Corruption and mandatory sentencing in Zimbabwe

RUTENDO MANHIMANZI

The term corruption refers to a broad spectrum of unethical or illegal practices, including bribery, embezzlement, favoritism, fraud, and manipulation of public resources for private gain, , permeating both the public and private sectors which ultimately impacts the quality of life for Zimbabweans.

Whilst there are laws that criminalize various corrupt practices, Zimbabwe currently does not have specific mandatory minimum sentences for corruption offenses. Sentencing is generally at the discretion of the judiciary. However, the involvement of a public official in a corruption offense is typically treated as an aggravating circumstance, which can lead to a harsher sentence.

Maximum penalties for corruption offenses can include up to 20 years imprisonment and substantial fines. There are also provisions for the forfeiture of profits from corruption.

Recent Developments in Sentencing

In August 2023, the Criminal Procedure (Sentencing Guidelines) Regulations were published.

These regulations introduce “presumptive penalties” for a range of common offenses, aiming to bring more consistency to sentencing. While these are guidelines and allow for judicial discretion in “special circumstances,” they represent a move towards more standardized sentencing.

It is important to note that these guidelines are not “mandatory minimums” in the strict sense, as judges can depart from them with good reason.

The governing legal framework for corruption in Zimbabwe consists of the following:

• The Prevention of Corruption Act [Chapter 9:16]
• The Anti-Corruption Commission Act [Chapter 9:22]
• The Criminal Law (Codification and Reform) Act [Chapter 9:23]
•  Money Laundering and Proceeds of Crime Act [chapter 9:24]
• Bank Use Promotion and Suppression of Money Laundering Act

All of the above legal statutes are applied and read with the following international instruments to which Zimbabwe is a party to:

• The UN Convention against Corruption (2004) Zimbabwe signed it on 20 February 2004 and ratified it on 8 March 2007.
• The African Union Convention on Preventing and Combating Corruption (2003)
• The SADC Protocol Against Corruption (2001)

 

What are the implications of mandatory sentencing on judicial discretion in corruption cases, and how can judges balance punishment with rehabilitation?

Mandatory sentencing laws can restrict judges’ ability to tailor sentences to specific cases, potentially leading to unjust outcomes.

It limits the ability of the judge to consider an individual’s circumstances such as background, remorse or level of involvement.

Mandatory sentences can result in harsh penalties for some defendants, while others may receive lenient sentences, undermining the principle of justice, fairness and rehabilitative sentences and may not effectively address the root causes of corruption. Moreso, mandatory sentencing for petty bribes and embezzlement may undermine proportional justice. Mandatory sentencing in some instances can be a response to public pressure and an outcry for justice and accountability resulting in unjust or inequitable punishment.

Balancing punishment and rehabilitation

• Judges can still exercise discretion in the interpretation of facts on a case by case basis with guidance of the legal provisions and sentence within the prescribed ranges- minimum and maximum sentences.
• Judges can explore alternative sentencing options, such as fines, community service, or restitution, that balance punishment with rehabilitation and restorative justice.
• Judges can use their discretion to impose sentences that take into account the specific circumstances of the case, while still adhering to the principles of justice and fairness.

How effective are these measures in preventing and prosecuting corruption, and what improvements can be made to enhance their impact?

Zimbabwe has clear laws criminalizing corruption institutions like ZACC have investigative powers and promote anti-corruption awareness.

The establishment of anti-corruption courts helps in fast tracking these cases and develop judicial expertise in these matters. Despite having laws and institutions in place, corruption remains widespread due to lack of transparency, accountability, and effective enforcement.

This is usually as a result of, in some instances, political interference in investigations, selective justice and lack of convictions and fear by whistleblowers of likely attacks and threats due to lack of protection.

What Can Be Done?

• Strengthen and depoliticize institutions by enhancing the capacity of ZACC and other anti-corruption agencies through training, resources, and ensuring independence can improve their effectiveness.
• Promote transparency in public spending by implementing measures to increase transparency in government and public institutions can help prevent corruption.
• Develop clear and specific guidelines that provide judges with a framework for sentencing, while allowing for discretion in individual cases. Developing guidelines based on evidence and research, including data on trends of corruption and sentencing practices.

 

• Classification of offences such as severity, position of offender, amounts involved and harm to public interest.
• Increasing civic education and media freedom through encouraging public participation in anti-corruption efforts through awareness campaigns and whistleblower protection can help identify and report corruption.
• Enforce laws fairly and consistently by ensuring swift and fair prosecution of corruption cases which can serve as a deterrent measure to would be offenders.
• Reviewing Legislation continuously and updating anti-corruption laws to address loopholes and ensure they keep pace with evolving forms of corruption is crucial.
• Stakeholder engagement including judges, prosecutors, lawyers, and civil society organizations is paramount, to ensure that guidelines are fair, effective, and practical.

 

What are the most effective strategies for preventing and addressing corruption in the public sector, and how can public officials be held accountable?

Preventing and addressing corruption in the public sector requires a multi-faceted approach that involves various strategies. Conducting thorough investigations and prosecutions of corruption cases ensures that those found guilty are held accountable.

Merit based recruitment and promotion helps to reduce political patronage and nepotism. There must be consistent and regular audits and financial disclosures for ministries and departments. Further, digitization of public service where possible and minimize face to face interactions in order to curb bribery. Implementation of  asset recovery mechanisms to retrieve stolen assets and funds is also critical.

Transparency is a fundamental principle which can allow for the implementation of  transparent systems and processes, such as open data initiatives, to reduce opportunities for corruption.

Whistleblower protection is critical as these informants  who report corruption are often in danger and targeted hence their protection ensures that they are not retaliated against.

Public entities must develop and enforce a code of ethics for public officials, outlining expected behavior and consequences for misconduct.

Training and education on corruption prevention, ethics, and accountability for public officials is crucial. The public must be encouraged to actively participate in anti-corruption efforts, through citizen engagement platforms and social audits.

Foster collaboration between government agencies, civil society organizations, and international partners to share best practices and resources.

 

What message do custodial sentences send to would-be offenders, and how can they be used effectively to deter corruption?

Custodial sentences often signal seriousness of the offence and conveys that corruption is not a minor technical offence but a grave offence and society values integrity over power and wealth.

It further works as a deterrent on would be offenders and prompts then to disengage in wrongdoing but instead protect their jobs and integrity. It also reinforces accountability proving that no one is above the law and thereby restore public confidence.

Lastly, it can result in breaking the cycle of corruption and ultimately create opportunity for reform and integrity.

What role should rehabilitation and reintegration play in the sentencing of corrupt individuals, and how can these approaches support broader anti-corruption efforts?

It is important to address underlying issues that push individuals to corruption.

Rehabilitation programs can address underlying issues, such as greed, lack of integrity, or poor decision-making, that contributed to corrupt behavior.

Rehabilitation can help  focus on developing work skills, such as ethics, integrity, and accountability, to prevent future corrupt activities.

Personal growth can be birthed from rehabilitation through, encouraging individuals to take responsibility for their actions and develop a sense of remorse, make restitution where possible and repair harm done to the society or community.

Ultimately the  goal is to deter, recover and restore confidence and eventually break the cycle of corruption.

 

How can judicial discretion be exercised effectively in corruption cases to ensure fair and consistent sentencing outcomes?

Judicial discretion is significant to achieve consistent and fair sentencing in corruption cases.

Judges should consider the unique circumstances of each case, including the severity of the corruption, the defendant’s role, and their level of culpability.

Judges can also make use of sentencing guidelines as a framework to ensure consistency and fairness in sentencing, while also allowing for discretion in individual cases. Judges should further ensure that sentences are proportionate to the offense committed. Aggravating and mitigating factors should be considered in the sentencing process.

These aggravating factors include position of authority/ trust, premeditation and impact of corruption on society, whilst mitigating factors, includes the defendant’s cooperation or remorse, restitution/compensation and first time offenders.

 

Conclusion

Ultimately, fighting corruption is about protecting human rights, promoting economic development, and building trust in institutions.

It’s a complex issue, but by working together and implementing strategies like transparency, accountability, and education, we can make a real difference.

Corruption discourages investment, raises the cost of doing business, and leads to inefficient public spending. When a country fights corruption, it creates a more stable and attractive environment for both local and foreign investors.

Rutendo Manhimanzi is a registered Legal Practitioner, and she practices in Avondale, Harare under the Law Firm Ruzvidzo Legal Counsel. She can be reached on +263 773 589 263 or email rmanhimanzi@yahoo.com