By Lloyd Msipa
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Last updated: 12/01/2008 21:41:05 THE hype in Zimbabwe today is that a high profile so and so has been arrested for corruption, a high profile so and so has been bailed to appear on such and such a day.
After that and a few court appearances down the road we hear the matter has been withdrawn before plea and the state will proceed by way of summons should new evidence come to light.
However, when a nobody is arrested within a short space of time we are told he has been convicted and he is ready to do time, that is, if he does not take off before he is sent of to the gallows.
This is the symptom in our nation today. Power politics is at play in all facets of our lives including the judiciary. Politicians have destroyed the dichotomy between law and politics. Judges, Magistrates and Prosecutors are reminded constantly to tread carefully as the law, as they know it, manifesting itself in statutes or statutory instruments, is a product of a political process called legislation.
In other words, they are reminded that it is the politicians that actually engage in the law making process to which they have the privilege of adjudicating over. The decisions they arrive at in the legal process of litigation takes place in the courts staffed by Magistrates, Judges who are ultimately appointed by politicians. Their removal from office is decided by the same politicians. The judges are reminded of this in a virtually uncomplicated process, never mind the security of tenure rules. The whole process is entirely executive driven. This is what happens when the judiciary becomes politicised. Never mind the principle of separation of powers.
Recent events in the judicial system in Zimbabwe have made a complete mockery of our legal system. These events have shown that that Prosecutors and Magistrates do not act in a political or social vacuum. The more prominent and powerful the figures being investigated the stronger the constraints. Prosecutors and Magistrates dealing with high profile cases have had to be prepared to undergo sometimes very intense institutional psychological pressures.
The fundamental principle of equality before the law is of no use in helping the Magistrates, Prosecutors and the Police when the suspects are wealthy businessmen or prominent politicians. The conviction rate against high profile government politicians and corporate executives has been very low in our courts. This is the case despite the excellent anti-corruption legislation in place. In addition, when investigating high profile cases, the police often have had to contend with interference from other government departments and high-powered individuals, not to mention their superiors whom they are obliged to obey as they are close to the political power structures and therefore influence the outcome of any prosecution.
We need to instil confidence in our legal system in order to attain a higher level of success in the prosecution of high profile corrupt officials and individuals in position of authority. Barring convicted corrupt officials from entering political positions may be a start. The system in place today whereby a politician has to wait a few months or years and then re-enter politics makes a complete mockery of our legal system. There are numerous examples in this category. The independence of the law enforcement agencies may also be an important premise to start.
Another possibility is to focus on the financial angles in corruption cases, especially being able to confiscate ill-gotten money, property and other assets. The fact that a corrupt official is more afraid of losing his ill-gotten wealth than go to prison can be used to the advantage of the prosecution.
It is also vital to introduce legislation along the lines of the aborted leadership code, only stricter. Legislation that will allow authorities to legally seize ill-gotten assets without being obliged to prove if these where gained through crime, if the defendant is unable to explain the origin of the assets.
To win this battle it is imperative for Prosecutors and Magistrates to work in teams and share vital information that is not widely known. This is vital in light of the personal risk they face in high profile cases. Judges, Magistrates and Prosecutors must be exemplary in their professional conduct. Things like asking for favours and committing minor legal infringements cause public exposure. The lack of success in prosecuting and securing convictions in high profile cases is to a large extent due to the influence on these individuals and the institutions they represent by politicians in what has come to be known as the politicisation of the judiciary.
Lloyd Msipa is a Lawyer and writes from London in the United Kingdom. He can be contacted at firstname.lastname@example.org