President Emmerson Mnangagwa has been caught offside yet again after he created a Special Anti-Corruption Unit (SACU) in his office dismissed by legal experts as a nullity because it has no legal basis.
In a statement issued on Monday, the chief secretary to the President and Cabinet, Misheck Sibanda, said the unit would be housed in Mnangagwa’s office.
“The overall objectives of the unit shall be — to improve efficiency in the fight against all forms of corruption and to strengthen and improve the effectiveness of the national mechanisms for the prevention and fight against corruption in accordance with the anti-corruption strategy,” said Sibanda.
“The members of the unit will be announced in due course,” added Sibanda.
But legal experts canvassed by the Daily News yesterday said the declaration was in breach of the country’s laws as there was no legal authority allowing him to interfere with the prosecution authority, which lies in the Prosecutor General (PG).
Tinoziva Bere, a legal expert, cautioned against the creation of parallel structures, saying Mnangagwa must make use of existing policing, investigating, advisory and prosecuting arms of the Executive.
“There is only one PG. The president has no power to appoint a set of prosecutors answerable to him or his office. The president directs the army to defend the country; the Executive investigate through the police, the Attorney General (AG) advises government, the PG prosecutes independently; the lawyers defend and courts adjudicate,” he said.
“This is elementary constitutional law. If the PG has failed, the Constitution has provisions for his removal and replacement. The president cannot lawfully set up and or run unlawful parallel structures,” opined Bere.
After he came to power following a military takeover of government last November, Mnangagwa declared war on corruption.
But critics dismiss his abhorrence for corruption as all froth and no beer because the blitzkrieg has not nailed a single person thus far, and is being perceived as targeting those who resisted his ascendance to power.
Mnangagwa himself has not hidden his displeasure with the lack of teeth demonstrated by those tasked with fighting graft.
He said as much in his latest statement issued through Sibanda, revealing his unhappiness with the snail’s pace of progress in tackling corruption.
The creation of SACU could therefore be a vote of no confidence in the police and the Zimbabwe Anti-Corruption Commission (Zacc).
Constitutional law expert, Craig Lennington, said Mnangagwa has no basis for establishing the unit, never mind its noble intentions.
“They might be some problems because the bodies that already exist are dealing with this. Public bodies depend on legislative bodies and it is hard to see where it derives its powers from, he needs to clarify what legal instrument he is using to set the unit,” said Lennington, a University of Zimbabwe lecturer.
This will not be the first time that Mnangagwa has been caught offside, legally.
Since his appointment in November last year, he has lurched from one legal mistake to the other – from is decision to mess up with ministerial appointments; his pronouncements in Davos that elections will be held in May when under the Constitution the earliest polling date is July 23rd and the last date is August 21 or also giving an ultimatum to those who externalised money and assets when he does not seem to have a legal basis for it.
Alex Magaisa, a United Kingdom-based law lecturer, wrote on his website that Mnangagwa’s office should keep away from prosecution functions.
He said in terms of the Constitution, the legal authority to prosecute vests in the National Prosecuting Authority (NPA), the only agency that has the power to prosecute on behalf of the State.
“In this regard, section 258 states as follows: ‘There is a NPA, which is responsible for instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions’,” he said.
A former advisor in the office of the late Prime Minister Morgan Tsvangirai, Magaisa, said the president should not even be seen to be managing those who prosecute.
“Any person who exercises prosecution authority assisting the PG must be employed by the board of the NPA and must work under the direction and control of the PG. It is unconstitutional to give prosecution authority to persons who are controlled by the Office of the President. It is also unconstitutional for anyone, including the Office of the President, to direct or control persons who are exercising prosecution authority.
“Since it is illegal and unconstitutional to exercise prosecution authority outside the NPA and the PG in the absence of any established legal authority, any legal action or prosecution that is performed in that manner would be fatally flawed. In other words, challenged in a court of law, it would be a legal nullity.
“The problem that the president has identified at the NPA can be solved without undermining its independence and integrity. If it is a question of resources, then all that needs to be done is to invest resources in the NPA. The lack of resources points to a systemic problem which needs a comprehensive solution that does not leave the NPA exposed. If the PG has agreed to this solution whereby he would have to give prosecution authority to persons who are outside his control and are housed in the Office of the President, then he too is undermining his office and the Constitution,” said Magaisa.
Political scientist Eldred Masunungure said the creation of yet another body fighting graft adds to the confusion instead of tackling the cancer that is corruption.
Masunungure said it is further confirmation of what some political scientists call ‘‘wicked politics’’.
“He appears to be in sixes and sevens and that is the complexity of the problem. You don’t deal with that problem by creating more and more institutions when we have some that are in the Constitution including NPA, Zacc – we now have this other unit, which is an administrative unit to add to the confusion and I don’t take it seriously because it is accountable only to the president,” he said.
“It has no freedom to move and is restricted in a manner that is favourable to the president. This is a symbolic move, this is meant to impress but he must face such problems head on and not going around the bush as he is doing now,” added Masunungure. DailyNews