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ADV JACOB MUDENDA . . . “As long as we have human beings there will always be corrupt tendencies and crimes related to corruption emerging from time to time”

Lloyd Gumbo THE INTERVIEW
The Third Session of the Eighth Parliament has come and gone. A number of things happened and laws were passed during that session. President Mugabe is expected to open the Fourth Session of the Eighth Parliament on Thursday. Our Senior Reporter Lloyd Gumbo (LG) caught up with National Assembly Speaker, Advocate Jacob Mudenda (JM) to reflect on the last session and what we can expect in the Fourth Session.

LG: What would you say are some of the success stories of the Third Session and which areas do you want improved in the Fourth Session?

JM: In Third Session first of all, we saw an acceleration in the alignment of (laws) to the new Constitution. This has been achieved through close interface with the Ministry of Justice, Legal and Parliamentary Affairs. We are very happy that the Ministry of Justice, Legal and Parliamentary Affairs has come up with a user-friendly website to which Parliament will be linked. That will give us a tracking mechanism of how far the ministry, working together with Parliament, has achieved the alignment in terms of what has been done, what is being done and what ought to be done in the near future.

The other has been the capacitation of our parliamentarians. We have held several capacity building workshops including a workshop on the appreciation of Sustainable Development Goals, which were passed by the United Nations and Zimbabwe signed for the approval of those Sustainable Development Goals.

At a personal level, I am pleased to say that after my appeal in 2014 to all Members of Parliament that they should improve their professional and academic proficiencies, we have now nearly 100 Members of Parliament who are back at school as it were. Two are at certificate level and diploma level and the majority are doing first degrees and second degrees. I think there are about four who are pursuing doctoral studies with some universities.

The idea is that we recognise that come 2018, when we have elections, a number of Members of Parliament may not make it back to Parliament. By equipping them with these professional proficiencies as well as excellence in their academic studies, we believe that they will be on their own and they will be able to take care of themselves and contribute to the national development agenda at a personal level in their various communities.

The staff also continues to improve themselves. You cannot have a capacitated leadership in Parliament by way of MPs if the staff lags behind in terms of its professional proficiencies. So, a number of staff members are now embarking on degree studies, the majority at masters level. Others have already completed their masters degrees. This will enhance the administrative staff support by an improved work- force within Parliament both academically and professionally.

The other area has been visible and audible participation of parliamentary committees in public hearings where they have met several communities, in particular in urban and peri-urban areas where the committees have looked at the various Bills and solicited the participation of the public in terms of Section 141 of the Constitution. This is very important because the quality of the legislation is as good as the extent to which the public participates in the legislative process. We want the people of Zimbabwe to have ownership of the laws that are passed by Parliament.

As for the future in the Fourth Session of our Eighth Parliament, I want to believe that our MPs are going to engage themselves in robust debate, which will be anchored on the legislative programme, which will be outlined by His Excellency, the President, Cde Robert Mugabe, when he opens the Fourth Session of Parliament.

In the Second and Third Sessions I was not quite happy that the reports tabled in Parliament by parliamentary committees with very specific recommendations for the executive but were not considered. I have discussed the matter with the Leader of Government Business, Honourable Vice President Mnangagwa, who has assured me that there should be some improvements in that regard.

Related to our envisaged performance in Parliament is the establishment of the Budget Office. We are very grateful to Treasury that it has allowed us to employ two economists/ accountants who will look at one, analysed budget, help parliamentarians and their committees in the preparation of the budgetary process and analyse economic policies from the executive.

This Budget Office is intended to expand, wherein we are looking at getting also some lawyers with some commercial bent and lawyers that understand the Constitution very well so that our development agenda is closely linked to the provisions of our Constitution. In the Fourth Session, we are hoping that we should employ two or three other officers to strengthen that Budget Office. We benchmarked this experience from Uganda. Their budget office is very vibrant and very robust. It is doing very good work in terms of microscoping the national budget and socio-economic policies that emanate from the executive.

LG: Coming back to the issue of public hearings, you have spoken at a number of fora of how important they are. You say the public have a right to contribute to the law-making process. This has been facilitated by your development partners who have come through. How have these been significant in terms of the law-making exercise in Zimbabwe?

JM: It has been very significant to the extent that the laws are made by the people through their elected representatives. The views of the people on the provisions of any Bill before it is enacted into law are critical to the extent that we want to see the public contributing qualitatively and not quantitatively, to the type of law that enhances the democratic processes and the rule of law as well as the observance of the Bill of Rights. The public must be facilitated to take part in the legislative processes.

In South Africa, for example, a group called Doctors for Life took the National Assembly of South Africa to the Constitutional Court after four health Bills had been passed with minimal involvement of the public. Those doctors argued very strongly and convincingly that those four pieces of legislation should not have been passed because public hearings were extremely inadequate. And the Constitutional Court agreed with the Doctors for Life and struck off those four pieces of legislation as unconstitutional.

What we need to see in Zimbabwe is that where Parliament has not acted in accordance with the Constitution, let the public take a stand by visiting the Constitutional Court to say Parliament has acted unconstitutionally. This is there in terms of Section 167 (2) of the Constitution which says: “Where the President or Parliament have not upheld the provisions of the Constitution, they have to be brought to account by the Constitutional Court.” Yes, Parliament can defend itself, but the beauty of it is that you have a public that is engaged in the legislative processes and wants to ensure that they are involved.

LG: From what you are saying it would seem public hearings are obligatory. But there are some quarters who feel public hearings are just for academic purposes because they argue the ministers would have already made up their minds that they will not take anything else. Are there any specific examples where issues coming from the public have found their way into the laws passed through Parliament?

JM: Yes, there are quite a number. For example, the Local Government Amendment Bill was very controversial. Members came up and voiced their positions in terms of certain provisions of that Bill. I was happy to see the Minister of Local Government taking these on board during the committee stage where amendments are done. Amendments were accordingly done.

Then recently we had the National Peace and Reconciliation Bill that came before Parliament. The public objected to the Bill very strongly on a number of provisions, about 22 which were ultra vires the Constitution. The Minister in the Office of the Vice President Honourable Mphoko came to the National Assembly to say, “Look, I think it is loud and clear, that this Bill needs a lot of legal cleaning” and sought leave of the House to withdraw that Bill and it was withdrawn.

And I am hoping that the clinical legal reform of that proposed Bill is being undertaken now and the views of the public, I think, will be taken on board. Not only that, I must also mention that the process of public hearings is also buttressed by our Parliamentary Legal Committee, which also helps us to find out whether the proposed Bill complies with the Constitution or not. There have been some good responses from the public and the executive has also responded positively by accepting the proposed amendments.

LG: Almost on a weekly basis, we see various stakeholders marching to petition Parliament. But you have raised concern with some of the petitions in terms of language and the issues that Parliament has authority over and those that it doesn`t have authority over. Would you say stakeholders have understood how they should petition Parliament?

JM: First of all, I want to start by saying that petitioning Parliament is a right of the citizens of Zimbabwe including permanent residents of Zimbabwe. This is provided for in Section 149 (1) of the Constitution. They have a right to petition Parliament in terms of proposing a repeal of an Act, amendment of an Act and proposing the enactment of new Acts that address the concerns of the public.

We have received these petitions, provided of course, they are packaged in a manner that addresses real issues of national concern. In our outreach programme, we have given detailed outlines as to how the petitions should be crafted. I think now I can say there has been some improvements in the quality of petitions and we have promised the public that within 26 days they will know to what extent Parliament has responded.

And we have also given these petitions to relevant portfolio committees to deal with. There has been some petitions that are non-compliant with the Constitution in terms of the doctrine of separation of powers. For example, if a matter is before the courts, Parliament cannot entertain a petition where someone is saying there has been a delay, for example, in the adjudication process.

We cannot as Parliament instruct the Judiciary how it should operate. The least we can do when we get such, is to forward such petition, with our recommendations, to the Judiciary saying this is the complaint that has come through and can you please deal with it. Or sometimes when there have been allegations of corruption and the Executive has appointed a commission to look into those allegations, Parliament will not entertain a petition that comes into Parliament about the same matter. We would rather allow the Executive and the appointed commission to complete its exercise so that we don’t seem to be interfering.

LG: Corruption is one of the issues that dominate public discourse these days. Do you feel we have adequate legal provisions to detect corruption and to bring the culprits to book?

JM: You see the Constitution is very clear. The Constitution advocates good governance. The Constitution abhors corruption even within parties. It’s there in black and white. It`s one thing to have the law in place, it is another thing to implement and enforce the law. Now, there are several elements or institutions of the State that are involved here. You have the police that must investigate and if they don’t investigate adequately and the matter comes to court, because the judge or the bench feels there is inadequate information, it falls out.

There must be evidence that is indisputable for the Judiciary to rule accordingly against the corrupt officials whether it’s in the public or private sector. But in the absence of evidence, white colour crime can be very problematic in terms of dealing with them. But I am happy to say that as Parliament we have been involved in the establishment of the Anti-Corruption Commission where we carried out interviews and came up with 15 names, we forwarded to the President and he appointed the commissioners for the Anti-Corruption Commission.

We are yet to see to what extent they will operate in terms of nipping the cancer of corruption in the bud. But also you must understand that corruption is not a Zimbabwean problem, it’s a human problem, it’s an international problem. It’s a human problem and it has to be fought by all forces in order to bring it under control.

LG: Inasmuch as it is an international problem, people say in other countries, they see action being taken against the culprits. For instance in China, they have taken a strong position in fighting corruption. Why are we not taking a leaf from our friends in China?

JM: Our friends in China have been quite robust in fighting corruption even to the extent of execution. But the problem has not diminished, it’s still there, the people involved in selling of drugs, capital flight and so on, the executions are still going on. But the good thing is that there is some visible action that is taking place.

I think we have heard of late, members in the private sector, State enterprises being brought before the courts and so on. But the process has been slow. There have been technicalities, as I said earlier on, the question of evidence. In the absence of strong evidence it is difficult for the Judiciary to pin anybody down. But one hopes that with the new Anti-Corruption Commission in place and the concerted effort by the Executive, I think we should be able to turn around the corner.

But it will be an ongoing exercise, it’s not something that you can say “yes we have got it now so it has come to an end”. As long as we have human beings there will always be corrupt tendencies and crimes related to corruption emerging from time to time.

LG: The Anti-Corruption Commission is supposed to be independent but people may feel it is still not really independent because they hear of Government officials interfering with operations. There is that fear that it’s not able to independently investigate and independently recommend prosecution on those officials in the public sector.

JM: You should add also in the private sector because corruption doesn’t occur only in the public sector, even in the churches for that matter. I am sure you have read of pastors and ministers of religion stealing money from the congregation and so on and not in any particular church but quite a number of churches. This is common cause. The extent of corruption is pervasive.

You say are they independent? I think they are independent to take care of the concerns of the public in terms of interference by certain public figures. I think it’s a good thing that, His Excellency, the President moved the ZACC to be under the Office of the President. This is what they have done in countries like Rwanda. This is to protect that independence so that public figures in both the public and private sectors are not seen to exert their influence and disturb the operations of the Anti-Corruption Commission. That being the case, why can`t you wait and see how the office will perform in their tenure?

Secondly, don’t forget that the Constitution demands that every commission must report to Parliament about their activities. Parliament will be waiting to see to what extent these reports have been coming.

Other commissions have begun to make their reports, like the Human Rights Commission which has submitted two reports now, 2014 and 2015. Other commissions are yet to give their reports, but as Parliament we shall remind the chairpersons of these commissions and the line ministries through whom they should table their reports in Parliament. That it is a constitutional requirement that they report to Parliament. From those reports, it will be clear as to whether the commissions are performing or not.

LG: Earlier on you spoke about the Auditor-General’s reports and how indicative they are, in terms of poor corporate governance and sometimes outright corruption in the public sector. Sometimes the media pick up those issues. But from then on, there seems to be no action that is taken. Whose role is it to make sure the culprits or those accused are brought to book?

JM: Firstly, it is the role of the responsible minister or ministry or the role of that responsible institution, primarily to take action. As for Parliament, we have produced guidelines on what are known as quarterly reports on the performance of ministries in terms of the Budget. It is sometimes through the procurement systems that corruption shows up its head or funds are given for a particular project and they are not properly managed. Corrupt activities do arise where, I think, it’s now too much. We have publicised by giving the guidelines to the various ministries.

We have also asked the Public Accounts Committee to give deadlines for responses in terms of what corrective action has been taken to address issues of poor corporate governance in State enterprises including local authorities.

In the Fourth Session, with those measures being put in place by Parliament working very closely and collaboratively with the Executive, we should be able to get some results in terms of timelines. So it’s not time wasted what the Auditor-General has done. She has done an excellent piece of work in terms of improving corporate governance and fighting corruption in various institutions. Parliament will go out of its way to support her fully so that those that are found to have flouted certain procedures are brought to book.