Why are Muchechetere, Dube not in jail? – Sunday Mail

via Why Muchechetere, Dube are not in jail Sunday, 16 February 2014 by Makomborero Mutimukulu Sunday Mail

What is stopping the police from arresting suspended Zimbabwe Broadcasting Corporation chief executive Mr Happison Muchechetere and beleaguered Premier Service Medical Aid Society boss Dr Cuthbert Dube?

This appears to be the question that has been troubling most Zimbabweans following shocking revelations of obscene salaries and other shenanigans at ZBC and PSMAS respectively.

In the court of public opinion, Mr Muchechetere and Dr Dube ought to have been incarcerated by now, probably taking turns to share tales with the disgraced Robert Martin Gumbura in some dark cell at Chikurubi Maximum Prison.

Outrage over the obscene salaries they pocketed at ZBC and PSMAS, respectively, has engulfed the nation.
Suddenly the Zimbabwe Republic Police finds itself being accused of failing to walk the talk when it comes to “leaving no stone unturned” in fighting crime.

Government, too, has been accused of being soft on the matter amid accusations some senior officials fear that the ongoing exposé will engulf their own corrupt conduct too.

The public’s anger towards Mr Muchechetere is understandable for it was obscene, immoral even, for him to earn a basic salary of US$27 000 along with a monthly allowance of US$3 000 and another US$2 500 for his domestic staff when workers at the national broadcaster went unpaid for almost a year.

Revelations that the suspended ZBC chief executive was also entitled to five business class air tickets with his family, three air tickets within the region and unlimited air travel across the country makes the situation more dire.

Dr Dube, who was the chairman who offered Mr Muchechetere a “happy” contract at ZBC and is fighting his forced retirement from PSMAS, is also having everything, including the kitchen sink, thrown at him.

Disclosures that the embattled businessman earned half a million dollars every month at a time thousands of PSMAS members were failing to access treatment has left many Zimbabweans a furious lot.

A reader who reacted to a story carried by The Sunday Mail recently in which Prosecutor-General Mr Johannes Tomana indicated that he will take a cue from the police, who claim to be closely monitoring the situation at both the ZBC and PSMAS, probably captured the feelings of most people.
“Why the hell are you (police) not treating this with urgency? As far as I know, police run a 24/ 7 operation and by now they should have at least acted.

“Even a law ignoramus like me can see that there’s a prima facie case against ZBC management/board and Dube,” wrote the reader who signed off as Jay.

However, as one sifts through the fury directed at both Mr Muchechetere and Dr Dube, they get a feeling that there appears to be confusion as to what really constitutes a crime.

There is a constituency, a vociferous one, that erroneously believes that the pair should be arrested for earning such obnoxious salaries at a time their institutions were saddled with debt and failing to deliver services.

“Earning a salary, even one pegged at US$3 million a month, is not a crime as long as your contract of employment states that is what you should get,” said one of Harare’s most prominent lawyers.

“Right now, the police cannot just go and nab Muchechetere and Dube on allegations of earning obscene salaries . . . they will be embarrassed in court.  The police can only act after a forensic audit, not on hearsay. Only an audit at ZBC and PSMAS can reveal whether crimes were committed.”
He opined that Dr Dube could be charged with abuse of office during his tenure as ZBC chairman if it is proved that he negotiated and approved contracts of executives and general managers without the full board’s knowledge as is being alleged.

It is understood eight audit firms are bidding to conduct a forensic audit at the national broadcaster, covering the period January 1, 2009 to December 31 last year, following a request by the Ministry of Information, Media and Broadcasting Services to the Comptroller and Auditor-General to undertake an urgent forensic audit.

For ethical and professional considerations, firms that provided audit services to ZBC in the past were barred from participating in this tender, whose closing date was February 7.

According to the terms of reference for the audit, the winning firm will be expected to determine ZBC’s adherence to and fulfilment of principles of corporate governance in all aspects, including its interpretation of its mission, adherence to legal or statutory and policy instruments and good practices.

“Assess and test systems and detect any instances of corporate malfeasances and inefficiency for both remedial interventions and systems realignment. Determine the authenticity and validity of barter trade transactions that ZBC entered with some of its suppliers and customers and measure the extent of potential prejudice the corporation may have suffered through such dealings if any. Quantify the magnitude of ZBC’s current obligations and likely restructuring costs for the attention of the shareholder,” read the terms of reference.

PSMAS officials last week confirmed that an audit was also imminent at the institution.
It is only after the forensic audits at ZBC and PSMAS that police will move in, legal experts note.

“After the audits the ball, if need be, will be passed into the court of the police, who, in turn, have to pass it on to the Prosecutor-General who is mandated to arraign suspects before the courts.

“That was the case with Air Zimbabwe where some senior company officials were arrested. Arrests only come after an audit in cases like these,” said another lawyer, who requested anonymity for professional reasons.

However, there are indications that senior managers at ZBC contravened provisions of the Constitution.
Chapter 9 of the Constitution (Principles of Public Administration and Leadership) deals holistically with the conduct expected of management of public institutions.

Section 194 of Chapter 9 focuses on “Basic values and principles governing public administration”.
It reads, “Public administration in all tiers of Government, including institutions and agencies of the State and government-controlled entities and other public enterprises, must be governed by the democratic values and principles enshrined in this Constitution, including the following principles:
“(a) a high standard of professional ethics must be promoted and maintained;

(b) efficient and economical use of resources must be promoted;
(c) public administration must be development oriented…”

Section 195(1) further demands that, “Companies and other commercial entities owned or wholly-controlled by the State must, in addition to complying with principles set out in Section 194(1), conduct their operations so as to maintain commercial viability and abide by generally-accepted standards of good corporate governance.”

On the back of such detailed disclosures, the ordinary Zimbabwean has every reason to believe that the law was violated at ZBC and PSMAS. However it is imperative to appreciate that these allegations need to be substantiated with a forensic audit before the police can move in.

The top executives fingered in the salaries scandal can be fired pronto, but having them arraigned before the courts is a legal process with a clearly defined precedure.

Another avenue available is one which sees Government setting up a commission of inquiry, along the lines of the Sandura Commission of the late 1980s, to probe the allegations in line with the Commissions of Inquiry Act. Reads part of the Act: “The President may, when he considers it advisable, by proclamation, appoint a commission of inquiry consisting of one or more commissioners and may authorise the commissioner or commissioners or any quorum of them specified in the proclamation to inquire into the conduct of any officer in the public service, the conduct of any chief …, the conduct or management of any department of the public service or any public or local institution, or into any matter in which any inquiry would, in the opinion of the President, be for the public welfare.”

The Minister of Information, Media and Broadcasting Services, Professor Jonathan Moyo, last weekend revealed that Government intends to get to the bottom of the rot in the public service through a “comprehensive” fact-finding mission.

“Government wishes to assure the public that it takes very seriously the widespread reports of outrageous salaries and allowances for executive managers of parastatals, State enterprises and local authorities,” he said.

“The reported salaries and allowances are so shocking, obscene, corrupt and illegal that they require urgent and comprehensive policy response given their damaging impact on both the economy and our country’s ethical fabric.

“As such, the public is right not only to express its anger at those implicated in this corruption, but also to expect and, indeed, demand visible and decisive Government action against the scourge.

“Clearly, more now needs to be done to come up with a depoliticised and comprehensive fact-finding mechanism beyond asking managers of 78 parastatals and State enterprises or 92 local authorities to tell their own stories or to provide their own self-serving narratives.”