10 Aug 2020: Law Enforcement Agencies (LEAs) in Zambia: Public Perception and Perspective of ACC – 08/09/2020Delving into history and background. The legal provisions that outlawed corruption in independent Zambia were first contained in the penal code, CAP 146, Chapter X of the laws of Zambia. This legislation was exclusively concerned with “corruption offenses by persons employed in the public sector” but did not take offense with corruption transactions by or with private bodies or agents. It was therefore inadequate in as far as “fighting corruption” is concerned. The Zambia Police Force (now Service) which was charged with the duty of enforcement was also not able to adequately deal with corruption offenses.
In 1980, a bill in parliament was passed that culminated into the establishment of the Anti-Corruption Commission that was going to deal with corruption cases exclusively. The Anti-Corruption Commission (ACC) is the Agency that is mandated and Zambian citizens expect ACC to spearhead the fight against Corruption in Zambia professionally, effectively and efficiently. The Commission was established in 1980 under an Act of Parliament, the Corrupt Practices Act No. 14 which has since been repealed. Settled, the Anti-Corruption Commission (ACC) is the main body tasked to combat corruption in Zambia. ACC investigates and prosecutes, conducts corruption prevention and community sensitization. The Anti-Corruption Commission is mandated to perform the following functions
1. Prevent and take necessary and effective measures for the prevention of corruption in public and private bodies;
2. Receive and investigate complaints of alleged or suspected corrupt practices, and subject to the directions of the Director of Public Prosecutions, prosecute those suspected of involvement in corruption;
3. Investigate any conduct of any public officer which in the opinion of the Commission may be connected with or conducive to corrupt practices;
4. Disseminate information on the socio-economic effects of corrupt practices, and enlist and foster public support against corrupt practices; and,
5. Do such things as are incidental or conducive to the attainment of the functions. In its efforts to effectively, efficiently and professionally perform these functions, the Commission has established five (5) main departments namely: Investigations; Legal and Prosecutions; Corruption Prevention; Community Education, and; Finance and Administration.
The ACC Mission Statement has been tabulated as follows: “To effectively and impartially prevent and combat corruption in order to promote integrity, transparency and accountability for the attainment of a corruption-free Zambia” whereas their Vision Statement is “A proactive, impartial and professional anti-corruption agency that promotes the attainment of a corruption free Zambia”. The ACC Values among many others are; Integrity, Excellence, Accountability, Respect, Confidentiality, Transparency, Collaboration, Impartiality, Loyalty, Responsibility and Patriotism. The ACC Website (not sure when it was last updated) sates; The Anti-Corruption Commission (ACC) Mission Statement is “To effectively prevent and combat corruption in order to promote integrity, transparency and accountability for sustainable development in Zambia” while its Goal Statement is to “To achieve a significant reduction in the levels of corruption in Zambia”. The Vision Statement is “To be a lead institution of a broad sector alliance for combating corruption”. The Anti-Corruption Commission Core Values for Officers of the Commission are also guided by eight fundamental core ethical values in their performance of their duties. These include: Integrity, Excellence, Accountability, Respect, Confidentiality, Collaboration, Impartiality, Loyalty, Responsibility and Citizenship as contained in the ACC Code of Ethics. The Act Number 3 of 2012 which was assented into law on 12th April, 2012 is an Act to continue the existence of the Anti-Corruption Commission and provide for its powers and functions which are to; provide for the prevention, detection, investigation, prosecution and punishment of corrupt practices and related offences based on the rule of law, integrity, transparency, accountability and management of public affairs and property; provide for the development, implementation and maintenance of coordinated anticorruption strategies through the promotion of public participation; provide for the protection of witnesses, experts, victims and other persons assisting the Commission; provide for nullification of corrupt transactions; provide for payment of compensation for damage arising out of corrupt activities; provide for the domestication of the United Nations Convention Against Corruption, the African Union Convention on Preventing and Combating Corruption, the Southern African Development Community Protocol Against Corruption and other regional and international instruments on corruption to which Zambia is a party; repeal and replace the Anti-Corruption Act, 2010; and provide for matters connected with, or incidental to, the foregoing. The background of the Anti-Corruption Commission lies in these efforts to fight this scourge of corruption. The Commission is mandated to spearhead a broad Anti-Corruption Mandate of the investigation, prosecution, prevention, and public education. This mandate anchors the Commission’s core functions of enforcement, prevention, education which are a pillar of its existence. Those who worked under the late Justice Robert M Kapembwa and Paul Douglas Russel fondly called this “the three-pronged attack” on corruption. The Anti-Corruption Commission is mandated to prevent and take necessary and effective measures for the prevention of corruption in public and private bodies.
The Commission receives and investigates complaints or cases of alleged or suspected corrupt practices (like complaints or allegations against Ronald K Chitotela and others against Dr. Chitalu Chilufya), and subject to the directions of the Director of Public Prosecutions (DPP), prosecute those suspected of involvement in corruption. Investigating any conduct of any public officer which in the opinion of the Commission may be connected with or conducive to corrupt practices. It is important to mention that the DPP can access the investigations and prosecution file, review the witness statements, evidence collected, Bank Statements, Transactions, warn and caution statements administered and statements from suspects and after being satisfied that the matter merits prosecution in courts of law, gives a FIAT – a Legal consent and authority for ACC to formally arrest and prosecute the case in court. These approaches sometimes require joint efforts with other Law enforcement Agencies like in the case of the Task Force on Corruption or the GHOST 48 Houses which up to date, Zambia Police Service, Drug Enforcement Commission, and several other Security Services have FAILED to establish, determine, know or share the details of the owners of the said property. The Anti-Corruption Commission also disseminate information on the socio-economic effects of corrupt practices, and enlist and foster public support against corrupt practices; and, do such things as are incidental or conducive to the attainment of the functions. Under the Community Education, the Commission should have and must go ahead and be encouraged and supported to develop a deliberate policy of inculcating a culture of zero-tolerance for corruption among the youth through youth festivals, school anti-corruption clubs, and school curriculum. The Charity begins at home concept and citizens not to glorify THIEVES and condone CORRUPTION starts with all members of the community. Together, various ways including partnering with the private sector, NGOs, civil society like TIZ, artists and the general public should be and must be adopted to achieve the goal. “The three-pronged approach and attack” on Corruption resemble many jurisdictions, especially around the African Region. The ACC Departments and what they are expected to do. A). Investigations Department – Investigations of suspected cases of corruption and related crimes are conducted by this Department of the Commission. The Department thus houses one of the Commission’s core functions. The Department’s principal functions are:1. To receive and investigate complaints of alleged or suspected corrupt practices2. Intelligence gathering and data analysis. Once the ACC receives reports of alleged or suspected corrupt practices the Director General then authorizes inquiries to be conducted. Those found with cases to answer under the ACC Act are taken to court for trial and the Commission is represented by the Legal and Prosecutions Department. It is however important to note that an investigation can lead to the following outcomes:1. Prosecution of the accused once enough evidence of the commission of an offence is adduced and the Director of Public Prosecutions gives consent to prosecute the suspected offender.2. Exonerating an accused person if there is no evidence that points to wrong doing.3. Administrative action where evidence is insufficient to sustain a case in court or prove to the commission of an offence beyond reasonable doubt. In such a situation where evidence is insufficient, but the Commission believes that there is a loophole for corruption or an accused could have engaged in bad behavior which cannot be proved to be corruption, an investigation can end up in a recommendation for administrative action.4. The Commission can refer any case to any relevant agency that is deemed to have adequate authority to deal with cases that do not fall under the Commission’s jurisdiction. Some cases of outright fraud, theft, drug abuse and the like have been referred to the Zambia Police or the Drug Enforcement Commission for them to competently handle.
The Anti-Corruption Act No 3 of 2012 spells out what constitutes an offence of corruption for which the Commission will investigate and prosecute. According to the Act these offences include:1. soliciting, accepting, obtaining, giving, promising or offering of a gratification in return for a favor. The Act defines gratification as any corrupt payment, whether in cash or in kind.2. Misuse or abuse of public office for private or personal gain.3. A public officer who lives beyond one’s past and present official emoluments. This offence suggests that a public officer must prove that the wealth they have acquired is within their past and present official emoluments. If they fail to provide an explanation of how they acquired such wealth or property, this may be deemed to have been corruptly or ill-gotten. The challenge of who bears the burden of proof between the accused and the accuser is still an ongoing Social media and live debate in the Cases against Chitotela, Chilufya and Chimese. B). Legal and Prosecutions Directorate is charged with the responsibility of prosecuting offences under the Anti-Corruption Act No 3 of 2012. Section 6 (1) (b) (ii) of the Act also empowers the Commission to prosecute such other offences under any written law that may come to the attention of the Commission in the course of an investigation for corruption. (The Anti-Corruption Act No 3 of 2012). This Legal and Prosecutions Directorate carries out the prosecutorial functions of the Commission which includes:1. Rendering legal advice on the on-going inquiries and giving legal opinions on dockets upon conclusion of any inquiry.2. The Department also drafts all charges and consents for DPP’s consideration and prosecutes all cases of corruption and such other offences that may come to the attention of the commission in the course of any investigation of corruption.3. The Department also represents the commission, in collaboration with the Ministry of Justice, in all civil matters.4. It also undertakes legal research in order to enhance the capacity of the ACC to implement its mandate.It should be noted that when ACC Investigators are carrying out investigations against, high profile Politically Exposed Persons (PEPs) like Minister Chitotela, Chilufya or ZAF Commander Chimese, the Legal and Prosecution Department (with a pack of Lawyers and Prosecutors) do advise, give legal opinions and they participate in drafting the charges and consents for DPP’s consideration and Prosecutors from this Department may guide which State witness to call first, second, third before the Start witness in Court of Law. In Dr. Chilufya’s case, the Prosecutor decided to call “CHIPULI” first and consequently ACC suspended him without any Investigations. One wonders why the same ACC did not recommend suspension of Chitotela and Chilufya as they investigated serious offences of corruption. We are where we are because of these two Departments at ACC.
C) Community Education Department – Is responsible for disseminating information and fostering public support against corruption through education and awareness programs as provided under the Anti-Corruption Act No. 3 of 2012. It is also responsible for cultivating and managing relationships with stakeholders and promoting the vision and corporate identity of the ACC. It is important to add here that, for any information and messages to be well received accepted and implemented by the Community, the TONE at the top and exemplary behaviour and conduct by powers that be and ACC Officers themselves need to inspire confidence. It is very difficult for a weed smoking dad discouraging children from smoking dagga when he is still rolling one in an old newspaper and puffing the smoke in their faces.
D) Corruption Prevention Department – Is responsible for providing technical and advisory services to public and private sector institutions with the objective of preventing the occurrence of corruption.The Department’s principal functions are as follows:1. lead the ACC’s co-ordinating role of Government anti-corruption programmes and activities by developing and facilitating the implementation of the National Anti-Corruption Policy and Implementation Plan aimed at achieving a harmonized and focused anti-corruption fight;2. conduct research and surveys to generate baseline information on corruption in order to facilitate the development of appropriate measures for the effective prevention and combating of corruption;3. examine the practices and procedures of public and private bodies in order to facilitate the discovery of corrupt practices and secure the revision of methods of work or procedures which may be prone and conducive to corrupt practices;4. advise public and private bodies on ways and means of preventing corrupt practices through the revision and implementation of administrative procedures and methods of work compatible with the effective performance of the client body’s duties;5. liaison with respective public bodies, develop and implement programmes and activities aimed at enhancing integrity and public service delivery by staff;6. maintain a national level data-base on corruption to facilitate decision-making on anti-corruption;7. monitor and evaluate the effectiveness of institutional programmes and activities. The Department also sits on various Standing and Ad hoc Committees to enhance transparency and accountability in the delivery of public services. In this regard the Department is divided into three Units namely: Institutional Advisory; Corruption Prevention Operations, and; Research. One personal comment regarding this Department, is that they need to constantly review the performance of the Integrity Committees, the work of Internal Auditors in both Private and Public Organization, analyze the Auditor General’s Report and the National Assembly’s Public Account Committee Reports. Fully understand why year in and year out MDAs (Ministries, Departments and Agencies, including Commissions) keep on repeating same mischief, misconduct, dishonest conduct and come up with the Strategic Policy on how to effectively combat corruption, otherwise the ACC risks losing face by members of the public. E) Human Resource and Administration – is responsible for providing resource management and administration services that supports delivery of operational outputs of other departments in the Commission and facilitates their performance. The department’s principal functions are:1. Human Resource Management, Development, Financial Management, Office Administration, Secretarial Service, Records Management, Information Technology and Communications. The challenge of nepotism, employing relatives, cadres, the sons and daughters of Commissioners, Other staff members in the manner OOP, DEC, Immigration, ZPS, ZAF, ZNS, Army, UNZA and CBU should be discouraged. Employ on merit. TO BE CONTINUED!