Source: Reflections on ZACC appointments | The Herald April 3, 2019
Sharon Hofisi Legal Letters
To fight corruption, we need to essentialise merit-based appointments whenever the opportunity arises.
In this way, we can add a constitutional commitment which will speak to accountability (vertical and horizontal), good governance (including responsiveness, transparency and justice).
Ultimately, we create a future in which we can celebrate the beauty of merit-based appointments that bind us together as a nation.
Addressing corruption in its variegated forms is no different from threading a needle with your eyes wide open.
Calculatingly, you try to focus on constitutional frameworks, public concerns, institutional arrangements, adverse reports, positive reports and so forth.
Constitutionally speaking, ZACC is a Chapter 13 institution which deals with mandates to deal with corruption cases.
It can work with the National Prosecuting Authority (NPA) in dealing with corruption cases.
Its work and appointments doubtlessly court every Zimbabwean’s thoughtfulness.
While ZACC largely investigates instances or allegations of corruption, the NPA prosecutes such cases and courts of law adjudicate upon them. We may have recently seen instances where concerns have been raised between the role of prosecutors under the anti-corruption unit and the NPA.
The current government under President Mnangagwa has established a special anti-corruption unit which enables the Executive or the Presidium to be actively involved in the fight against corruption.
While the prosecutorial powers of lawyers in that Unit may be seen as conflicting with the NPA, the unit is in a way important in ensuring that the executive takes graft issues seriously.
The Judiciary has also established corruption courts and Chief Justice Luke Malaba has emphasised on the need for members of the judicial community to ask themselves questions that encourage them to work hard at their respective work stations.
Against Corruption Together (ACT) is also another way of ensuring that everyone in the legal or justice fraternity strives to fight all forms of endemic, systemic or institutionalised corruption: palm greasing, pocket acknowledgment, flawed record management, back stamping, and so forth.
For ZACC’s current appointments, reportage has focused on the appointment of Justice Matanda-Moyo to lead the corruption watchdog.
Emphasis has been placed on the need to promote balanced reporting on her potential to turn the corruption watchdog into an effective institution.
Her stellar reputation as a judge shows that appointing someone with judicial disposition can ensure ZACC discharges its constitutional mandate in a way that will largely avoid shoddy investigations in corruption issues.
The cancerous nature of corruption demands that cases be properly investigated and evidence be uncontaminated before prosecution.
Someone who has held judicial office can greatly enable ZACC to solve evidentiary problems in a practical manner and she can do this by ensuring that investigators ask a pertinent judicial question: why wouldn’t a court of law accept the evidence of this particular case?
The institutional team of ZACC investigators, commissioners and secretariat can tap from her judicial knowledge to know what to keep to itself or what to defer to other constitutionally-established institutions like NPA.
Justice Matanda-Moyo’s leadership breakthrough may be practice-based, but off course for the critical citizen, it wouldn’t be individualistic.
She, just like all Zimbabweans, must start by appreciating that a polity which invests its energies in trust-building prides itself in making a collective resolve on issues that bedevil it such as corruption.
Zimbabwe has a high corruption perception index and we must adopt ways of appointing ZACC officials in what I may call “norm and merit oriented” appointments.
This is because the allegations against the previous commissioners was largely that they did not do a lot to fight corruption as contemplated by the Constitution.
The paramount principle of norm-cum-merit oriented appointments is that those appointed must have prepared themselves, constitutionally, to ensure that cases that are being investigated are properly vetted in a manner that speaks to twin pillars of public trust and confidence.
The logical corollary to this is that cases without evidentiary sufficiency must be discarded from the docketing system and those with ample evidence must be referred to institutions such as the NPA.
The working principle of norm-merit oriented appointments involves asking not just what the adverse reports against appointees emphasize, but why the appointee may be the best broom in promoting institutional efficiency, visibility and transformation.
It is always believed that the ‘why’ question uncovers deeper interests in a seemingly complex conundrum- and effectively, allows disputants to find inventive ways of allowing the appointees to be given a fair chance to prove that they can turn things around. ZACC investigators can also essentialise on the need to follow due processes at all material times.
We can’t just spotlight everything on what critics usually call ‘adverse’ or take their criticisms to every town. We must simply adopt a practice-based perspective and ask ‘why?’ to explain why we may need a judge, clerical person, woman, man, civil society activist, former ZACC official, or a new broom from any profession, trade or occupation to bring a clean slate or turn-around strategy to ZACC other public-based enterprises.
In all this, we mustn’t miss our current opportunity to get diverse experiences from practice-based and constitutionalised ways of fighting the scourge of corruption.
The names and dispositions of appointees may make headlines in 2019, we must just learn how to become trust and nation builders while at the same time we meritoriously celebrate our own people who can give us boats to float our values for the benefit of our polity.
Sharon Hofisi is a UZ law lecturer. firstname.lastname@example.org