In the Wednesday 27th October issue of the News Diggers, the editorial comment raised questions on Transparency International Zambia’s apparent support for the amnesty extended to Faith Musonda under the headline “Money Heist and the Sleepy Law Enforcement.” TI-Z would like to respond in order to provide answers to the key questions raised in the editorial, as part of the continued public discourse on this case.
First and foremost, TI-Z wishes to acknowledge the importance of the debate that has ensued concerning this case. Issues of governance should elicit interest from the public, and the diversity of views that continue to be expressed over the Faith Musonda issue, is healthy for a democratic dispensation such as ours. We believe that is the spirit in which the News Diggers editorial was written, and our response is therefore premised on that same spirit of contributing to what has become a raging debate.
We have noted the public displeasure in the manner in which the case against Faith Musonda has been handled, and while appreciating the veracity of that displeasure, we would like to reaffirm our position that we believe the Anti-Corruption Commission (ACC) acted not just within the law, but also in good faith (pun unintended) and for the greater public good.
Here are our responses to the pertinent questions raised by the News Diggers:
- Did the ACC act within the Law in forfeiting the assets without prosecution?
The Anti-Corruption Act No. 3 of 2012 provides for asset recovery or forfeiture after criminal prosecution as well as asset recovery without criminal prosecution, or what is known as a civil forfeiture. Section 80 (2-3) reads: “The Commission may negotiate and enter a settlement with any person against whom the commission intends to bring, or has actually brought, a civil claim or application in court. The commission may tender an undertaking, in writing, not to institute criminal proceedings against a person who- (a) has given full and true disclosure of all material facts relating to the past corrupt and an illegal activity by that person or other; and (b) has voluntarily paid, deposited or refunded all property that person acquired through corruption or illegal activity.” It is therefore clear that the ACC acted within the Law in offering Faith Musonda amnesty from prosecution following her willingness to refund the moneys and property. There can of course be a debate on the use of this particular provision within the Act, and the wider need to reform anti-corruption legislation, but the stark reality is that it is an option that our laws currently provide for, and law enforcement agencies are therefore well within the remit of their mandate to use it where they deem necessary.
- What is the main rationale for asset recovery without prosecution?
We should stress that from our point of view, the Faith Musonda and Anti-Corruption Commission settlement agreement is not a “deal” to allow criminals to go scot-free. It is aimed at saving the public from a lengthy, expensive and uncertain trial. In Zambia’s current predicament, where high profile corruption cases have collapsed in court with no benefit to the public, offering amnesty is part of a broader strategy to fighting corruption. Nonetheless, the caveat here is that this strategy should not be the first port of call when it comes to dealing with corruption. It must also be time-bound so that those who have plundered public resources and fail to declare themselves (and the correct amounts they plundered) within a specified period of time should be investigated and prosecuted. The amnesty should not be in perpetuity, and each case should in fact be looked at on the basis of its own merits. Our belief is that the assets and resources recovered will potentially benefit the public through reallocation to public services following the forfeiture. We therefore believe that in the absence of certainty about how a particular case will go, and on the premise that law enforcement agencies are able to obtain crucial information about any wider criminal activity, the rationale for asset recovery without prosecution remains relevant.
- Is this amnesty against the “Zero tolerance for corruption” stance?
We would like to clarify that we do not believe that offering amnesty from prosecution is in conflict with a “Zero tolerance for corruption” stance since it provides an opportunity to deprive criminals of ill-gotten wealth and potentially generates evidence for other investigations. Furthermore, and perhaps more crucially, asset recovery mechanisms are globally accepted as an approach to fighting corruption and can be effective in that regard if well implemented. Considering the conditions under which the amnesty is extended, such cases potentially provide evidence for subsequent investigations, as well as insight into criminal activities of close associates of the individual to which the amnesty is extended. We would also like to highlight the give and take nature of such arrangements. The amnesty is offered by law enforcement agencies on the basis of the analysis they would have made about the prosecutorial strength of a particular case, and the value of information that a suspect may have provided in return for that amnesty. For these reasons, we do not believe that going the amnesty route to recover assets goes against the principle of zero tolerance for corruption.
- Should the ACC disclose particulars about the Faith Musonda case?
In the editorial, News Diggers are essentially demanding the release of information on which banks were used to transfer the money, which individuals facilitated the transfer, and who authorized the movement of the funds. TI-Z cannot of course speak on behalf of law enforcement agencies, and they ultimately have to make a judgement about what sort of information to release to the public. We however note that the Diggers editorial also expresses suspicion that the Faith Musonda case is not isolated. For what it’s worth, this is a suspicion that we share, and it is this potential interconnection with other cases that makes us understand why law enforcement agencies may not be too keen to disclose the crucial specifics about the Faith Musonda case. Again, there can and probably should be a healthy public discourse about how much information law enforcement agencies should release about specific cases in order to create public confidence that the cases are being well handled, while at the same time being careful not to jeopardize any connected ongoing or future investigations. It is a delicate balance but we believe one that must be struck.
- Is this amnesty likely to promote corruption?
As already stated, we believe that while provided for by law, the amnesty arrangement should not become the norm as an approach for dealing with individuals suspected to have plundered national resources. There is need to set a clear deadline for the amnesty and to develop mechanisms aimed at verifying the accuracy of the declarations made by those seeking amnesty. If a timeframe is not specified and suspects are able to under-declare the assets gained from corrupt activities, justice will not have been served and more people may be induced to indulge in corruption. Criminal prosecution should be pursued once the amnesty period elapses for those who opt to remain silent. Furthermore, the settlement agreements should provide for criminal prosecutions in the event that it is discovered that an individual abused the amnesty by providing false information.
In concluding, we would like to call upon the UPND government to urgently clarify their broader strategy of asset recovery in order to address the pertinent concerns being raised by the public and other stakeholders. There is need to set a clear deadline for the amnesty extended to individuals who plundered public resources and all the information gathered during the amnesty period should be used to build credible cases against those who decide to remain hidden. Furthermore, government should update the nation on how the recovered assets will be utilized. TI-Z also calls upon the media to follow up on these concerns in order to provide accurate and credible information that will contribute to a wider and more fruitful discourse about the fight against corruption in Zambia.
Maurice K. Nyambe
TI-Z Executive Director
