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One of the most effective deterrents against corruption is to ensure that perpetrators cannot financially benefit from their criminal activity, and that however difficult it is to penetrate the smokescreens in a criminal trial to provide proof of reasonable doubt, civil proceedings only need a balance of probabilities.
For some time, the Zimbabwe Anti-Corruption Commission and the Prosecutor General have been following both the criminal and civil routes, laying charges where possible and seizing the property probably acquired through corruption.
But all this takes time. Normally a corrupt person can afford good lawyers, since they have the money, and a lot of legal technical points can be raised, with appeals and applications for appeal when a ruling goes against the accused. So a trial, even with the Prosecutor General pushing hard, can be spread out over years.
And as time passes the memories of critical witnesses become vaguer and more and more evidence can become open to multiple interpretations as a result.
Added to this is the well-known problem that some of those likely to be accused suddenly decide that they want a long holiday in a foreign country, and just disappear, possibly forever. This is one reason for the early pouncing on the possible corrupt, so that even if they are granted bail in the early days of investigation, at least their passport is in the safe at the courts.
As time progresses, assets are dissipated and hidden, perhaps by being sold for cash and the money carried over a border in a briefcase, perhaps by being hidden deep in the recesses opened by the civil law to protect the vulnerable, but used by the criminal for self-protection.
Again there are likely to be lengthy legal proceedings, even in a civil case in the High Court, as lawyers raise every conceivable issue, and some that even a judge might not have seen before. Again we have seen appeals, then further applications for appeal to even the Constitutional Court, which can reject the appeal, but only after a three-judge hearing has considered the application for permission to appeal to the full bench, and that brings up yet a further delay.
Now the authorities are adding an extra legal approach to their developing attack on the suspected corrupt. We are seeing applications for freezing the assets owned or controlled or possibly controlled through a hiding process by the accused. This does not take over the assets, but ensures that the property, much of the money and anything else of major value is still there when the whole set of legal processes finally ends.
During the freeze the accused person retains the assets but cannot sell them off or otherwise dispose of them. If at the end of the whole process the accused or suspected person wins out, the assets are unfrozen and returned to the total control of the owner. If however the courts grant orders for the seizure, then they are still there to be seized. Either way the delays generated do not matter.
Corruption is a particularly difficult crime to get hard evidence for a criminal conviction.
Nobody stands in front of witnesses or a camera to give or receive a bribe, and in some cases there are middlemen who do the dirty work, and are more experienced in hiding money or laundering the cash. So few investigations are instant.
Even in the civil asset seizure cases where there is no prior criminal conviction, a lot of evidence has to be assembled to show a judge that it is probable that the property in question was acquired with dirty money. And even here judges have to go through the evidence in detail.
We have had cases where a judge agrees that despite the problem of proving a criminal charge beyond reasonable doubt, the lower civil test of probability has been met, but then calculates that not all the assets on the application were shown to be probably bought with dirty money, or the sums being talked about could not have bought everything, and splits the assets, handing over some to the State and letting the presumed corrupt person have some back.
The civil tests still have to be met with the initial application for a freezing of assets, but here because there is no permanent forfeiture there just has to be a reasonably detailed and properly done initial investigation showing there is a reasonable probability that the final civil suit will be in favour of the authorities.
Judges want some grounds before issuing the freeze order, and this provides protection for those caught up by mistake in a corruption investigation. Freeze orders, like the final seizure orders or the final conviction in a criminal trial are not arbitrary.
But this determination to follow both criminal and civil routes is important. We can have cases where a person is acquitted of criminal charges but still loses the assets because of the different standards of proof. Equally important the double route ensures that even if someone escapes justice by fleeing the country, they and their family lose the looted money.
The latest High Court order over freezing dubious assets actually showed that the family of the suspect was not going to benefit, let alone the suspect. Money was locked up for advance school fees and the house was hidden away in a family trust, but in both cases the judge thought that the original money could probably have been the result of corruption. So the family loses out twice, the missing breadwinner and the frozen and perhaps forfeited assets. And those tempted by corruption must consider this in advance, before they move into the darkness.
In the end, corruption will be ended when either every corrupt person will be in a Zimbabwean prison with their corruptly obtained wealth forfeited, or they will be living in some difficulties, and often as illegal or semi-legal immigrants, in a foreign country with only the money they managed to grab as they raced for the airport or the border. Either way they are finished and the corruption has cost them and their families more than it gained.
Online Reporter