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Some people might be confused that while former Zinara boss Frank Chitukutuku was acquitted of corruptly awarding a tender for roadworks in three rural district councils, but has been stripped of the property bought with the pay offs and kick-backs for awarding the same corrupt tenders.
This is just a result of the difference between criminal law and civil law. Criminal law demands, since a person’s freedom is at stake, that a conviction required proof beyond reasonable doubt, and there was reasonable doubt in the criminal trial despite the best efforts of the police and other authorities to gather the evidence. But the civil law has a lower standard. Here everything works on the balance of probabilities.
There still has to be a lot of evidence, but here a sudden surge in wealth, or unexplained major purchases, can be damning, especially if there is reasonably good corroborating evidence.
It is not good enough to lock you up, but it is good enough to take away the fruits of your dubious actions.
The biggest single problem in criminal corruption cases is that nothing is done in public, nothing is done before a witness and documentation either does not exist or is doctored. Payments can be attributed to other reasons, especially if everyone involved tells the same story, and here the “beyond reasonable doubt” test comes into play.
But Justice Benjamin Chikowero had no difficulty piecing together what was quite strongly the most likely story during the civil suit brought by the National Prosecuting Authority for the forfeiture of the property they argued was bought with funds arising from corrupt activity.
Basically this likely sequence of events was that Chitukutuku irregularly awarded tenders for rehabilitation of rural council roads to three companies, authorised large payments made to them, even though one had gone to the extreme of doing nothing, and had received a respectable slice of those payments in return.
The prosecuting authority did not have everything their own way. The judge continued working out probabilities and came to the conclusion that some of the assets and property the NPA wanted seized were probably not bought with irregular funds, or least not with such funds from the deals outlined in the application.
So Mr and Mrs Chitukutuku kept something, including their farm, two valuable houses in Sentosa and Highlands, and a percentage of a large vehicle fleet, which included some farm vehicles.
But after doing his sums and taking into account of the probabilities, as he had to in a civil suit, of just how much might have been transferred in kick backs at the time these were probably given, and the probable value of the assets probably bought with that money, he came up with a list.
The couple lose houses in Borrowdale Estates and Glen Lorne, their 40 percent of shareholding of Champions Insurance, and a fleet of vehicles.
We need to remember that the judge was not allowed to punish or impose a fine, since this was not a criminal action.
But what he was expected to do was do the calculations and figure out what was likely to have been received when public funds were dubiously awarded in return for a slice of the profit, and restore that value to the public through seizure of assets.
Erring modestly on the side of the person about to lose a lot might have been needed to ensure that there was not punishment involved, just a return of what should never have been paid out of the public purse to start with. But in that case the stress would be on “modestly”.
This distinction between criminal and civil liability is common around the world.
One of the most famous cases involved O.J. Simpson, a top player of American football, who was acquitted of murdering his wife and her friend in the criminal case, but was ordered to pay damages of US$33,5 million for his unlawful killing of the two in the civil case.
The Chitukutukus lawyer announced after the case that he would be lodging an appeal with the Supreme Court, largely centring on a complex point of law.
Generally the Supreme Court trusts High Court judges who have had to untangle conflicts in factual evidence, especially when this is done in court hearings with both sides able to cross examine witnesses and produce evidence, to do a reasonable job and see no reason to repeat the process. So long as the judge’s conclusions are reasonable they usually stand.
Points of law are a different matter and here is where the Supreme Court comes into its own with definitive interpretations of the law as it now stands. Of course if a loophole is found, Parliament usually acts to brick up that escape route, which will at least stop the next person trying to wriggle through, but the first one to get through wins.
This use of civil processes to claw back the fruits of what seems to be corrupt behaviour, even if has to be described differently, is in itself a major deterrent to those who tempted to abuse their office to become rich.
First there is always the risk that the investigators will be able to accumulate enough evidence to prove what happened beyond reasonable doubt, and so jail becomes almost automatic.
And that is a serious risk as some who have been behind bars, and some now there, have found out. But to do all that and gain nothing, even if you retain your freedom, is not really much of gain when set against the loss of reputation and other social sanctions.
So the dual approach now adopted by the National Prosecuting Authority, a criminal trial and a civil application running almost together seems a robust approach.
If the criminal trial succeeds the fruits of the crime are usually restored through the process instituted by an innovative judge in sentencing in the 1980s, with a significant proportion of the sentence, usually around one third, suspended if you pay back everything promptly.
But those who might be tempted to do all the years in Chikurubi so as on their release they can live the rest of their life in a high level of comfort might still need the civil action to take away the chance of that comfort. So the double is always a good idea.
The Zimbabwe Anti-Corruption Commission has also made clawing back the fruits of corruption a major plank of its programme, as well as going for criminal convictions where possible.
So the civil case is needed for its own sake, and sometimes a second prize if that is all that can be obtained is better than running in last.
While the civil case cannot punish, it can make all the activity totally worthless and can, in many cases, beggar the corrupt person, or at least seriously diminish their wealth with little hope of getting that back.
Online Reporter