Editorial Comment: Adopt efficient tools, be a step ahead in graft fight

Corruption has been identified as a menace to Zimbabwe, causing a great deal of harm, but investigations and prosecutions have not been spectacularly successful and at times have been very bad.
This was partly because some of the worst suspected offenders were at the top, in Cabinet and the upper reaches of Government.

They could protect themselves or could arrange protection from investigation.
A second problem is that a person getting away with corruption is likely, by the very nature of the crime, to have adequate funds to mount a high-level defence.

Thirdly, corruption is not a crime committed in public or in front of witnesses.
It is something done in the depths of secrecy and this makes investigation difficult and prosecution hard.
With the advent of the Second Republic, corruption has been brought onto the front burner.

The political will is now there to see it fought and defeated, but we obviously need more than strong language, public pressure and a change in policy. We also need practical action.

In this upgrading of the battle against the corrupt, converting policy and public pressure into legal action, Chief Justice Luke Malaba, mostly wearing his hat as an activist chairman of the Judicial Service Commission (JSC), has been taking a leading role in converting policy and public pressure into legal and effective action, from setting up special courts to seeking changes in the way the crimes are investigated and prosecuted.

Judges have to rely on evidence, and if the evidence is bad or dubious, they cannot convict.
As experienced lawyers themselves, they almost certainly can have a very good idea of what was going on, but in criminal cases the test is beyond reasonable doubt, not probabilities.

And so judges have to acquit or, more often, acquiesce in what seems a series of eternal delays.
In the reform of the process, the Chief Justice started by recommending to the President, a judge he thought highly appropriate to the role as chair of the Zimbabwe Anti-Corruption Commission (ZACC) and already that commission has grown a mouth of teeth and is a great deal more active.

And this week, we have seen a visit by the head of Uganda’s anti-corruption courts, Justice Lawrence Gidudu, on a training mission, but more importantly, making Zimbabweans involved in the battle against corruption think outside the box.

Uganda started its specialised courts a decade ago and its judges, prosecutors and police detectives have learned a lot.

They have experimented with changes in the ways things are done, while preserving fundamental rights, and have found some things that work, and probably found a lot of things that did not.

Zimbabwe can accelerate to the same level of competence faster by finding out what has worked in the African context and building on this, adopting best practices rapidly.

One of the most interesting points Justice Gidudu has brought up is the need for prosecutors and investigating police to work far more closely together than is generally the case in countries whose systems were created in the days of the British Empire, where police dug up the evidence, dumped the file onto the desk of the prosecutor, and that lawyer, who may not have the required non-legal background, has to assemble the case against the accused.

Other countries do it differently.
Most of Europe, for example, has procedures where legal expertise is brought into the investigation at a far earlier stage.

In Italy, in serious cases, the prosecutor, the publico ministerio, is assigned right at the start.
Technically, a judicial officer holding the rank of magistrate, but not of judge, has the responsibility to find out what happened and must clear the innocent as well as prosecute the guilty.

The point is that the officer, who will eventually lead the evidence in court, and Italy has moved far closer to the English style adversarial system, is the same official who was working with the police in investigating the crime.

So when the prosecutor goes into the courtroom, there are no gaps and the person presenting the case is actually the person who knows most about it, yet is trained to know how to explain the facts to judges.
Obviously there can be turf wars, but more often the system works very well, so well that for simpler and more minor crimes, Italian police themselves have a legal unit that ensures investigators dot the I’s and cross the T’s in their investigations.

It was this system, led by a group of dedicated publico ministerios, which smashed the mafia and broke the grip high-level corruption had on Italian life. Several of them were murdered during that battle.

France uses a slightly different system. For the three or four percent of most serious crimes, which include embezzlement and corruption, an examining or investigating judge, a judge d’instruction, is appointed to run the investigation with the police.

This independent judicial officer does not prosecute, and in fact cannot appear in the court, but the prosecutor eventually sent in to present a case where the instructing judge reckons there is evidence of a crime is well-briefed and there are no gaps.

Even in the United States, which started from the same English procedure, both prosecutors, who work for the local elected district attorney, and the police are local officials at city or county level.

But the district attorney likely to be the prosecutor is generally working with the police at an early stage as everyone battles to find out what happened and who did what.

Again, a better briefed prosecutor and one who has had an opportunity to work with the police can present a better case.

Most changes in procedures come in small steps, and there is no need for Zimbabwe to switch over to say the Italian system tomorrow. But as Justice Gidudu noted, the procedures can be adapted and modified.

At the same time, the senior judge’s comments on the need for police and prosecutors to have adequate non-legal training and background must be acted upon.

When going after financial criminals, obviously being able to read the “paper trails” is important, and in the modern world this means being able to read “digital trails”.

Criminals use ever more sophisticated methods to hide their crimes, and police and prosecutors thus have to have ever more sophisticated skills to expose them.

This might mean that the investigation teams include the same sort of high-level financial experts as the criminals themselves use.

But in the end, changes and upgrades are there for just one reason, the same old reason.
Find the evidence, figure out who committed the crime, present the evidence before an impartial court, let the defendant question the evidence and then try and ensure the guilty go to jail and the innocent go free.