselves.

The rule of law’s integrity is predicated on the enforcement of law without fear or favour. Once this does not happen, then the rule of law does not exist at all even if robustly applied to some. It is like the violation of human rights; you just have to violate the rights of one individual, not everyone’s, to lose your status as a democratic society. The commitment must be to consistently apply the law.

There must be confidence that the law applies equally to all and it matters a lot who is doing the prosecution. Zanu PF has a very long history of corruption scandals, and allowing those implicated to mostly go scot free without being put to their defence even in the presence of what appears to be overwhelming evidence. Without condoning allegations of corruption around Zimdef, it is difficult to get excited with what seems to be selective prosecution of individuals especially against a background of years of questionable practices at Zimdef and elsewhere that have been totally ignored. The inconsistency in the enforcement of law gives rise to unequal treatment and hence unfairness.

It is possible to condemn discrimination in the enforcement of law without condoning corruption. Indeed, for the avoidance of doubt, corruption must not be condoned and must be fought tooth and nail. Although the law itself may be impartial, if it is applied in a partial way it raises critical questions about the legitimacy of that law. Selective application of law enforcement is an abuse of power and in the end may amount to no law.

The enforcement of the rule of law is not to be shrugged off lightly as it is at the heart of the principle of equality before the law. A critical constitutional institution like Zacc and indeed the police and even the courts must be impartial in the execution of their duties and do their work without favour, fear or prejudice. They have an onerous responsibility requiring high standards of integrity and credibility.

There is wisdom in the dictum: “The law cannot make a man love me, but it should keep him from lynching me.”

Makombe is a development worker based in Johannesburg and writes in his personal capacity. — pfmakombe@yahoo.com

3 thoughts on “Selective application of law in Zim problematic”

  1. rowell nhau says:

    so what are u saying Makombe? Are u saying if one is caught stealing he should not face the law because those who stole before him were not caught? Should a police officer not arrest a thief because he was not able to arrest the thieves who committed similar crimes before? U seem to imply that since action was not taken on previous and any other thieves then no action should be taken on this thief! If it was advice to ACC it would make sense if your article could have seen the light of the day when the said thief is locked well behind bars because preaching about selective justice today simply defeats today’ justice.

    1. bexilford says:

      It is clear that he means all crimes should be treated the same irrespective of the offender. All those who dipped their fingers on Zimdef should be investigated as all heads of all Parastatalls who took funds and gave them to ZanuPf or to Mugabe’s birthday celebrations or to his daughter’s wedding. Zimbabwe has had many Parastatal heads who gave themselves mouth watering pay which would stand out in companies worth billions. Should the head of Psmas not be investigated for paying himself more than The head of British National Health Servise. May I also remind you that the current head of Zacc is revenging what Jonathan Moyo did to him when the latter was minister of information in 2015 when he clamped down on Salarygate. Just Google the two names and 2015, you will be better informed.

    2. bexilford says:

      Just google Goodson Nguni 2015. You will learn a lot about what is driving Zacc on Moyo. Nguni is about to achieve his vow to destroy Moyo by any means. Also look at his High Court case in May 2015 to Illuminate this chap.

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