By Tichawana Nyahuma
A CRIMINAL law regime is part of many, if not all, legal systems. One of its useful organs is its “inner legal eye”, (per Professor Lovemore Madhuku). That inner legal eye does not blink or sleep.
It is the device through which the criminal law maintains discipline within society. The concept of punishing those who break the law is the criminal law’s means by which to make offenders pay reparations. Indeed, the prison house at Bindura is aptly titled “Chawagona Hapana” loosely translated to “by being admitted into prison, you have achieved nothing”.
At the workplace — private or public sector, discipline is kept by means of disciplinary processes that have to be conducted in terms of the procedures laid down in the relevant registered code of conduct or some other law. Most industrial sectors in Zimbabwe have registered codes of conduct peculiar to them. Where in a particular sector, there is no registered code of conduct or the said “some other law”, the National Employment Code of Conduct, otherwise known as Statutory Instrument 15 of 2006 comes into play.
In Zimbabwe, the law is that every employment related disciplinary process can only be lawful if conducted following the procedures provided in the relevant registered code of conduct or per the applicable law. When it is said that a code of conduct is registered, it means the particular code would have been submitted to the relevant government department for approval and published in a Statutory Instrument. An unregistered code of conduct does not work.
At law, it is possible to invoke both the code of conduct and the criminal law to deal with an errant employee over the same act of alleged misconduct at the workplace.
To illustrate the point; Njabulo Mufaro (not his real name), is suspected of theft at the workplace. The employer may report the matter to the police where-after Njabulo may be prosecuted in the criminal court for theft. Despite Njabulo being dealt with per the criminal law, the employer may still throw the code of conduct at him resulting in him being possibly shown the door.
Even if the criminal law process ultimately finds Njabulo not guilty, that will not matter. That result will not have a bearing on the disciplinary processes conducted in terms of the code of conduct.
The reason for this rather “strange” state of affairs is that the level of proof required in a criminal case is the so called “proof beyond a reasonable doubt”, itself a very high standard. However, in a civil case, (disciplinary processes fall within the category of civil law even if the charge is one that is criminal in nature such theft), the employer only needs to prove the case against Njabulo only “on a balance of probabilities”, a very low standard indeed.
Well and good so far. However, as regards certain categories of employees, at least as seen through the writer’s “inner legal eye”, there is a problematic issue. The affected employees are those employed by government and semi-government entities including those occupying managerial positions.
The challenges also extend to all those employed in Commissions such as the Zimbabwe Anti-Corruption Commission, the Judicial Service Commission, (including judges and magistrates), the Sports and Recreation Commission and so on.
Public prosecutors and police officers are also in the net. Those employed in parastatals and municipalities are not spared. The problem is that apart from the relevant code of conduct or the applicable law being invoked in the event of allegations of misconduct being preferred against any such employees, the employer may.
It also can, also slap the accused employee with a criminal charge styled: “Criminal abuse of duty as a public officer”. That offence resides in section 174 of the Criminal Law (Codification & Reform) Act (Chapter 9;23), “the Code”.Upon conviction, the affected employee may be jailed for up to 15 years. The crux of this article is an attempt at showing that section 174 of the Code is not good law and to that, I now turn.
Sections 174(1) (a) and (b) of the Code are couched in these terms: “1) If a public officer, in the exercise of his or her functions as such, intentionally
(a) does anything that is contrary to or inconsistent with his or her duty as a public officer; or
(b) omits to do anything which it is his or her duty as a public officer to do; for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both”.
But in the first place, what is, or who is, “a public officer”? The definition supplied in the Code is lengthy, but I propose to shorten it as follows; “a Vice-President, Minister or Deputy Minister; or…. a person holding or acting in a paid office in the service of the State, a statutory body or a local authority…”, per section 169 of the Code, (definitions section).
However, those employed in government owned corporations that are registered either per the old Companies Act (Chapter 24;03) or the new Companies and Other Business Entities Act, (Chapter 24;31) are not public officers. They, therefore, cannot be prosecuted per section 174 of the Code.
For this proposition, I am in good company with the Honourable Mafusire J in the case of Peter Chikumba vs The State, HH724/15. Clearly, there is a problem with section 174 of the Code per its part (b) thereof. That sub-section makes decision making by public officers a daunting exercise indeed.
The sub-section makes it an offence to “favour” or to “disfavour any person”. In doing so, the sub-section does not allege corruption on the part of the public officer making the decision.
In other words, it will not be necessary to prove, during the trial, that the accused unduly benefited from the decision he/she made. In fact, the sub-section makes it an offence to just make the decision, yet the public officer is employed to do precisely that, to make the decision. But then again, omitting to make the decision is also criminalised per section 174(1)(b). My foot!
What the legislature did in enacting section 174 of the Code is to criminalise the work of public officers. In the case of Saviour Kasukuwere vs Hosiah Mujaya & Others HH562/19, the Honourable Chitapi J said of the section; “Criminal abuse of office has connotations of a labour matter. It may aptly be described as an act of misconduct by a public officer which has been criminalised by statute”.
Now was, or is this necessary in a democratic society particularly given that there are codes of conduct and some other laws that are designed to deal with public officers when they err during the course of their work? If one looks at the nature of the work of particularly judges, magistrates, mining commissioners, prosecutors and the like whose duty it is to make decisions especially when they sit as adjudicating authorities, their decisions naturally “favour” one person as against another.
As such, it is contended that such public officers are always in danger of being hauled before the criminal court for “favouring” or “disfavouring” another person merely because the decision maker’s superior does not like the decision made.
Sight must not be lost that discretion is one of the key pillars of many decision-making roles. For instance, and as has already been mentioned, a person convicted for infringing section 174 of the Code may be jailed for up to 15 years. What it means is that the magistrate or judge sentencing the accused has discretion to impose any period of imprisonment, but which does not exceed 15 years. If a judge or magistrate by virtue of his/her discretion then sentences a person convicted of the offence in question imposes a jail term of say, six months but his superior is of the view that a tougher penalty would have been appropriate, it is easy for the sentencing judge/magistrate to be charged with criminal abuse of duty as a public officer because there is no need to prove corruption on the part of the decision maker. It will be recalled that, the late Morgan Nemadire had, during his lifetime as a magistrate, been arrested for sentencing a convicted Venezuelan national to pay a fine of US$700 for possession of 5kgs of cocaine worth US$500 000.00.
Whilst Nemadire might have been wrong in the decision that he made, the remedy ought not to have been his arrest but an appeal against his decision. The avenues of appeal or review exist because it is known that decision-makers, despite qualifications and experience, are not necessarily endowed with Solomonic wisdom which makes them infallibe. What, therefore, are the consequences of the offence under discussion? In my own judgement, public officers then become slow to make decisions to the possible prejudice of the persons involved. If not slow, then they will not make the decision at all which by the way, is itself an offence.
They may prefer that some other authority does so. Further, because of the presence of that offence, public officers are always on the lookout for greener pastures elsewhere which means brain drain from public offices much to the prejudice of members of the public. It is contented section 174 of the Code on the statute books may be a sure way of discouraging many from being engaged as public officers.
To protect themselves against being charged per section 174 in question, public officers may opt to defer to their superiors before arriving at a decision thereby giving up their discretion and independence that is given to them by the law. The list is endless. In light of these observations, it is contended that section 174 of the Code is outlandish and unnecessary. Those sections of the Code that deal with corruption and bribery are adequate measures against delinquent public officers. In my own judgement, section 174 is a bad law. Should it continue to exist in our statute books? I think not.
- Nyahuma is a registered legal practitioner. The views and opinions expressed in this article are solely his own. They do not constitute legal advice of any sort. Feedback; firstname.lastname@example.org.