Money speaking louder than the law

via Money speaking louder than the law | The Financial Gazette – Zimbabwe News 19 Jun 2014

IT is not obvious that someone who has committed a crime will go to prison. Particularly if the perpetrator is oiled enough financially; is well connected, a public figure, or all of the above.  The worst that could happen is for one to be booked for a few days, and once bail is granted, they go out and stay out.  If they have their day in court, at all, the process could be so dragged out that before you know it court documents go missing; witnesses disappear; and in no time the culprit is let off the hook on grounds of not enough evidence against them.  That is usually the easiest route.

In a system where money is speaking louder than the statutes on the law books, the road to justice has been paved with bribes, and the concept of “just” a very distant possibility. In a nation where the levers of power are generally skewed towards the ruling ZANU-PF,the other currency besides money that takes precedence above the rule of law is partisanship.  While party bigwigs have often appeared above the law, outcomes of most cases where the culprits are known opposition party supporters have been predictable.  Sometimes uncharacteristic haste has been demonstrated where the outcome is negative to that opposition supporter or where it should be positive, justice has been delayed indefinitely. And as the saying goes, justice delayed is justice denied.

As such over the years the justice delivery landscape has been littered with reports of bribed prosecutors and other officials along the legal chain; disappearance of files and other court records; partisan bias; and selective application of the law. Chief Justice Godfrey Chidyausiku has broken the silence and spoken publicly on the matter.  Officially opening the judicial year last year, Chidyausiku referred to the rampant corruption and attributed it to the lack of adequate funding for the justice delivery system.

The admission rang alarm bells across the country with some wondering the extent to which corruption in the judicial service is affecting the ordinary citizens. If corruption in the justice delivery system can be confirmed at the top of the chain, how far rampant could it be at the bottom? Could it be that innocent people are being sent to prison while the guilty ones roam free? Once bribes have exchanged hands at whatever level of the greasy pole of corruption, the most feasible thing to do is to eliminate records so as to handicap the case and erase any account of it.

Former Plumtree resident magistrate, Stephen Mavuna is currently being tried at the Bulawayo Regional Court for allegedly causing the disappearance of over 200 court records. Allegations are that he presided over criminal matters and passed sentences which required such records of proceedings to be forwarded to the regional magistrate for scrutiny while some were supposed to be forwarded to the High Court for review. But the records were never forwarded.

The magistrate allegedly received records of appeal for processing, but did not send them to the High Court. Further investigations resulted in the discovery of empty record covers. However, in his defense, Mavuna is accusing clerks of court of hiding the documents and entering false information in registers working in tandem with the prosecutors.  In another interesting case of court documents disappearing, High Court judge Justice Charles Hungwe failed to sentence murder convict Jonathan Mutsinze after the disappearance of court documents.

Resultantly, Mutsinze, who has been in remand prison for 11 years since his conviction in 2003, was found guilty of murdering a police officer and a security guard during a robbery but has not yet been sentenced because the court records disappeared. Mutsinze, through his lawyer, Tazorora Musarurwa, last year approached the Constitutional Court saying he should be freed because of the delay in sentencing and disappearance of the court record.

In an affidavit for that case, Hungwe alleges corruption by judiciary and prison officers in the disappearance of the court records relating to Mutsinze.
He argued that Mutsinze allegedly connived with the judiciary and prison officers to ensure the disappearance of his record of proceedings and erasure of tapes as a way of evading sentencing.

Hungwe said there is strong evidence of how the documents vanished. “There is credible evidence at hand which indicate accused person’s hand in the disappearance of this record from criminal registry as well as the erasure prematurely of the tape recording of the proceedings leading to his conviction on two counts of murder committed during a robbery.

“That evidence indicates collusion with officers at the High Court as well as prison officials around that time,” said Hungwe giving his side of the story when he appeared before a commission set up to inquire his alleged misconduct in February this year.

Testifying in the same case, the transcription department indicated that recorded information on cassette tapes relating to this case could no longer be located with all the 22 tapes used on the case vanishing along with 530 pages of the judge’s handwritten notes. In 2009, documents in the corruption prosecution of the then deputy information minister Bright Matonga and former Zimbabwe United Passenger Company board chairman, Charles Nherera, disappeared resulting in the acquittal of Matonga and the erroneous jailing of Nherera.  Nherera went on to serve a two-year jail sentence but was declared not guilty by the Supreme Court almost a year after being released.

Harare lawyer, Dumisani Mthombeni, told the Financial Gazette that the majority of cases in which court documents vanish would be because of corruption.
“I would with utmost certainty say 99,9 percent of such cases are because of corruption. People connive to steal and destroy those documents in the hope that, that would kill the criminal case against them,” he said.

Mthombeni also said poor remuneration among magistrates, prosecutors, police officers and other court officials was fuelling corruption in the courts. “I have myself worked in government as a regional public prosecutor previously and know how tempting it is to be offered a few hundreds of dollars simply to destroy documents you ordinarily have access to. If you are a magistrate you have access to court records, if you are a prosecutor you have access to court dockets and state outlines. So there is a high possibility of corruption being at the centre of the whole issue,” he said.

“This issue of corruption at our courts has been with us for a long time now, the Chief Justice, the Chief Magistrate, the Minister of Justice and even the director of public prosecutions, Johannes Tomana, have all previously admitted that  this is rampant at our courts,” he added.

“The issue is that we now have civil servants not motivated by the desire to serve but by money. We need those with the desire to serve, if you want to earn money, just leave government and go elsewhere.” Mthombeni also called for a thorough investigation into the matter saying it would be extremely useful in curbing corruption.

Another Lawyer who declined to be named said in most cases where court documents disappear they will be of high profile criminal nature or political trials. These, he said, were most likely to disappear through fraudulent means as criminals capitalise on corruption tendencies among court officials to try and escape conviction and subsequent sentencing. “Court documents just do not go missing without an interested party desiring so. Of all missing documents, most go missing through underhand tactics of people avoiding the law,” he said.

“Literally, criminals buy the documents to be destroyed, thereby getting rid of evidence,” he added.

According to legal experts, prosecutors are the biggest culprits as far as corruption at the courts is concerned but it also involves clerks of court, police officers and other court officials.  There are similar problems in quasi-judicial bodies such as labour dispute resolution mechanism, local authorities, mining commissioner’s office, government licensing authorities and all public offices that make quasi judicial decisions.

Deputy Minister of Justice, Legal and Parliamentary Affairs, Fortune Chasi, said cognizant of the corruption the bar has been raised within the legal system. “The bar has been raised to a very high level that is why you see instances where some legal officers have been prosecuted. We have no tolerance on corruption,” Chasi said, adding that members of the public should come forward with any information they have on corruption within the justice system.

“Members of the public should available any information they have on corruption,” Chasi said. “Also the public should not be complicit. Corruption is something we need to deal with holistically. For corruption to occur it means some people (members of the public) would have requested or participated in some way. So we urge anyone in the legal system as well as members of the public to desist from corruption.”