Corruption and International Investment: A Study of the Zimbabwean position

INTRODUCTION:

Corruption is a serious hindrance to International Investments. The following paper purports to discuss the Zimbabwean position on corruption in the following order: (1) Giving a general overview of corruption; (2) a discussion of Zimbabwe’s legal framework, that is within the domestic, regional and international spheres; (3) a discussion on Zimbabwe’s anti-corruption bodies and an analysis on their effectiveness; an overall analysis of the Zimbabwean position and finally; (4) a conclusion.

OVERVIEW OF CORRUPTION:

1. DEFINITION

Corruption refers to an illegal act from which one derives benefit through inappropriate means. This involves activities such as bribery which is the obtaining or soliciting of any consideration or gain to oneself as an inducement or reward for doing something or omitting to do something knowing or realising that there is a real risk that such is not due to them. It   also involves   one who gives such consideration to another to do or omit to do something for their benefit. It also includes money laundering and engaging in illicit financial trade flows which are a form of illegal capital flight that occurs when money is illegally earned, transferred, or spent with the aim of making that money disappear from the country of origin.

2. CAUSES OF CORRUPTION

Corruption cannot be evaluated unambiguously, as there is never only one phenomenon that is accountable for its occurrence and growth; corruption always occurs from a variety of interrelated variables that can vary significantly from each other. Among the variables that affect the growth of corruption most frequently listed are: (A) The political and economic climate prevalent within a state, (B) professional ethics and legislation, (C) as well as purely ethnological factors such as customs, practices and traditions.

ZIMBABWE’S LEGAL FRAMEWORK:

In the Republic of Zimbabwe, Anti-corruption efforts are governed by the following legislation, inter alia, The Constitution of Zimbabwe Amendment (No20) (2013); The Zimbabwe Anti-Corruption Commission Act (2004); Public Service Act (1995); Criminal Procedure and Evidence Amendment Act (2016); and Criminal Law (Codification and Reform) Act of 2006. Specifically, Criminal law (Codification and Reform) Act regulates bribery and corrupt activities separately in chapter IX.

Besides domestic legislation, Zimbabwe has also ratified a number of international and regional conventions on corruption.Conventions on corruption provide for standards in the prevention, detection, investigation and prosecution of corrupt acts. Anti-corruption conventions are particularly essential in establishing a framework for dealing with cross-border problems. They promote global collaboration in law enforcement by requiring states to criminalize corrupt behavior, harmonizing law enforcement legal as well as institutional frameworks, and creating cooperative processes.The United Nations Convention Against Corruption (UNCAC), is one of the international conventions to which Zimbabwe is a party. The primary objective of the UNCAC is to prevent illegal acts of corruption between its States Parties.

With regards to regional conventions,both the Africa Union Convention on Preventing and Combating Corruption (AUCPCC) and (to which Zimbabwe is a party) stake a comprehensive approach to preventing and combating corruption.These instruments include preventive and punitive measures, as well as provision for international cooperation.

It is submitted that the fact that Zimbabwe is a party to such conventions gives rise to a presumption that the state of Zimbabwe recognises the negative impact of corruption, although its domestic legal framework is insufficient in fully addressing the problem, as will be shown through the course of this paper.

ZIMBABWE' ANTI-CORRUPTION BODIES

1. THE ZIMBABWE ANTI-CORRUPTION COMMISION

Section 254 of the Zimbabwean constitution establishes the Zimbabwe Anti-Corruption Agency (Hereafter referred to as ZACC). The commission constitutes of eight members appointed by the president, and a chairperson also appointed by the president.

ZACC’s functions as a body can be summarised as the combating and prevention of corruption within the private and public sectors of Zimbabwe. What is important to note here is that although the Commission has investigative powers, it inconsistently lacks the powers of arrest.

ANALYSIS ON THE EFFECTIVENESS OF THE COMMISSION:

From a reading of the functions of the commission it is clear that the main objective of ZACC is to combat corruption. However, it is submitted that the effectiveness of the commission is compromised by a lack of independence and functionality.

Firstly, this is a result of the fact that the commission in its entirety is appointed by the president (who is first and foremost a politician) who also has the power of dismissing any members of the commission. Resultantly there is a risk of political appointments by the president, leading to a lack of Independence on the part of the commission as it would not bit3 the hand that feeds it, by initiating proceedings against anyone affiliated with the president. 

Another problem that is as a result of the appointment and dismissal provisions is lack of public confidence in the commission. An example of such is the public criticism that came as a result of the president appointing the wife of one of his political party members. This has cast doubt on the impartiality and Independence of the commission and is a good enough reason for one to doubt the Independence of the commission, Independence which is crucial to the functioning of the commission.

To add on, it is submitted that ZACC's lack of arresting powers greatly compromises its functionality. According to the constitution, ZACC does not have the power to arrest, as such power is the prerogative of the ZRP. Seeing how the ZRP is viewed as the most corrupt entity in the country, it negates the effectiveness of the commission as corruption usually follows corruption, leading to the non-arrest of those under investigation by the commission.

2. THE ZRP AS AN ANTI-CORRUPTION BODY; AN ANALYSIS ON ITS EFFECTIVENESS

As far as enforcement is concerned, the Zimbabwe Republic Police (ZRP) has the mandate to investigate and arrest in accordance with the 2016 Criminal Procedure and Evidence Amendment Act, except in the conditions set out in section 7. The ZRP is regarded as extremely compromised, being cited many a time as the most corrupt and partisan entity in the State.Police corruption is, in reality, a very high menace to Zimbabwean companies and businesses. Police are suffering from poor working conditions, absence of  adequate training and resources, and low wages, so corruption is prevalent, particularly at reduced rates. Roadblocks are frequently used for extortion of products or bribes. Most Zimbabweans see the police as the country's most corrupt organization. Therefore, on that basis alone, the arresting powers should be transferred to ZACC, thereby ensuring an independent and effective anti-corruption organ within Zimbabwe.

OVERALL ANALYSIS AND RECOMMENDATIONS:

Although the Zimbabwean legislative framework goes a long way in trying to combat and prevent corruption, it is submitted that the Zimbabwean framework is still below par, due to the following reasons:

1. ZACC, the main organ to which the combating corruption is delegated, lacks independence due to the fact the commission is likely to have allegiance to the president who holds the dismissal and appointment powers sorely.

2. The commission lacks arresting powers, with the organ that holds these powers (ZRP) being extremely compromised as was highlighted above. 

3. There is an evident lack of public confidence in the organs meant to combat corruption thus leading to the public being reluctant in assisting the organs when it comes to revelation of corruption incidents and cases.

As such, the writer recommends that the state of Zimbabwe takes the following steps:

1. Zimbabwe should initiate legislative reform, taking away the powers of the president to appoint and dismiss members of ZACC; and giving those powers to parliament, which is an entity compromising of persons of different allegiances and ideologies. This would ensure an independent commission in line with the Jarkata Principles.

2. Further, Zimbabwe should give arresting powers to ZACC to ensure the effectiveness of the commission in combating corruption.

3. Zimbabwe should create a review committee similar to the one in Hong Kong. This committee will have the powers to investigate the independence of ZACC.

4. Zimbabwe should also improve the working conditions and benefits of the ZRP inorder to make it less prone to corrupt conduct.