Why Grace Mugabe’s donations of state property are unconstitutional
By Alex T. Magaisa
On Wednesday 21st October 2015, during a parliamentary debate, Vice President Emmerson Mnangagwa disclosed that the agricultural equipment distributed by the First Lady, Grace Mugabe, at two recent Zanu PF rallies, in Chimanimani and Rushinga, was part of a US$98 million loan facility extended to Zimbabwe by Brazil under the Zimbabwe-Brazil More Food for Africa Programme. In other words, this was State property.
Probed further in regard to the capacity in which Grace Mugabe distributed the equipment, Mnangagwa was in evasive mode, arguing that she had merely “handed over” and not “donated” it. “What is happening is that the First Lady is not donating but handing over equipment …” said Mnangangwa, according to Hansard.
This was in sharp contrast to the message of the First Lady’s purported benevolence that had accompanied the distribution of the equipment at the party rallies.
Not satisfied with the response MDC MP, Nelson Chamisa, had a further question, “I want to hear from the Hon. Vice President how a Secretary for Women’s Affairs adorned in party regalia is handing over Government resources at a party meeting?” He was obviously and appropriately questioning the propriety of distributing State property in a patently partisan manner.
Mnangagwa’s response was that of a man struggling to justify the First Lady’s role. “After the First Lady had done her political work, she did Government work and handed over… – [HON. MEMBERS: Inaudible interjections.]… this irrigation equipment as allocated by the Government of the Republic of Zimbabwe which is a ZANU PF Government” said Mnangagwa, unconvincingly.
After this brief exchange, the Speaker indicated that he was not going to entertain further supplementary questions on the matter. Thus, despite the Vice President’s unsatisfactory effort to explain what had happened, the matter seems to have ended without a proper conclusion.
Nevertheless, it remains relevant to analyse it further and assess whether there were constitutional breaches in the manner in which the distribution of agricultural equipment from an external loan was conducted. I will do this by assessing what happened against the standards in respect of state property as set out in the national Constitution.
Does the agricultural equipment constitute public property?
Section 308(1) of the Constitution defines public property as:
“any property owned or held by the State or any institution or agency of the government, including provincial and local tiers of government, statutory bodies and government-controlled entities”.
As the agricultural equipment is property that is held or owned by the State, it is therefore public property.
In terms of s. 302 the Constitution, the loan falls within the Consolidated Revenue Fund (CRF) which is the account “into which must be paid all fees, taxes and borrowings and all other revenues of the Government, whatever their source …” The Brazil loan is a borrowing of the State and therefore falls broadly within the definition of the CRF. In any event, s. 304(1) of the Constitution also provides that “All debt charges for which the State is liable must be charged upon the Consolidated Revenue Fund”.
All this implies that there can be no question whatsoever, that the agricultural equipment from the Brazilain loan constitutes public property. The State and public officials under whose charge the equipment is held are the custodians of this public property and were expected to safeguard and deal with it in accordance with the Constitution.
What are the duties of custodians of public property?
- 308(3) of the Constitution provides that:
“It is the duty of every person who has custody or control of public property to safeguard the property and ensure that it is not lost, destroyed, damaged, misapplied or misused”.
Thus the Government, and in particular the Ministers of Finance or Agriculture, who are the custodians of such equipment under the Brazilian loan, have a duty to ensure that the property is not “misapplied or misused”. Whether or not the property has been “misapplied or misused”is a question of fact and depends on the interpretation of events. It is arguable that the appropriation of public property and its distribution by a person who is not a public official under the guise of a personal or party donation is a misapplication or misuse of public property.
In this case, Government and public officers allowed public property to be distributed by a private individual. Further, critics argue that when the First Lady was distributing the equipment at the two party rallies, there were misrepresentations that these were donations being done on benevolent grounds. Indeed, despite the Vice President’s attempts to distinguish it as “handing over” and not a “donation”, the impression given at the rallies was that these were the First Lady’s donations. To the extent that there was no disclosure that this equipment was in fact public property from the Brazilian loan to the nation, the whole charade could be regarded as a gross and fraudulent misrepresentation tantamount to criminal abuse of public property.
There is an arguable case that the Government and relevant Ministers, as custodians of public property, failed in their constitutional duties and are therefore in breach of the Constitution.
Is the First Lady a public officer?
No, the First Lady is not a public officer. In fact, the First Lady is not recognised under the Constitution. It is merely an informal title given to the wife of the President and has no constitutional bearing or authority whatsoever.
Legally, the person of the First Lady is just a private individual. That is why she does not take any oath under the Constitution. She is only accountable to her husband in a private marital arrangement. The constitutional authority of her husband as President is not transmitted to her by reason of marriage or other association.
Furthermore, the definition provision of the Constitution, s. 332 defines a public officer as “a person holding or acting in a public office” and a“public office” as “a paid office in the service of the State”. The First Lady is therefore not a public officer as she does not meet the criteria. She is not a public officer because she does not hold public office.
There is, therefore, absolutely no constitutional or legal basis upon which the First Lady can handle, distribute, donate or hand over public property. It might even be argued that those authorising or permitting her to distribute public property are failing and/or neglecting their constitutional duties as public officers.
It is unconstitutional and illegal to allow a private individual to masquerade as a philanthropist or benefactor in regard to property that is at law, public property. That the distribution has been done under the auspices of the party or in a personal capacity only exacerbates the illegality.
Even if it were considered that she is a public officer, there is also s. 196(2) of the Constitution, which outlines stern duties which are more likely to have been breached given the manner in which public property was distributed:
“Public officers must conduct themselves, in public and private life, so as to avoid any conflict between their personal interests and their public or official duties, and to abstain from any conduct that demeans their office”.
What can be done in the circumstances?
- 304(4) of the Constitution provides that a law must make provision for quick detection of constitutional breaches and the disciplining and punishment of persons responsible for such breaches and, where appropriate, the recovery of misappropriated funds or property. However, there is no specific legislation for this yet, since the Government has not re-aligned legislation to implement the Constitution. This does not, however, mean that nothing can be done.
The Office of the Auditor-General, established under s. 309 of the Constitution is designed to deal with issues like this one. S. 309(2) (c.) provides as one of the Auditor-General’s functions that he/she can “order the taking of measures to rectify any defects in the management and safeguarding of public funds and public property” and s. 309(3) further states that “Public officers must comply with orders given to them by the Auditor-General in terms of subsection (2)(c)”.
Therefore, if there is misapplication or misuse of public property, the Auditor-General has a constitutional duty to take action to ensure there is rectification and public officers so ordered must comply.
What can Parliament do?
It is useful that MPs raised the matter in Parliament but it is also regrettable that it only received a brief amount of attention. Parliament does have an important oversight role in relation to State property, including revenue and expenditure. S. 299(1) provides that:
“Parliament must monitor and oversee expenditure by the State and all Commissions and institutions and agencies of government at every level, including statutory bodies, government controlled entities, provincial and metropolitan councils and local authorities”.
Clearly, how Government uses and distributes proceeds of a national debt forms part of the expenditure that Parliament is required to monitor. Furthermore, s. 119 enjoins Parliament to protect the Constitution and to ensure that the provisions of this Constitution are upheld. All organs of the State are accountable to Parliament.
Parliament has the power to call upon the relevant public officers to account for the distribution of public property by a private individual and in a manner that is inconsistent with the Constitution. S. 107 (2) gives power to Parliament to call the Vice-President, Minister and Deputy Minister to attend Parliament and its committees in order to answer questions concerning matters for which they are collectively or individually responsible. The relevant committees, for finance and agriculture, have the power to call the relevant Ministers or Vice President to answer specific questions regarding the distribution of public property in this matter.
- 298 provides for the principles of transparency and accountability in financial matters and the use of public funds in a manner that is transparent, prudent, economical and effective. It also states that“public borrowing and all transactions involving the national debt must be carried out transparently and in the best interests of Zimbabwe”.This is a matter that patently involves public borrowing and the distribution of public property arising from a debt must be done transparently.
Parliament has every right to demand answers and corrective measure and there are avenues for it to achieve this. Has there been a breach of the Constitution regarding the distribution of property from the Brazilian loan? Clearly, the evidence points to a breach. But as this is the first phase of the $US98 million loan facility, there is more to come and it is important to ensure that the abuse and misuse does not persist.
waMagaisa
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