BY ZWELETHU DLAMINI
Parliament estimates that eSwatini loses about E90million a month totalling E1.08 billion a year to corruption. One of the reasons that the country is losing its battle against corruption is that the two anti-corruption agencies that were set up 15 years ago to fight the scourge are semi-dormant. While government has done nothing to give these agencies the right teeth and powers, legislators blame the ministry of justice and the ministry says it’s still investigating the problem.
The problem is quite simple. The Anti-Corruption Commission (ACC), which was set up in 2008, is founded on legislation that is unconstitutional because, as Chief Justice Bheki Maphalala found, it has sections that undermine and contravene the human rights provisions in the country’s constitution. The other challenge the ACC faces is that is it not recognised by the constitution. This means that the cases that the ACC investigates are easily challenged. They get stuck in the court system because of this and, as a result, the success rate of prosecuting corruption is dismal.
The other agency, the Commission on Human Rights and Public Administration (CHRPA), which was set up in 2009 and is empowered by the constitution to investigate corruption can’t do this because parliament has not passed the required legislation that would allow it to investigate corruption. It is currently limited to investigate human rights abuse and can only recommend solutions for these cases. It has not started investigating any corruption.
The two institutions cost tax payers about E30 million a year.
In his assessment of the legislation on which the ACC is founded, Justice Bheki Maphalala found that it contravenes the basic constitutional requirement for any accused to be heard and to be given the right to reply to evidence presented against them. It also contravenes constitutional principles that govern search and seizure and the arrest of suspects.
“The powers of the Commission in this regard are far-reaching and have a devastating effect on the dignity of the person being investigated. The right of the individual against arbitrary search or entry into the premises is undermined,” Judge Maphalala observed.
As the country’s two corruption-busting agencies remain paralysed and unable to function as they should, King Mswati III consistently calls for a concerted fight against corruption.
The corruption perception index (CPI) by Transparency International indicates that eSwatini’s public sector in 2022 was rated among the worst in the world as it ranked 130 out of 180. This is worse than 2021 where it scored 32 per cent placing it on 122/180 countries. The country score in the CPI has been on a downward trend for the past five years from 39 out of 100 in 2017 to 30 out of 100 in 2022.
Transparency International urged countries with low scores, including eSwatini, to strengthen institutions that maintain checks and balances over political power; enforce anti-corruption legislation; and support civil society, and a free independent media.
The ineffectiveness of the ACC and CHRPA can be blamed on a lack of political will to give them proper powers and to ensure that they function within the parameters of the country’s constitution. But they are also severely limited by budget. In the 2023/24 budget estimates, the ACC is allocated E25 million while the CHRPA receives E6.3million of which E2 million is for wages and the rest goes to investigation of human rights violations.
The CHRPA’s Deputy Commissioner, Dudu Nhlengetfwa, told Inhlase that, aside from the legal issues that hamper the organisation, the annual budget is far from sufficient.
“Currently, there are eight staff members which is a far cry from an ideal staff complement. The budget has not increased despite having a secretariat in place and its broad mandate requires a lot of resources,” states the Commission in the 2022 annual report published in February 2023.
While questions remain as to whether these budgets will ever be increased to allow the organisations to do their work, there is still a lot to be done to get the two organisations functioning and fighting corruption legally and effectively.
Nhlengetfwa envisaged that the enabling legislation would strengthen the fight against corruption and prevention.
Meanwhile, the justice ministry has benchmarked the Human Rights and Public Administration Bill 2020 which seeks to enable the CHRPA to fulfil its mandate. Once passed to law, it will help determine whether the ACC becomes a CHRPA wing or be transformed to a new body.
Currently, the CHPRA recommendations and decisions are not enforceable till the enabling legislation is in place. Furthermore, this bill seeks to lay down procedures for complaint lodging and investigating. It also seeks to outline the commission’s functions and powers.
“We must acknowledge the existence of corruption as a country, the extent and its impact on the social and economic lives of the people. Then adopt a concerted and collaborative approach to the fight corruption,” Nhlenethwa said.
ACC Commissioner, Daniel Dlamini also explained the myriad of challenges from his point of view.
“The existing constitutional overlap between the laws establishing the ACC and CHRPA is a big challenge, hence the harmonisation exercise by the justice ministry,” he pointed out.
In its 2022 Annual Report, the ministry of justice states that it has benchmarked the Harmonisation of Legal Mandates of CHRPA and ACC. It has approached the Ghanaian Commission on Human Rights and Administrative Justice and Kenyan National Commission on Human Rights to learn the best practices.
“The development partners have supported the Ministry to engage an expert from the Ghanaian Commission to share the Ghanaian experience. The focus is on how it operates with three mandates – corruption, human rights, public administration – housed in one institution. It is also to learn about its functions and powers; the operational challenges and opportunities; operational structure or organogram; advantages and disadvantages of having the type of institution amongst other issues.”
The ACC is tasked with investigating money-laundering and financing of terrorism and enforcing the Money-Laundering and Financing of Terrorism Prevention Act of 2011. The Anti-Money Laundering, Transnational and Organized Crime Unit within the Director of Public Prosecutions (DPP)’ office states that fraud is one of the dominant offences for money-laundering in our jurisdiction.
“There are money-laundering cases being investigated illustrated by police consultations on money-laundering. However, there is no parallel financial investigation when an investigation of the predicate offence is done. Thus, the low numbers of money-laundering cases and no cases of terrorism financing that are before courts,” states the unit.
The ACC Unit works closely with the ACC and the Royal Eswatini Police Service. It offers legal advice, guidance and training to ACC and police investigators. It is responsible for prosecuting all corruption-related crimes.
Its 2022 annual report found that the most prevalent corruption cases involve diverting public funds, disregarding government procurement processes and abuse of public office for personal gain. It had not received any new cases from the ACC during the period under review and only had six pending matters on its desk.
The ACC Commissioner pointed out that the main hindrance to their investigation is that individuals either refuse to cooperate or challenge the ACC legal standing to investigate them.
Dlamini also stated that the ACC has a challenge of accessing the courts as some of its cases had not made it to court and some of those that made it are awaiting trial. But the trials are taking too long to come.
“Finance minister while in Parliament once enquired from the Justice Minister if the harmonization exercise will ever bring magic for accessing the courts. That remains a challenge too,” he recalled.
The Commissioner stated that when they made follow-ups, they are told about backlog of cases in the system due to shortage of courts and judicial officers.
As of January 2023, the ACC reported 242 corruption cases under investigation. According to the Justice Ministry 2022 annual report, there were 233 cases of corruption brought forward from 2021 and 25 received in 2022 of which 11 had been converted to investigations. Six cases were referred to other agencies while two of them were referred to the director of public prosecutions and two were declined.
Asked about why so few cases make it to court each year, Dlamini blamed inadequate human resources. The ACC has 16 investigators. Ideally, each investigator should not be working on more than 10 cases at a time.
“Financial investigators by their nature require a lot of deeper digging and we have inadequate human resources,” said Dlamini who also lamented the slow pace in the court system.
“The DPP has time and again been writing to the Registrar of the High Court asking her to set dates for the old corruption cases without success. Trial for some of the old cases has not happened,” Dlamini said who emphasised that this made him question the will to fight corruption