Fighting Corruption in arrears

By Isaac M. Mwanza

“Corruption fights back.” Those were the words of Anti-Corruption Commission (ACC) Board Chairman, Musa Mwenye, SC during his recent press briefing.

When I first saw documents on social media that were purported to have been authored by Republican President, Hakainde Hichilema, and other senior government officials, I knew at first glance, that the documents were mere forgeries and therefore false.

False as those documents were, it prompted my desire to discuss the existence of secrecy laws as well as the need for the Access to Information law, but also their impact in the fight against corruption.

We live in an era where fighting corruption and abuse of office in many African countries continue to be challenging and dangerous. This crusade can be dangerous for both the vigilant media and investigative journalists in several ways. Corruption does fight back when individuals wield so much influence and have tools such as secrecy and confidentiality laws to intimidate and silence the media.

The fight can be a challenge to “independent” anti-corruption bodies that are placed to operate under the executive arm. In that scenario, it is also possible for anti-corruption bodies to be abused, silenced or to become abusers themselves.

To understand this, we must ask ourselves two vital questions: How is it that cases of corruption that happened yesterday, seem to have only become known to anti-corruption bodies only when, or after, yesterday’s administration was removed from power? Secondly, does the discovery of corruption which occurred under previous regimes, suggest that anti-corruption bodies did not know then about the existence of alleged corrupt acts, or did they know but were afraid to act?

Corruption can fight back against whistle-blowers and those who report or expose incidences of corruption. This fight back becomes a big deal when corruption and abuse of office involve appointees or elected holders of high political office such as board members, senior managers or politically-connected persons (PCPs).

In Zambia, there are two major hindrances in the anti-corruption crusade. The existence and abuse of archaic legislation such as the State Security Act, which forms the basis for government’s document classification system, promotes the classification of documents as Secret, Confidential etc., and penalises their release or publication. The other hindrance is the absence of an Access to Information law.

Of course, there could also be minor issues such as resources but this usually has not been an issue as Zambia’s cooperating partners, for so many other reasons, inject considerable resources into this fight.

Because corruption is a white-collar crime, bureaucrats and senior managers involved in the vice usually cover their tracks by classifying their documents as either confidential or secret.

This is especially true of documents such as supply contracts, employment contracts, etc., which may be linked to corrupt deals or abuse of office. These documents end up being marked as secret or confidential so that they are not ordinarily accessible to lower-level operatives and staff. A junior officer who leaks such documents to the media or the public generally risks being cited for an offence under secrecy laws.

For the media and public who employ investigative skills to gain access to such documents, corruption does fight back using the very systems that ought to protect public resources. In such an environment, the corruption crusade is the one that suffers a serious blow.

After the celebrated Supreme court case of Liswaniso, it is no longer the concern of our courts on how evidence was obtained by law enforcers. What is their concern is the crime arising from the evidence. Equally, it shouldn’t be the concern of anti-corruption bodies how documents linked to corruption and abuse of office found themselves in public hands. What should be the concern of the ACC should be the details of corruption and abuse.

Although Zambia has enacted the Public Interest Disclosure (Protection of Whistle-blowers) Act, 2010, there is no guarantee that corruption would not fight back against those who blow the whistle in order help government to protect public resources.

President Hichilema has nevertheless made a couple of good pronouncements on the need to root out the vice, by declaring a policy of zero-tolerance against corruption under his administration. However, the President should, or ought to know, that corruption has continued to happen under his administration. We see it, we hear it, we smell it.

The period of transition could have been the worst as some civil servants dipped their hands into public coffers and others even altered their contracts. These civil servants knew they would begin singing a new tune with President Hichilema and his regime to avoid being held responsible.

They planned to heap the blame on misuse of public resources and abuse of office on the defeated political leadership. They tried to cover their tracks but nothing remains hidden under the sun.

If President Hichilema wants to win or make progress in this fight, he needs to do three things, as a matter of urgency: First, the President must amend the secrecy laws; Secondly, he must enact the access to information bill; and thirdly, he should restore the ACC’s independent status by removing it from falling under his or any other office.

For many civil servants I have interacted with, reporting corruption to the ACC can be a hard decision to take, and they have good reasons for this hesitation. A good number who reported corruption to ACC in the past complain that persons who are reported usually get to know who reported them, making the reporting officer or whistle-blower, a target for abuse by retaliation at work.

If we are serious about fighting corruption, it should not be a crime for anyone to access and publicise documents marked as confidential or secret if the same were used in committing, perpetrating or covering up corruption or abuse of office. It is sheer civil service madness to be classifying every document you want to hide from the public as secret or confidential.

The President, his Attorney General and Secretary to Cabinet must demand that only documents befitting the status of state secret or confidential should be classified so. How can your salary, your contracts of employment be secret or confidential?

The existence of secrecy laws instils fear in potential whistle-blowers who rely on classified documents. It also contributes towards abetting plunder of public resources under the veil of secrecy or confidentiality.

The enactment of an Access to Information law would be a very important tool which would help this country by allowing citizens, including the media, to access public information held by public bodies.

Of course, it would be common sense that the right to access such information should come with a corresponding duty or obligation on the part of those who do so, not to abuse such information once they have accessed it. Regardless, if we manage as a country to enact the access to information law, public officers will act more responsibly knowing that the owners of public resources are watching.

I have no doubt that this administration is determined to enact this law alongside a complimentary media self-regulation law. But the administration has made enough pronouncements. It’s now time to act and show that this administration can pass these bills during this parliamentary session, if they are to be seen to be different from the last two previous regimes.

Finally, President Hichilema must also make some bold institutional changes at the ACC. The Commission is intended to be one of the most independent commissions created by the Constitution of Zambia. However, it has always been attractive for all past regimes to keep the Commission under the ambit of the President’s office.

The underlying assumption in the placement of the ACC had been that the Republican President and those who are part of the Presidency, would always act in good faith and not compromise operations. But history is teaching us the opposite.

Today, this Commission is busy dealing with the corruption that allegedly happened under the previous regime, most of which the ACC probably knew back then, but did nothing about. Tomorrow, the same Commission will be dealing with corruption that is happening under this regime and they will have a good excuse for doing so when that time comes.

The officers will probably be singing the loudest about a new President, that he or she is showing more political will to fight corruption than former President Hichilema.

In fact, ACC officers are overemphasizing the saying they coined: “we shall fight corruption yesterday, today and tomorrow.” What is a predictable pattern in Zambia, though, is that corruption is always fought in arrears.

Those who expose corruption of today do so at great risk, and can become targets for persecution and prosecution under different laws.

But corruption must be fought today. It is essential that we begin to fight corruption today, so that the fight is not only successful but also effective in protecting public resources.

A renewed focus on present-day corruption will also help in taking away the perception – rightly or wrongly so – that the current anticorruption drive is nothing more than a crusade to settle political scores using our noble institutions of governance.