Mudenda says Parliament cannot violate constitution- no ad hoc committee on corruption

Speaker of Parliament Jacob Mudenda yesterday ruled against a resolution by the National Assembly to adopt a motion to appoint an Ad Hoc Committee to thoroughly inquire into and recommend measures to restore corporate governance and investigate cases of corruption in private and public entities.

Parliament, in a rare show of unity, had adopted the motion moved by Kambuzuma Member of Parliament Willias Madzimure of the Movement for Democratic Change and later amended by Mutasa South legislator Irene Zindi of the Zimbabwe African National Union-Patriotic Front to set up a committee to look into corruption and good governance within the public and private sectors.

Mudenda said the setting up of such a committee violated the constitution because there was already a body- the Zimbabwe Anti-corruption commission- which did the same job.

“Parliament cannot be seen to be the one to be violating the very Constitution it makes by creating an ad hoc Committee that competes with, and usurps the functions of, that organ of the state. The spirit of competition is highly discouraged amongst state entities and as such, it is encompassed in the basic values and principles governing public administration found in Section 194(1) (g) of the Constitution under which it is required, ‘that institutions and agencies of Government at all levels must co-operate with each other’.

“Therefore, the Ad Hoc Committee envisaged to be established in accordance with the motion by Hon. Madzimure, as amended by Hon. Zindi, would usurp and interfere with the already existing functions of the Zimbabwe Anti-Corruption Commission. However, Parliament has a constitutional mandate to exercise oversight on the Zimbabwe Anti-Corruption Commission through annual reports submitted to Parliament in terms of Section 323 of the Constitution in order to ensure that it carries out its constitutional mandate as outlined in Section 255 of the Constitution of Zimbabwe,” he said.

Full ruling:

MR. SPEAKER’S RULING AD HOC COMMITTEE ON THE RESTORATION OF CORPORATE GOVERNANCE IN PUBLIC ENTITIES

MR. SPEAKER: On the 8th April 2014, the National Assembly adopted the motion by Hon. Madzimure, Member of Parliament for Kuwadzana Constituency, as amended by Hon. Zindi, Member of Parliament for Mutasa South Constituency, to appoint an Ad Hoc Committee “to thoroughly inquire into and recommend measures to restore corporate governance and investigate cases of corruption in private and public entities and any other relevant matter”.

Standing Order 157 of the National Assembly provides that: whenever it appears to the House that it is necessary to appoint an Ad Hoc Committee to carry out any task and the House has resolved, the Committee on Standing Rules and Orders shall appoint the members of the Committee and give it its terms of reference.

The Committee on Standing Rules and Orders is established in terms of Section 151(1) of the Constitution of Zimbabwe and is appointed in terms of Standing Order 14 of the National Assembly for the purpose of, inter alia, supervising the administration of Parliament, considering and deciding on all matters concerning Parliament and appointing all joint or separate Committees of the Houses of Parliament.

Pursuant to the above provisions and the resolution of the National Assembly, the appointment of the above Ad Hoc Committee was one of the items on the agenda of the third meeting of the Committee on Standing Rules and Orders which met on Monday the 7th of July 2014.

The Chairperson of the Committee on Standing Rules and Orders considered appropriate and specific draft terms of reference for the Ad Hoc Committee envisaged for consideration by the Committee on Standing Rules and Orders. The Chairperson encountered an apparent unconstitutionality of the resolution of the National Assembly of 8th April 2014 in the context of the provisions of Section 254 of the Constitution of Zimbabwe which provides for the establishment of the Zimbabwe Anti-Corruption Commission while Section 255 details the Commission’s functions. Having considered the apparent violation of the provisions of the Constitution in the implementation of the National Assembly resolution of 8th April 2014, the Committee on Standing Rules and Orders resolved to request the Speaker of the National Assembly to reconsider the matter and make an appropriate ruling on the constitutionality of that resolution.

The Chair has thoroughly analysed the constitutional implications of the appointment of the Ad Hoc Committee and giving it terms of reference in the context of the functions of the Zimbabwe Anti-Corruption Commission. The Chair, accordingly, makes the following observations:

The motion adopted by the National Assembly can be broken down into two parts, which are:
(i) to restore corporate governance; and
(ii) to investigate cases of corruption in private and public entities and any other relevant matter.

The founding values and principles provided in Section 3 of the Constitution list under subsection 2, the principles of good governance by which the state and all institutions and agencies of Government are bound. Section 3(2) (e) and (g) of the Constitution requires the State and all institutions of Government at every level, to observe and respect the principle of separation of powers as well as transparency, justice, accountability and responsiveness.

‘Corporate governance’ refers to the system of structures, rights, duties and obligations by which entities are directed and controlled. Thus, broadly speaking, the term corporate governance refers to the rules, processes or laws by which structures are operated and regulated. ‘Investigate’ means to carry out a systematic or formal inquiry to discover and examine the facts so as to establish the truth. In other words, investigation refers to an inquiry into a matter to make such a matter the subject of a criminal scrutiny.

Bearing in mind the principles of corporate governance and the investigative process with regard to corruption matters, it is pertinent to highlight that our system makes constitutional provision for the operation of the doctrine of separation of powers. Section 254 of the Constitution establishes the Zimbabwe Anti-Corruption Commission and sets out its functions in section 255 as follows;
a) to investigate and expose cases of corruption in the public and private sectors;
b) to combat corruption, theft, misappropriation, abuse of power and other improper conduct in the public and private sectors;
c) to promote honesty, financial discipline and transparency in the public and private sectors;
d) to receive and consider complaints from the public and to take such action in regard to the complaints as the Commission considers appropriate;
e) to direct the Commissioner-General of Police to investigate cases of suspected corruption and to report to the Commission on the results of any such investigation;
f) to refer matters to the National Prosecuting Authority for prosecution;
g) to require assistance from members of the police service and other investigative agencies of the state; and
h) to make recommendations to the Government and other persons on measures to enhance integrity and accountability and prevent improper conduct in the public and private sectors.

Thus, the establishment of an Ad Hoc Committee “to inquire into and recommend measures to restore corporate governance and to investigate cases of corruption in public entities and any other relevantmatter” would be in violation of the provision of the Constitution establishing the Zimbabwe Anti-Corruption Commission. This is because the primary role of the Zimbabwe Anti-Corruption Commission is to investigate and expose cases of corruption; which it does and accordingly submits recommendations to the Government or direct the Commissioner General of Police to take up measures and further investigate respectively the matter at hand as set out in the Constitution.

Further, it is also the mandate of the Zimbabwe Anti-Corruption Commission to promote honesty, financial discipline and transparency not only in the public sector, but also in the private sector as reiterated earlier.

The Chair, therefore, rules that, where there is an organ of state that is established in terms of the Constitution to perform a specific task, Parliament is obliged by Section 119 to:
(1) protect the Constitution and promote democratic governance in Zimbabwe
(2) ensure that the provisions of the Constitution are upheld and that the state and all other institutions and agencies of Government at every level act constitutionally and in the national interest.

Parliament cannot be seen to be the one to be violating the very Constitution it makes by creating an ad hoc Committee that competes with, and usurps the functions of, that organ of the state. The spirit of competition is highly discouraged amongst state entities and as such, it is encompassed in the basic values and principles governing public administration found in Section 194(1) (g) of the Constitution under which it is required, “that institutions and agencies of Government at all levels must co-operate with each other”. Therefore, the Ad Hoc Committee envisaged to be established in accordance with the motion by Hon. Madzimure, as amended by Hon. Zindi, would usurp and interfere with the already existing functions of the Zimbabwe Anti-Corruption Commission. However, Parliament has a constitutional mandate to exercise oversight on the Zimbabwe Anti-Corruption Commission
through annual reports submitted to Parliament in terms of Section 323 of the Constitution in order to ensure that it carries out its constitutional mandate as outlined in Section 255 of the Constitution of Zimbabwe.

Accordingly, the Chair hereby rules that the resolution by the National Assembly to adopt the motion to appoint an Ad Hoc Committee, to thoroughly inquire into and recommend measures to restore corporate governance and investigate cases of corruption in private and public entities and any other relevant matter is void.

(42 VIEWS)