EDITORIAL COMMENT: Build up crack teams for corruption cases

THAT more than 100 people in Zimbabwe are now being actively investigated over grabbing illegally more than US$70 million in assets through money laundering and other forbidden ways will probably not surprise many.

Corruption levels have been falling fast in the Second Republic, but we are still not close to zero, and in far too many cases the crimes have taken years to discover and investigate so we still have a lot on the books where the assets were grabbed way before the Second Republic.

But the very fact that more than 100 people have now been identified and that action is being taken not just to prosecute, but also to claw back the ill-gotten gains is a strong sign of progress.

The National Prosecuting Authority has been building up its capacity to do both jobs, get the guilty behind bars and get the money and other assets back, and this is now reflected in Zimbabwe assuming the presidency of the Asset Recovery Inter-Agency Network of Southern Africa, Arinsa.

So our neighbours accept that with the progress we have made we can help make things better, rather than worse.

Giving details of the efforts of the National Prosecuting Authority, a spokesman over the weekend said there were 30 cases involving US$20 million pending further investigations, 12 applications for forfeiture of US$15,5 million in assets, 21 cases brought by the authority’s Asset Forfeiture Unit for US$10,8 million, requests for international co-operation to claw back US$2,7 million and investigations into property totalling US$3 million.

Of course those under suspicion do not just sit there. Besides the sort of defence tactics, all quite proper and legal, in criminal cases, where there seems to be a definite attempt to prolong the prosecution that witnesses if not the accused will be dead by the time a trial starts, there are also other legal processes to delay the claw back of assets in the civil actions.

One major source of legal action comes over the 25 cases involving preservation court orders and dealing with assets totalling US$9,3 million.

Now a preservation order is not dealing with any proof that an asset is illegally acquired, with that still to be determined.

What it does is forbid the owner of the asset from destroying it or any of the documentation and the paper trails involved.

This means that the investigation is in progress and that the investigators want the asset still there at the end, and want the courts to have access to the paper trail if a prosecution is pressed.

But while the innocent might well find such orders a minor irritation, since they have nothing really to hide, but would prefer not to be under active investigation, others feel their rights are being compromised.

There are five legal appeals with the Supreme Court over these orders, involving US$1,4 million, and someone has gone to the Constitutional Court over assets of US$250 000, a small figure in the circumstances, trying to have the Money Laundering and Proceeds of Crime Civil Forfeiture Provisions declared constitutionally invalid.

So the National Prosecuting Authority has its legal work cut out.

The public sometimes are unfair over what they see as “catch and release”, in these sort of cases and other corruption cases. People are arrested, granted bail by the courts who are there to enforce constitutional rights, and then we wait for ages for any further court action, like a trial or at least a civil suit to recover the assets.

There has been some blame-games in the past, with different authorities blaming the others, although new Prosecutor-General Justice Loice Matanda-Moyo, both in her present post and in her previous incarnation as chairperson of the Zimbabwe Anti-Corruption Commission, has been careful not to try and blame others, but instead has been calling for ever closer ties between those who have to investigate crime and those who have to prosecute it, and for desiring adequate human and other resources to do this.

This is the correct approach. We hope that with her background and her present post she will be able to remove ever more of the “silo mentality”.

At the same time Zimbabwe may even need to change its formal systems of investigating crime, at least the small percentage of really serious crime, by establishing more formal links between investigating and prosecuting.

In many American states, for example, the district attorney who prosecutes a case is involved at a fairly early stage in the investigation, helping the police identify gaps in the chain of evidence and being able to make decisions over full or partial immunity for accomplices willing to testify. Often someone with a secondary role can escape prosecution for singing like a canary.

In many parts of Europe, the investigation and prosecution of a really serious crime is overseen by a person sometimes misleadingly called an investigating magistrate, who works with the police and the prosecutor sent into the criminal court, linking the two very closely all the way from first report to verdict.

Both the American and the European systems work to develop a lot of teamwork that investigates and prosecutes effectively without trampling on anyone’s rights.

Of course it does require efficient officers heading all the teams. Here the need for human resources becomes important. Money laundering and corruption can be relatively crude when done by total amateurs.

But regrettably many of those involved are far more sophisticated criminals than the person collecting envelopes of cash in a dark corner or just moving money between bank accounts.

Audits, both private in private-sector companies, and by the Auditor General in the public sector, help to uncover many of sordid dealings and at least give the investigators a starting point, although often this is over a year since the dubious transactions were done.

But few police and few prosecutors have advanced accountancy qualifications, and often while their advanced training can get them to point where they understand what a complex fiddle involves, they still need help to sift the evidence.

The Smith regime, of all people, might provide a pointer when the then police commissioner decided to manipulate the call-up system for white men under 50.

Experienced chartered accountants over 35 could serve in the fraud squad. The police might need professional accountancy types on their teams, and the prosecuting authority then able to work with these to finalise the case and call them in as witnesses to nail down the facts.

It is also clear that we might need judges with a background in commercial law and finance for special corruption courts. We already have a commercial section for the High Court, so this is just an extension in many ways.

It would be most effective with judges who can navigate through complex financial fact and evidence and who can make reasonable assessments of the value of that evidence and the counter-arguments against it.

In criminal High Court corruption cases, having at least one of the assessors being an accountant would seem advantageous.

We are getting a lot better at investigation and the legal follow-up processes.

Our main task is now to speed up investigations, and have prosecutors ready and able to present the cases in court, remembering all the time that the top level of criminals also try and improve their criminal sophistication. But we can win.

Herald