Of smoke and mirrors: The rule of law must apply to all 

Perception is everything. Rightly or wrongly, our perception of things is often our version of reality.

Source: Of smoke and mirrors: The rule of law must apply to all – The Standard November 25, 2018

That reality becomes our truth. Our version of truth helps us make judgements about the everyday situations facing us. As we interrogate and interpret the world around us on a daily basis, we are, so to speak, in a state of “cognitive relativism”. Cognitive relativism — also known as alethic relativism — is the capacity for human beings to be wakeful whilst making sense of things, establishing reality based on proven evidence, applying logic, justifying beliefs based on existing information and rationality to the viewpoint of those who otherwise are confirming or misrepresenting the proposition.

the sunday maverick with GLORia NDORO-MKOMBACHOTO

The importance of the concept of the rule of law

The concept of the rule of law underpins all activities in all facets of life for a country. It affects the quality of life for the citizenry, how they perceive government and how they respond to regulations, how they work and the choices they make in complying with the rule of law and respecting the institutions in the country.

When a government has got a strong rule of law, it gives the citizenry, the institutions operating in that country, in particular business, the confidence and knowledge that all the laws of the country are respected, honoured and bind everyone without excluding a select few. Writing for the UN Global Compact, Christina Koulias, senior manager, Anti-Corruption and Global Governance advises that, “A strong rule of law includes:

l Clearly written and easily accessible laws that create certainty and enforceability of legal rights.

l An independent and impartial judiciary that promotes fairness and ensures transparent, timely and predictable resolution of disputes.

l Effective and efficient public institutions that empower business and individuals to make a positive contribution to the economy and society.”

In situations where the rule of law is weak, society and the institutions operating within that society are weakened and therefore, malfunction. When the rule of law is selectively applied, confidence in the government diminishes, the citizenry make up their own rules, as they go along, certainty is eroded, planning is difficult and responsible business finds it harder to function because the enforcement of their legal rights is at risk as it is not protected.

In Zimbabwe, it is high time we moved towards respecting the rule of law and away from respecting powerful political figures in order to get ahead. It is not a sustainable enterprise for desperate citizens to guarantee their livelihoods by bootlicking and using other obsequious behaviour, in order to gain favour of politicians. When political beings are the only ones with the power to control who does what and where and for whom, a country descends to being a kleptocracy. A country whose citizenry depends solely on the power elite to transact and survive at the expense of the public and private institutions operating within that economy is a society that is captured by that elite and whose development is stymied.

The artful deceit is there for all to see

On October 16, 2018, the Zimbabwe Republic Police (ZRP) rounded up street money changers in most cities and towns across the country. There are allegations that many were released after bribing the police. This exercise was seen as a smokescreen as it is widely known that most of the money changers populated around the country are the underlinks of the political power elite.

Recently, President Emmerson Mnangagwa used temporary powers for a new law that will see illegal currency traders being sentenced to up 10 years in jail and the wealth accumulated from these illegal activities will be confiscated. Under regulations that came into effect on November 12, 2018, government will be tracking unexplained movement of money in the financial system. The question that begs an answer is who is going to guard the guards. The people at the centre of corruption crimes, including money laundering and illegal currency trading are political power elite and the street men and women visible on the streets across towns in the country work for them.

The president intends to obstruct and eradicate illegal money activities by amending the Exchange Control and Money Laundering and Proceeds of Crime Acts through constitutional provisions of the Presidential Powers (Temporary Measures) Act. The second amendment is to the Money Laundering (and Proceeds of Crimes) Act to provide for unexplained wealth and the respective enforcement agents where a public office holder or someone previously in that capacity fails to account for wealth accumulated in a manner suspected to be criminal. Those close to this process have advised that “the exchange control regulations have also been amended to introduce a presumption where one conducts themselves in a certain manner to be held liable for dealing. In addition, The Unexplained Wealth Orders would give crime-fighting entities like the National Prosecution Authority, the Zimbabwe Anti-Corruption Commission (Zacc) and the ZRP power to seize unexplained wealth.”

As the government continues with the use of the multicurrency regime without addressing the economic fundamentals that need to be met, such as curbing government expenditure, privatisation of fiscus sapping parastatals etcetera, consumer and business confidence will remain depleted and the black market will prevail as there will be no sustainable fiscal and foreign currency reserves. As indicated earlier in this paper, perception is everything.
Perception guides the degree of public confidence. Without public confidence in the financial system in Zimbabwe, well-conceived and intentioned laws will not curb trading on parallel markets.

Convictions and jail time a key indicator effective curbing of corruption
In September 2018, Mnangagwa established a Special Anti-Corruption Unit housed in the Office of the President and Cabinet. According to The Chronicle of September 24, 2018, the Unit’s terms of reference include “collaborating with the Zimbabwe Anti-Corruption Commission (Zacc), the Zimbabwe Republic Police (ZRP) and other such institutions in the fight against corruption, assist Zacc and other investigative agencies of the state in the perusal and consideration of corruption dockets, subject to the issuance of Authority to Prosecute by the Prosecutor General, to prosecute corruption cases referred to the National Prosecuting Authority by investigative agencies.” But why create another layer of bureaucracy? Why is it “special”? Why is it housed in the presidency? Why not strengthen existing institutions?

Over the years the graft body, the Zacc lacked the necessary force for effectiveness because of its lack of independence. As it collaborates with the presidential unit, can we expect full independence and complete execution of its mandate? Your guess is as good as mine.

The point, whilst the setting up of more institutions to tackle corruption might appear to send a message across that there is political will to deal with this scourge, the truest test lies in the conviction rates of the bigwigs, some of whom are now parked at Zanu PF headquarters. A welcome development is the above-mentioned amending the Exchange Control and Money Laundering and Proceeds of Crime Acts through constitutional provisions of the Presidential Powers (Temporary Measures) Act. This act while giving law enforcement agents such as the police, the NPA and the Zacc have more teeth to compel suspects to explain their wealth, will also empower them to forfeit their unexplained wealth.

Zimbabwe needs to take a leaf out of the Zondo Commission into State Capture in South Africa. There are many layers and innumerable permutations with the Gupta Family central to the state capture dynamics allegedly enabled by the former president Jacob Zuma and those handpicked by him to authorise and sanction the deals. Dealing with corruption in Zimbabwe is not going to be a walk in the park because the culture of looting state resources was embedded in the previous dispensation and the current actors in this new dispensation were active members in that government.

Convictions and jail time will be a key indicator that there is serious commitment to curb corruption. When this happens, the citizenry will be convinced that the political power elite of Zimbabwe is not above the law. The haphazard and sporadic jailing of former cabinet ministers will remain as mere victimisations until the state wins the corruption trials; there are convictions of specific corruption charges and the perpetrators sent to jail.
Without that, the political rhetoric will remain just that — pretentious and smoke and mirrors.

Gloria Ndoro-Mkombachoto is an entrepreneur and regional enterprise development consultant. Her experience spans a period of over 25 years. She can be contacted at totemshumba@gmail.com