The Interview Tichaona Zindoga
Many people rightly believe that corruption presents the fight of our lives. Yet overcoming the cancer is not easy, and that the vice could just have metastasised, frustrating those who want to see the back of it. In Zimbabwe, there have been spirited attempts to fight the scourge, witness a number of high-profile prosecutions, but the battle is far from being won. The Herald’s Acting Editor Tichaona Zindoga (TZ) last week chatted with head and director of the Special Anti Corruption Unit in the President’s Office Tabani Mpofu (TM). Below is the conversation:
TZ: First of all, President Mnangagwa has spoken about the difficulties and the complexities of the anti-corruption fight.
He said he underestimated the depth and the crusade nature of corruption in Zimbabwe and also to the people that are tasked at fighting corruption. In your view as the Special Anti-Corruption Unit in the President’s Office (Sacu) Mr Tabani Mpofu, can you respond to the issues that the President addressed.
TM: Yes, I think the President is 100 percent correct in saying corruption is deeply rooted in our spheres and spheres of activity, entity. It is not just Government, but it goes beyond as well. But, coming back to what the President said, in our experience, we have seen those who are corrupt. Those who are in corruption are represented at every step of the criminal justice system. And getting matters to court is a process that involves jumping many corruption huddles. So yes, the President is 100 percent correct, it’s not a problem that can be swatted away very easily.
TZ: We have seen over the years that there have been so many high-profile figures, so much talk about arresting and stopping corruption, but very few convictions have been effected.
How do you explain that? Have we failed as a country to deal decisively with corruption at the criminal justice level?
TM: I think that when we look at the subject, yes we have heard the complaint from the public.
There are no convictions, but if we look at it in context, we see a certain potent image. Prior to November 2017, arresting of high-profile figures was rare, if not non-existent. It’s not that corrupt people were being arrested and taken to court and there were no convictions.
There were simply no arrests at all involving high-profile figures. Come November 2017 and its immediate aftermath, we started seeing the arrest of so-called high-profile figures, influential politicians, but as the President indicated in June last year, there was a realisation from his office that even though these high-profile figures were arrested, the matters were not commencing in court.
In other words, accused persons could be on remand and kept on remand for a long time that the courts then remove them from remand and from the criminal justice system and out of the public eye. Then the President made an intervention in order to ensure that those matters are prosecuted in court.
My unit was appointed on the 9th of June last year and our immediate task was to ensure that those pending matters that have been pending for 8 months are immediately allocated trial dates.
One of the first cases that we dealt with was the Wicknell Chivayo case. We put it before the courts and we have been battling with it since August of 2018 to get the matter commenced. There were many applications of the accused in Chivayo case, all of them in our view, I must say, that his case in not an isolated one. You will see that all the cases that we have put before the court have been well met with many court applications by accused persons seeking either to curtail proceedings or have them delayed.
Coming back to your question, we now have a situation whereby these matters are not simply being left at arrest stage or remand stage, but the accused persons are now being brought before the courts for trial. There is now an effort from the State to prosecute these cases and all the cases that have been brought have been met with applications to delay them from commencing.
TZ: So in that case I want to ask whether you have the capacity to prosecute corruption?
TM: Maybe let me correct the misconception that maybe in the public domain, we prosecute under the authority of the Prosecutor-General, and it is in his sole authority at which we are able to prosecute in court.
Now in terms of capacity, we do not act in isolation, as an isolated band of prosecutors going about prosecutions independent of the legal structures of our Constitution. We prosecute under the Prosecutor-General’s Office. In terms of our prosecution and I will state it now, the Prosecutor-General’s Office and us combined have the capacity to handle any case of whatever nature that is brought and can be and will be brought before our courts. So this is not an issue of capacity.
TZ: There have been some concerns that have been raised at the lower courts which have had the effect of disabling or actually defeating your calls. Do they not suggest improper prosecutions, possibly at worst personal vendettas as has been called out by some judges?
TM: The vigour with which the prosecuted are pursuing attempts to stop prosecutions in courts ought to give the public a clear view that these accused persons for whatever reasons are not desirous to their cases being heard in open court.
Now, we are bound by the law and the procedures that emanate from the law. We cannot jump them, we cannot short circuit them, and accused persons have constitutionally enshrined rights to prosecute their defence in a manor prescribed by the law.
What this means is that prosecution of criminal matters, especially involving accused persons also means that they must acquire for themselves legal representation of the highest calibre the country can offer because these people have their rights.
They will take advantage of those procedures that we have within our law to defend themselves and we cannot circumvent those. Now, when an application for an exception for instance is brought before the law, a presiding magistrate or judge is constrained by the law from giving impromptu decisions that are not considered or which do not consider all the legal aspects raised by the accused persons.
We cannot short circuit proceedings, court proceedings are not a football match that is prescribed 90 minutes. They will take as long as the subject and the argument raised in those cases take to be decided. So in terms of, there have been more convictions as you have correctly observed, it is because we are going under processes that cannot be circumvented when going through trials. Now, we only started operating in June last year and most of our cases that we are dealing with are very complex ones.
It’s not a shoplifting case were theft of oranges or bananas has been made. These are complicated cases that will have to undergo legal handles during the trial processes and we are happy with the progress that we have made so far.
The vast majority of the cases that we have dealt with have actually reached a stage whereby we as the State are ready to commence prosecuting them. And, we have approached the courts for the commencement of their trials. With time, we will complete them, and we will get convictions I’m sure.
TZ: But taking you back to the arena of the courts, one would think that there is bad blood between the State and the judges and magistrates in this critical area of fighting corruption. How are officers of the courts relating to each other in this critical matter?
TM: The roads of different parties in criminal proceedings are defined in the Constitution. I don’t think that it’s a matter of us seeking favours from the Judiciary, magistrates or judges. They play the role of referees, they are a neutral part in a dispute that is brought between the State and those that are accused of criminal conduct. To that extent, for the Judiciary to provide judges and magistrates were there are requested to man the courts before criminal proceedings are brought or I wouldn’t say that we require them to cooperate with us beyond what their roles are as prescribed by the law. Yes, there have been decisions that have left us with a sense of (. . . inaudible) in the courts but we are focussed on the cases that are before us and we will be bringing them before the courts and we have found that whenever we have matters for trial, there are judges and magistrates.
Other issues I cannot comment on at this stage, but we say that were we feel that there is ground to suspect that certain decisions were not being handled in a professional manner. We will refer them to the relevant authorities for investigations.
TZ: I want you to speak about the legality of your unit. There were issues about the legality of your unit and now speaking about that, and in relation to the Prosecutor-General, what is the interplay of those roles?
TM: Let me emphasise that we prosecute with the sole authority of the Prosecutor-General, as enshrined in the Constitution. It is not possible for us to use it, but with the authority of that office, its very possible for us to prosecute matters in court.
Now coming to the legality of our appointment. We were appointed with certain terms of reference, one of it is to prosecute cases before the courts, and for that to happen, our terms of reference are very clear. We are only able to prosecute with the authority and approval of the Prosecutor-General. Its in the independence that he holds as enshrined in the constitution.
We are not using the powers of the Prosecutor-General, we are in daily and active consultation with the Prosecutor-General in every case that we have dealt with and it’s him who decides whether we can then prosecute or trial. How we prosecute to trial — each officer is responsible for each case that goes before a judge or magistrate.
The issue of legality of our unit was challenged by Nyagura, when we attempted to commence his case in September 2018 and it was decided by the Constitutional Court. And as a result of the decision by the Constitutional Court, we are now able to prosecute Nyagura for his case and the case is as I speak to you, before the courts. Ready to commence.
TZ: It’s been a bumpy ride since last year when you were appointed. Where to from here?
TM: We remain focused and we are staying the course in receiving complaints and prosecuting corruption cases in the courts.
We do not expect it to be an easy ride, to be a process that is short in life span. We expect that those accused persons that we will be bringing in the court will mount very aggressive forms of defence against the cases we bring against them.
We are prepared for them, we are not going to complete them all tomorrow, or in the next two or three months, but what we can assure the public is that we are focused.
The cases have started, the cases will be prosecuted and they will be prosecuted vigorously. And we are confident of procuring convictions in each and every case that we bring before the courts, otherwise we wouldn’t prosecute them.