CDDR Communique 2: Constitutional and Legal Violations Committed by Minister of Justice Wynter Kabimba with…

Background

The Anti-Corruption Commission is investigating whether Justice Minister Wynter Kabimba influenced the awarding of oil supply contracts to Trafigura. Trafigura was awarded a US$500 million contract for a one-year period.

In a letter dated 31 October, the Justice Minister wrote to the Anti-Corruption Commission’s General Director, reportedly requiring action by the Commission within seven days failing which the Minister would initiate judicial proceedings to compel the Commission to disclose any findings of its investigation thus far.

Before the National Assembly, MMD Kasenengwa Member of Parliament Victoria Kalima raised a point of order, questioning whether the Justice Minister could direct the activities of the Anti-Corruption Commission. The Speaker, Dr. Patrick Matibini, ruled against the point of order, concluding that the Justice Minister could initiate the proposed legal action against the Commission. The Speaker reasoned that the Justice Minister could hold any institution accountable to its mandate.

Analysis

The Justice Minister’s action is in violation of law and of the constitution. Every institution must be accountable to its mandate and the mandate of the Anti-Corruption Commission must prevent persons being investigated for corrupt activities from interfering with an ongoing investigation.

This is especially true when the investigated person is a member of the President’s cabinet. Here, the relationship between the Commission and the government must not only be at arm’s length, but must be seen to be at arm’s length. For this reason, it is right that the President of Transparency International Zambia, Rueben Lifuka, insisted that the Justice Minister stand down from his government portfolio until the investigation is concluded. Not only has the Justice Minister refused to do so, thereby complicating the Commission’s investigation, he has gone one step further and insisted on setting the terms of its investigation.

The Anti-Corruption Commission Act (c. 91) does not raise difficult questions of interpretation, contrary to what the Speaker affirmed in ruling in favour of the Justice Minister on the point of order. It affirms clearly that ‘[t]he Commission shall not, in the performance of its duties, be subject to the direction or control of any person or authority’ (s. 5). The Justice Minister’s actions are nothing other than an attempt to subject the Commission to his direction and control.

The functions of the Commission include to ‘investigate any conduct of any public officer which, in the opinion of the Commission may be connected with or conducive to corrupt practices’ (s. 9(c)). The ability of the Commission to undertake this function would be jeopardised if it could pursue its investigation only within the timeframe set by the public officer under investigation. That is what the Justice Minister is seeking to do.

For this reason, the Anti-Corruption Commission Act specifies that ‘the Commission may regulate its own procedure’ (s. 11(1)). It is not for an outside party to determine the length of time of an investigation. When the Justice Minister seeks the disclosure of any report drafted by the Commission into his allegedly corrupt activities, he gets things precisely backwards. The Act provides that it is the Commission who may ‘require any person in charge of any department, office or establishment of the Government . . . to produce or furnish within such time as may be specified by the Director-General, any document or a certified true copy of any document which is in his possession or under his control and which the Director-General considers necessary for the conduct of investigation into alleged or suspected offences under this Act’ (s. 20(1)(b)). The Justice Minister may wish that the opposite was true—the he could require the Commission to produce or furnish within such time as he directs any document within the possession or control of the Commission—but the law is clear. So is his violation of it.

The Justice Minister’s actions display the very sort of behaviour that suggests that there are two laws in Zambia: those for the government, and those for other Zambians. The Rule of Law emphasises an altogether different message: one law for all.

Robert Amsterdam
Coalition for the Defence of Democratic Rights
R.Amsterdam@amsterdamandpartners.com
London, United Kingdom – 13 November 2012

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