Local lawyers have dismissed as false a recent claim by Vice President Phelekezela Mphoko that cabinet ministers could only be arrested with the blessings of the president.
Mphoko, who has courted citizens’ ire for overstaying in a Harare hotel and directly ordering the police to release executives arrested for fraud, made the remark in defence of Jonathan Moyo, the Higher and Tertiary Education minister wanted for fraud involving some $430,000.
The Zimbabwe Anti-Corruption Commission (ZACC) last Wednesday enlisted the help of the police in trying to arrest Moyo but President Robert Mugabe ordered them away.
Moyo and Mphoko are linked to a Zanu PF faction, Generation 40 (G40), which is accusing Vice President Emmerson Mnangagwa of being behind the minister’s attempted arrest.
Moyo, who has admitted to the alleged fraud but defended it saying he was doing it as a philanthropist, is being accused of conniving with top ministry officials and his assistant to defraud the Zimbabwe Manpower Development Fund (Zimdef) which falls under his portfolio.
Part of the swindled money was allegedly used to buy bicycles for members of his Tsholotsho constituency while some of it, he admitted, went to fund Zanu PF rallies.
Paul Mangwana, the Zanu PF deputy legal affairs secretary and former cabinet minister, said the constitution did not force the police or other law enforcers to first seek presidential permission when arresting ministers.
“The minister has no immunity because he is a citizen just like everybody else. There is no legal provision that ministers are immune to prosecution while they are in office. Reporting to the president about a minister’s impending arrest is just a political courtesy.
“The only person who enjoys immunity is the president. No one else enjoys that, even ministers while they are in office.People should not try to hide behind a finger by claiming that the (Zimbabwe) Anti-Corruption Commission has no mandate to investigate alleged corruption of ministers.
“ In fact, they are allowed by the constitution to investigate and report to the police who then use their discretion to determine whether indeed there is a prima facie case or not. If a minister commits a crime, ZACC has a constitutional right to investigate them,” said Mangwana who was instrumental in setting up the first ZACC.
Alex Magaisa, a law teacher at the University of Kent in the UK, insisted that ZACC must do its work without interference.
“The constitution does not give the president any powers over the functions of the Zimbabwe Anti-Corruption Commission apart from his role in the appointment process,” said Magaisa.
“The ZACC is an independent commission and does not operate under the direction of any other person, not even the president. The constitution provides that all persons are equal under the law. There is no provision that says ministers are subject to different rules from other citizens.
“If anything, as public officers in charge of public funds, ministers are expected to demonstrate higher levels of probity and accountability. The fact that ministers have been allowed to behave like little gods over the years does not mean the law protects them from arrest,” said Magaisa.
However, in order to ensure national stability, law enforcement agents could consult the president when they intend to arrest a minister, according to another lawyer, Tendai Toto.
“To me, it will be hazardous and disruptive to governmental functions to allow the free reign by police to arrest ministers upon receiving pieces of evidence suggesting reasonable suspicion of the commission of an offence. Police powers can be abused to settle political scores among other sinister objectives.
“The said policy must also not be abused and selectively applied. It must be applied in a transparent and accountable manner in tandem with the national objectives provided in the Chapter Two of the Constitution of Zimbabwe.
“The consultations will inform the police to arrest in accordance with any existing policy directives prescribed in terms of Section 221(4) of the Constitution. This is not to say that ministers are immune to criminal sanctions in accordance with the law. My view is that the Acting President made a pronouncement of Governmental policy that binds the executive functionaries including the law enforcement agents,” said Toto.
Some full and deputy ministers have been arrested over the years.
These include Christopher Kuruneri, the former Finance minister in Mugabe’s government who more than a decade was arrested for possessing a Canadian passport at a time Zimbabwe had banned dual citizenship.
Elton Mangoma, the former Energy minister under the 2009-2013 coalition government was also arrested on more than one occasion.