Home Affairs Minister Kembo Mohadi came for a roasting in the House of Assembly yesterday when it transpired that President Robert Mugabe’s extension of the term of the office of the Zimbabwe Anti-Corruption Commission board was unconstitutional.
He said in a ministerial statement yesterday that the government had only realised after the extension that Mugabe no longer had those powers as they were not vested with Parliament through its Committee on Standing Rules and Orders.
“Upon reexamination, it was realised that the extension was unconstitutional, hence the directive that the chairman wrote and ordering the commissioners not to undertake any work pending the finalisation of the issue,” Mohadi said.
Parliament had wanted a direct role to play in curbing corruption and wanted an ad hoc committee to be set up to look at the appointments of board members for all state enterprises.
The legislators put Mohadi to task with Musikavanhu Member of Parliament Prosper Mutseyami asking: “I need to ask the Minister to appraise this august House as to whether the Executive (and) its entire intelligence did not understand the Constitution to the effect that they had no mandate to extend the tenure of the Anti-Corruption Commission without going through a due process of Parliament.”
The board’s term expired in August last year but members have been claiming allowances ever since. Buhera South Legislator Joseph Chinotimba said the allowances were as high as half a million dollars.
Below is the full debate:
STATUS OF THE ZIMBABWE ANTI-CORRUPTION COMMISSION
THE MINISTER OF HOME AFFAIRS (MR. MOHADI):
Thank you Mr. Speaker Sir. Mr. Speaker Sir, allow me to give a Ministerial Statement on the status of ZACC. Mr. Speaker Sir, prior to the advent of the new Constitution, the Zimbabwe Anti-Corruption Commission (ZACC) was governed by the Anti-Corruption Commission Act and the repealed Constitution. Under these two laws, it was lawful and constitutional, to renew the terms of office for the Commissioners once the term expired without any stipulated procedure being followed.
Secondly, Section 6 (ii) of the Anti-Corruption Commission Act states that “a member shall hold office for a period of two years and may be reappointed for another term of two years but not be eligible for reappointment thereafter”.
When the new Constitution was ushered in last year, the ZAC Commissioners were still in office and later, their term of office expired. This therefore meant that the new Constitution was now the supreme law.
In the review of term of office for ZAC Commissioners; Section 237 of the new Constitution had to be followed. This section sets out the procedure which has to be followed when appointing Commissioners. It states that for the purposes of nominating persons for appointment to the Commission, the Committee of Standing Rules and Orders must “advertise the position, invite the public to make nominations, conduct public interviews of prospective candidates, prepare a list of appropriate number of nominees for appointment and submit the list to the President”.
However, after the expiry of the term of office of Zimbabwe Anti- Corruption Commission, the due process a stipulated above could not start immediately. Further, it takes considerable time to advertise, interview, carry out the necessary evaluation before submitting a list to the President for his approval. Meanwhile, work has to go on. Thus to evade a vacuum, the Commissioners were reappointed in order to do the work as before in terms of the cited Anti-Corruption Commission Act.
Upon reexamination, it was realised that the extension was unconstitutional, hence the directive that the Chairman wrote and ordering the Commissioners not to undertake any work pending the finalisation of the issue. You will therefore agree with me that the harmonisation of laws with the new Constitution is still going on.
Parliament has indicated that it intends advertising the post of Commissioners which I believe ought to have been done when the adverts for the media and human rights commissions were made. Thank you Mr. Speaker Sir.
MR. HLONGWANE: I recall that two weeks ago, we had a discussion in this House on this pertinent matter. I want to check with the Minister whether currently, we do have an Anti-Corruption Commission.
MR. CHIKWINYA: Pursuant to the discussion which Hon. Hlongwane has mentioned which came out of the ruling by the Speaker where Members of Parliament, after debating a motion by Hon. Madzimure that we were proposing an Ad Hoc Committee to deal with corruption, the ruling from the Speaker in consultation with the Standing Rules and Orders Committee was that that was work of the Zimbabwe Anti-Corruption Commission.
My question to the Hon. Minister is that; now that you have alluded to the fact that there is no ZAC because of the Constitutional requirements which you have mentioned. At the same time, the Standing Rules and Orders Committee, through the Speaker said ZAC should be doing the investigations of corruption. How is the nation covered in terms of investigation of corrupt activities considering that Members of Parliament had adopted the motion that we need to have corrupt activities in the parastatals and other institutions to be investigated?
MR. SPEAKER: I am not sure whether I should rule your question out of order. The ruling indicated that there must be a Zimbabwe Anti-Corruption Commission. As to the process, the ruling did not state and when the debate ensued, when the Hon. Deputy Minister of Home Affairs was here; this hon. House was advised that if the Zimbabwe Anti-Corruption Commission had been appointed in terms of a law and that law was consistent with the Constitution, that appointment would stand. If the appointment had not been consistent with the provisions of the Constitution as far as Independent Commissions are concerned, then the hon. Minister would come to this august House and make a statement to clarify accordingly. The hon. Minister has clarified that, that purported appointment was against the new Constitution and he has asked the Parliament to so proceed with the process. I think your question is out of order in that respect.
MR. MUTSEYAMI: I need to ask the Minister to appraise this august House as to whether the Executive in its entire intelligence did not understand the Constitution to the effect that they had no mandate to extend the tenure of the Anti-Corruption Commission without going through a due process of Parliament.
MS. ZINDI: I want to find out from the Minister the period it is going to take in terms of having to align with the requirements of the Constitution while this vacuum exists? What is going to happen in the process?
MR. SPEAKER: Hon. Zindi, are you saying align the enabling Act?
MS. ZINDI: Yes.
MR. MOHADI: Mr. Speaker Sir, the questions that are being asked are as follows: currently, do we have a Commission in place? That is the question asked by Hon. Hlongwane. The next question says that; does the Executive actually understand how to go about these things in terms of the Constitution of Zimbabwe? Do they have enough capacity to comprehend? It is a question that has been asked.
First and foremost, there is no Commission that is in place because Commissions are appointed by the Standing Rules and Orders Committee. What I indicated to you that if there was anything that was done and done at the Executive level, that was unconstitutional. That is what I said in my statement and that stands. The question that you are asking is that, what is going to happen in the interim when there is a vacuum? That question becomes very difficult for me to answer because I do not appoint the commissioners myself. That is the prerogative of the Standing Rules and Orders Committee.
It is this Parliament that has got to advertise and get those people so that they then can work under me. Currently, the ball is in your court, it is not me who has to do that. [HON. MEMBERS: Inaudible interjections] – Well, they might be working but there is always a ministry that they report to. That is why I administer the Act. Yes, so when I administer the Act and you are the chairman of an entity under the Act that I administer, what does it mean? – [MR. MARIDADI: Inaudible interjections.] –
MR. SPEAKER: Order Hon. Maridadi, would you like to be ordered out of the House?
MR. MARIDADI: No Mr. Speaker, I would like to stay in the House.
MR. SPEAKER: Allow the hon. Minister to respond accordingly.
MR. MOHADI: Mr. Speaker Sir, we do understand the provisions of the new Constitution and we do understand how the powers are separated, that of the Executive and the Legislature. Hence, there is nothing that we have done to say these people must be appointed because we do not have the right to appoint them. It is your prerogative to appoint them and hence, I have taken the trouble to come and give you this statement to clarify to you that there is no Commission that has been appointed. So the Commission is still going to be appointed by you, by the Standing Rules and Orders. If you do it today, I will be very happy to work with those people. If you do not do it, then it will still take time. So, the ball is in your court.
MR. HLONGWANE: In terms of process, maybe you can guide us Mr. Speaker Sir, upon expiration of the term of such a Commission that is appointed through interviews by the Standing Rules and Orders Committee, how does it go? Does Parliament necessarily know that the terms have come to an end and therefore, automatically flights advertisements? Or, there is some correspondence to the office of Parliament to the effect that that term has come to an end? How does this actually happen?
MR. SPEAKER: I hope you are not asking the Chair to respond.
MRS. MISIHAIRABWI-MUSHONGA: I have perhaps three specific questions to the Minister.
MR. SPEAKER: Three?
MRS. MISIHAIRABWI-MUSHONGA: Yes, but they are interlinked, Mr. Speaker Sir, just give me an opportunity. It is a follow up to his question. The letter that came from the Office of the President and Cabinet, Dr. Ndlukhula informing the commissioners to continue with the work, has that letter been formally withdrawn by the Office of the President and Cabinet? Have those commissioners now been informed that therefore they do not necessarily have to continue with the work that they are doing? Linked to that, there has been an appointment of an Acting Chief Executive Officer for the commission. That Acting Chief Executive Officer, is he coming in to work with no board, no commissioner and all the investigations that are currently in place right now, what is happening in terms of those investigations because those are supposed to be supervised by a commission?
MR. MADZIMURE: Minister, it was obvious that you knew that the term of the commission was going to expire and according to this Constitution, it emphasises the issue of good governance, transparency and accountability to the extent that as Members of Parliament, we had to move a motion in this House having noticed the vacuum. Minister, the Chairperson of the Anti-Corruption Commission never vacated office. He was still in office but he is a commissioner who, under the Constitution, had to be appointed in the same manner in which all other commissioners were. Why was that allowed to happen when the Constitution is so explicit? Also, the Commission before it left, it should have produced reports and accounts that should have been tabled in this House and that did not happen. Even up to today, there are serious questions about accountability that the commission should answer. Can you also explain what you are going to do about this?
MS. MAJOME: Mr. Speaker Sir, I would like to know from the Minister if the Government has any time frame that it would hope that the people of Zimbabwe can actually have an Anti-Corruption Commission that is in office and that is operating? What is the time frame? Also in relation to that, it is a notorious fact that the previous commission was dogged with money problems, if I may be frank, so…
MR. SPEAKER: The Chair did not quite follow the first part of your question.
MS. MAJOME: It was, while it is understood that it is Parliament that must start the process but does the Government have any time frame as to when it hopes or plans for there to be a commission in office?
MR. SPEAKER: Perhaps the hon. member was not in the House. The process remains with Parliament. The Ministerial Statement explains that.
MS. MAJOME: I understand that, may be let me try to be a bit clearer. The hon. Minister is the one who will be more or less working with the commission but is there any plan in terms of a planning programme when even the Government hopes that it might be in place because it has budgetary implications for example, because there must be money supplied to the commission. I am asking this because the last commission did not really have any money. They were in the papers about property being sold and so on. The thing is, is the Government ready on its part with the resources and with whatever facilities required, so that if and when the Standing Rules and Orders Committee should complete its work, the Government is ready on its part in terms of a time frame and resources?
MR. MOHADI: Thank you, Mr. Speaker Sir. Let me thank the honourable members that have been pleased to ask me questions. The first question from Hon. Misihairabwi-Mushonga says, there has been some correspondence or some correspondence went in between the Office of the President and the Commission, and she would want to know whether that has been withdrawn. First and foremost, if such correspondence has been going on between the two, the person that has got the responsibility to withdraw that letter is the Office of the President. Secondly, some people do not even know how the President’s office and the Cabinet work. I am sorry that I do not have to explain that. – [AN HON. MEMBER: Inaudible interjection.]-
MR. SPEAKER: Hon. Minister, can you address the Chair.
MR. MOHADI: The next question is about the officer that has been seconded to ZEC. The Commission has a secretariat; it does not operate in a vacuum. So if the Commission is not there, the secretariat is there. As to how the officer was seconded, you did say to me that I work with the Zimbabwe Anti-Corruption. So it is not for me to say, ‘go and employ so and so and do not employ so and so.’
Mr. Madzimure said it is reported that the Chairman has never vacated. The Chairman’s term of office is not two years, it is three years. So he vacates office after the lot of the Commission has vacated. That is done for continuity. It does not matter whether the reports were done by this previous Commission or not, but if the reports do come; they will have to be tabled here regardless of the time that they will have taken. We will definitely table them there.
As for the timeframe, I cannot give you that because it is not me who is supposed to appoint these Commissioners. It is the Standing Rules and Orders Committee that there has got to be. If we do it tomorrow and they say, here are the Commissioners that you can work with, fair and fine – I will not work with them but if we take a year, the same will prevail.
So the previous Commission seemed as if it was dubbed with financial problems. You are saying the previous Commission did not have money to operate and to conduct certain activities. The Ministry of Home Affairs which is the one Ministry I superintend over does not do the disbursements. We do not appropriate any money to anybody. The appropriation account is done by different ministries and the disbursements are also done by different ministries. I am also a recipient of what is appropriate to me and what is disbursed to me. I think I have covered all your questions. Thank you.
MRS. MISIHAIRABWI-MUSHONGA: Perhaps the Minister could explain whether the previous Commission has formally been informed by your office that their term of office is finished and that they should leave and vacate the offices, if you could confirm that Hon. Minister?
MR. SPEAKER: May I remind hon. members that I will allow more than three questions because this is a very important subject. So those who are going to ask further questions, they can deal with fundamental questions for clarification by the Minister.
MR. MADZIMURE: Hon. Minister, the guiding book here is this Constitution. According to this Constitution, all Commissioners or whoever we can call a Commissioner should have been appointed after having gone through the due process using the Constitution which we adopted. So the Chairperson, how could you have stayed when the Constitution provides for a fresh Commission to be appointed? Under which law were we keeping the Chairperson?
MS. MAJOME: Mine is in relation to the financial resources of the Commission. I do understand that it is the Minister of Finance and Economic Development who disburses the money but the question is, is there money for this Commission that will be appointed? When it is appointed, does it have resources available so that the minute that it is appointed, it can begin to work?
MR. CHAMISA: Thank you Hon. Speaker Sir. Mine is a very simple one. Considering the fact that the previous Commission, in their attempt to execute their mandate, encountered a problem when they were barred from entering the premises of the then Minister Kasukuwere. Can you assure parliamentarians and indeed the nation, that what we are seeing happening in Government is not a ploy and a strategy by the Executive to switch off the light in the room so that something can be pilfered at night or so that the bacteria can multiply? Can you really assure the nation that it is not an antic or tactic to make sure that something untoward is instituted during this moment of vacuum?
*MR. CHINOTIMBA: My question is a very short one. Does the Minister know that the people that we are talking about are still getting salaries, are entitled to vehicles and are hiring vehicles as well? Last week, I had a letter that reflected that they had a debt of over half a million…
MR. MUKWANGWARIWA: Order Mr. Speaker. The member belongs to Defence, Home Affairs and Security Services Committee. So we had asked the Minister to appear before the Committee next Monday. He is now pre-empting and so he is not supposed to ask.
MR. SPEAKER: Is Mr. Chinotimba in your Committee?
MR. MUKWANGWARIWA: Yes Mr. Speaker – [HON. MEMBERS: Inaudible interjections.] –
MR. SPEAKER: Asi munoda kunditorera chigaro chaMambo here? – [Laughter.]- The august House takes precedence over a Committee and if the question so asked by Hon. Chinotimba is dealt with by the Hon. Minister, therefore it shall not arise in the House.
*MR. CHINOTIMBA: Thank you Mr. Speaker. I thought that I would not actually be in this august House when the Minister presented his statement. Probably the Minister may not be aware that the people that we are talking about are still receiving allowances and are also getting salaries. Last week, we were made to understand that they had a debt of half a million which was used to hire vehicles for operations of their businesses they are engaged in. Is he aware that these individuals are also engaging in corruption which they purport to be intending to root out? Maybe I do not know how to put it, but maybe if there is a middleman who is allowing them to do this and the chairperson is not aware is there any middle person who might also be wishing for the same post as the Minister and that now is embarrassing our Minister? I thank you.
MR. MANDIPAKA: Let me refer my mind to Section 255 of the current Constitution which talks about the functions of the Zimbabwe Anti Corruption Commission. Paragraph (f) says the Zimbabwe Anti Corruption Commission shall ‘refer matters to the National Prosecuting Authority for prosecution’ What I wanted to find out from the Hon. Minister is whether it is the police that is going to compile the docket for prosecution or it is the Anti Corruption Commission which is going to compile the docket for prosecution as it refers the case? There is no clarity in terms of the law I thank you.
MR. MOHADI: Thank you Mr. Speaker Sir. We are talking about the Chairman. It says, does this law which says that after two years people must vacate? Does it not also apply to the Constitution? The people we are talking about were appointed by the old Constitution and they were given those terms. So when the new Constitution was ushered in, they were not dismissed. They were not sent away because they were serving. Then the provisions of that old Constitution still apply and so the Commissioners were two years and then the Chairman was still three years. So that did not apply. Majome is asking if there is money for the Commission.
MR. SPEAKER: Hon. Majome.
MR. MOHADI: She must also call me Hon. Mohadi. So, is there money for the Commission – that I cannot say because it is an Independent Commission and they receive their own disbursements from Treasury and I am not in a position to say they have the money or they do not have the money. The hon. Chamisa – [HON. MEMBERS: Inaudible Interjections] – Chamisa wants to know why the Anti Corruption Commission investigators or those that were investigating cases that pertain to Ministers were barred from entering the premises of the said Ministers. Was it a ploy or not – that is what he is saying. These are operations and I am not responsible for the operations of either the police or the Commission. They operate in the way they want to operate. I do not give them instructions on how to operate. So this is an operational issue and an operational issue must be dealt with in that manner. Hon. Chinotimba – yes, I am not responsible for the operations because I do not know how …
MR. SPEAKER: Order! Hon. Minister please address the Chair just ignore the interruptions. I will take care of them – [Laughter.] –
MR. MOHADI: The main problem is that vamwe vacho ndaitamba navo – [Laughter.] – So I have said the barring of investigating officers getting to the Minister’s office is not my prerogative. It is an Independent Commission and their operational orders come from elsewhere and they do not come from me. So I am not in a position to answer why they did not do so. I am not in a position to do so and even now, I do not have the powers to do so. Chinotimba …
MR. SPEAKER: Order! Hon. Minister, if you could respect the Standing Rules and Orders. It clearly says, members are addressed as “honourables” as well as Ministers are addressed as “honourables”. Please!
MR. MOHADI: Thank you very much Mr. Speaker Sir. I will address them as honourable members because they are very honourable. Hon. Chinotimba wants to know whether these people are still being paid. Still, I do not have an answer to this one because I do not pay them. They are an Independent Commission and have got their own budget which is appropriated differently. The disbursements that go to them, I am not responsible for that. So I will not be in a position to say they are either being paid or not. So forgive me for that.
Mr. Speaker Sir, Hon. Mandipaka – again, I have no answer to your question. They are given their own budget. So I am not in a position to answer. Hon. Mandipaka wants to know – [HON. MEMBERS: Inaudible interjections.] – how the Anti Corruption Commission refers the matters that had been investigated to the NPA. Do they actually compile the docket and take it to the NPA or the police does it? That is his question.
What happens is that the Commission has no arresting powers. The arresting powers are only vested in the Police Force/Service. When they have come across such a case, they investigated it, there is a prima facie case and they want the person to be interrogated; the people that take over to do the docket are the police who then, together with the Anti Corruption Commission take it to the Prosecutor, the National Prosecuting Authority. So that is how it works, there is no way we can have arresting power given to everybody; otherwise it will be a lawless society.
MRS. MISIHAIRABWI-MUSHONGA: Mr. Speaker, he has not answered my question whether the Commissioners have been formally informed.
MR. SPEAKER: Mrs. Misihairabwi-Mushonga, you do not just jump from your seat to the microphone, you simply stand up and wait to be recognised by the Speaker.
MRS. MISIHAIRABWI-MUSHONGA: Thank you Mr. Speaker. I was raising the issue that the Hon. Minister did not respond to my question. Perhaps let me just repeat it, I actually specifically asked whether you have informed the previous Commission that their term of office is over and that they should not be coming to the office? I thank you.
MR. MOHADI: Thank you very much Hon. Misihairabwi- Mushonga. Forgive me for not having answered your question properly. The question as to whether the Commissioners have been informed that their term of office has expired or they should leave office; I did allude in my Ministerial Statement that it is not the Ministry of Home Affairs that employs these people. It is this Parliament that has got the powers to employ these people. I work with them as you rightly said, but I do not supervise them, they do not follow under me, I only work with them. The authority that establishes them should be the authority that tells them that they are no longer needed here. I thank you.
MR. SPEAKER: I think the Hon. Minister has acquitted himself very well and clarified the situation and I want to assure the hon. House that we will proceed accordingly to advertise for the posts and fill those posts and recommendations thereafter to His Excellency the President, so that the Zimbabwe Anti-Corruption Commission is in place within the shortest possible time.