By Isaac Mwanza
The audio recording which has been circulating on social media in recent days, detailing how the decision by the Anti Corruption Commission (ACC) to prosecute former Health Minister Dr Chitalu Chilufya was arrived at, must be of grave concern to everyone who believes in the rule of law and brings into question the independence of the Anti-Corruption Commission which, together with the Drug Enforcement and other Commissions, are key governance institutions in the fight against corruption as well as in curbing financial and economic crimes.
Going by the content of the now notorious audio recording of a senior staff meeting of the ACC, it is clear that there is now a serious crisis of confidence both at the Commission itself and in the nation at large. We need to examine the circumstances which have given rise to this crisis of confidence.
So, what has led to the ACC being in the position where it has found itself now, with the leaked audio recording?
1. Lack of autonomy by the ACC
The Anti Corruption Commission has failed to achieve the required autonomy from those who surround the political leadership under whom the ACC has been placed. The quest to grant the ACC an autonomous status – not just in word but in deed – seems to be eluding Zambia once again as the new administration of President Hakainde Hichilema has just copied and continue to implement the same style of previous regimes of putting the ACC under the office of the President.
Between 1995 and 2010, I did a lot of work with the Anti Corruption Commission. This period spans from my high school days, through to my work in civil society. All along, the focus by civil society and the ACC itself, was to seek the autonomy of the Commission.
In 1996, the MMD government of President Frederick Jacob Titus Chiluba, made strides to give the ACC some form of functional independence when they repealed the Corrupt Practices Act No. 14 of 1980 which made the Commission subject to the control of the President. Section 5 of the then new 1996 Anti-Corruption Commission Act (now repealed) read:
“5. The Commission shall not, in the performance of its duties, be subject to the direction or control of any person or authority.”
Did this give the Commission the independence it required? The direction, in terms of how the ACC was to carry out the tasks under the Act, were still made by the President in accordance with the then Section 63 of the Act. It is only true that members of the public, apart from MMD members, never believed President Chiluba when he said that his administration was not going to interfere with the operations of the ACC, despite it being placed under his office.
In 2012, the Patriotic Front (PF) government under President Michael Chilufya Sata, retained the functional independence of the Commission and went one step further to delink the Commission from the President by amending the Act so that the President would no longer make regulations for the Commission, and allowed the Commission itself do that.
In 2016, the PF government under the 6th President of Zambia, Edgar Chagwa Lungu took an early step to entrench the Commission’s autonomy by way of a Constitutional amendment which not only recognised the ACC as a creation of the Constitution, reaffirming that, like other Commissions, would not to be subject to the direction or control of any person or authority but also proclaimed its independence status.
Indeed, the new provision in the Constitution as amended in 2006 now combines the institutional independence of the Commission with the functional independence it has always been vested with since 1996. Article 216 of the Constitution now reads:
“216(b). A commission shall be independent and not subject to the control of a person or an authority in the performance of its functions.”
The question can still be asked whether the Commission could have been said to have finally gained the long-fought for institutional independence under the 10 years of the PF rule.
Although numerous pronouncents were made by the Republican President and his administration that the ACC was to function independently, the latest recording of the Director General and her staff, speaks volumes about what happens behind closed doors when the Commission is placed under another office. During the PF reign, the ACC was under the Office of the President and many pronouncements, as are being made today, were made that the ACC has an autonomous status.
2. The ACC under the New Dawn Administration
The newly elected President, Hakainde Hichilema, appeared not to have had a plan on how to free these institutions and truly make them autonomous and separate from his office. Like his predecessors, he prides himself by placing the Anti Corruption Commission under his office and offering the same promise offered by his predecessors about the independence of these institutions.
I watched with much sadness how Mr. Hichilema’s Vice President, Mrs. Mutale Nalumango, energetically responded in Parliament that her new Dawn Administration has just placed the ACC where the outgoing PF administration had left it, and gave the same promise we have been hearing, from President Chiluba to President Lungu. When you think that you have heard something different, the change remains the same.
At the rate this administration is going, of doing the same thing and saying the same words previous administration have said about the Anti Corruption Commission, the similar scandals such as the one which exposed how Dr. Chitalu Chilufya was to subjected to persecution using the ACC, will continue behind the ACC boardroom doors. The Anti-Corruption Commission should not be independent because our politicians say so, but should be independent because that is what the Constitution and to the law, demand.
3. Immunity of the ACC Director-General
Lastly, let me comment on the immunity enjoyed by the ACC Director General and officers in light of the exposé we have been listening to these past few days.
Section 17 of the ACC Act states:
“17. (1) No proceedings, civil or criminal, shall lie against the Director-General, Deputy Director-General, Directors, Secretary, an officer or member of staff of the Commission for anything done in good faith in the exercise of the officer’s or member of staff’s functions under this Act.”
Although this sounds like blanket immunity enjoyed by the Director General and ACC staff, the immunity is only for anything done in good faith. The leaked audio now confirms what the ACC investigation officer told the Court about the cases involving Dr. Chilufya; that he found nothing wrong with the acquisitions Dr. Chitalu Chilufya had and his investigation had yielded nothing. Indeed, the good doctor’s prosecution was motivated by malice with full knowledge by the then Acting Director General that she was protected by the immunity conferred by this provision in the Act.
The recent happenings should be a call on Parliament to refine the ACC Act by making provisions with regard to instances in which the immunity of the Director General can be removed, so that they can be answerable for things done in bad faith. If our country was able to remove the immunity of former Presidents a number of times, why shouldn’t the law also provide for removal of immunity of other constitutional office holders as well as the staff of various Commissions so that they can be held to account for acts which can be proved to have been done in bad faith and therefore constitute an abuse of the office or power of the Commission.
It is important, and urgent, that the three arms of government should take steps to restore our country’s confidence in our institutions of governance, particularly in the area of law enforcement. The Executive, under President Hichilema must let go of the Anti Corruption Commission and allow it to operate independently, and not placed under his office as was done in the past and continues to be done under Mr Hichilema’s administration. The Judiciary has a duty to protect the institutional and financial independence won by Commissions such as ACC in addition to the functional independence it has always had. If nothing change under the new dawn administration and the ACC independence remains at the word of mouth coming from these politicians, which we have heard from all regimes, the ACC will remain in its current weak and compromised position used as a tool to prosecute political opponents, as was done to Dr. Chitalu Chilufya, by those who are closely connected to give some instructions behind closed doors.
The Author is the Center Director at the Center for Constitutionalism and Legal Justice in Zambia