There is nothing wrong with accepting a gift from someone after the event who wishes to say thanks. Such behaviour is being outlawed by this act. Section 48-50: Such offences widen the scope of corruption offences to a point where in it becomes otiose. The reality of the situation is that the Commission is not in a position to deal with all these offences of corruption unless the capacity is induced. Section 51: Again the question of gifts is being determined to be criminal where a public officer accepts them. Again there is an anomaly in the punishment. Fifty million fine or one year whilst other offences create a fine of thirty million or three years imprisonment. This section creates double punishment which is forbidden by law.

In addition to the fine, the law requires that twice the amount or value of the gift shall be paid back to government. This puts a defendant in double jeopardy of being punished twice.

Section 52: This would lead to persons being unfairly targeted. The Commissioner is empowered to serve a notice on a person he suspects to have property illicitly whether such suspicion is reasonable or not. Where a person is served with such a notice however unreasonable, he is forced to comply or failure to comply will incur a fine of thirty million or three years imprisonment.

A person is forced to comply for a period of six months with demands that are hitherto unreasonable.

PART 5: The Commission is giving tremendous powers without any laid down procedure to challenge an abuse of power in the courts. The section states that the Commission shall have the powers of a High Court Judge. The power of a judge can be challenged in the higher courts but how can the excessive use of powers by the Commission be challenged? Section 53{1} {c} requires modifications to the High Court Rules but do not state in which respect the modifications are to be made. The most dangerous provision which endangers national security is Section 53{8} which arguably makes the Commissioner more powerful than the president. It provides that regardless of any oath of secrecy, a person who is required by the Commissioner to disclose information must do so regardless of whether the person is under any oath of secrecy or not. It must be realized that the president has executive powers which cannot be undermine by any law or person. The president himself is not above law and cannot compel any person to act contrary to law.

Now this new bill is making provisions for a person who has taken an oath of secrecy under the law to disregard that oath {for which he may be prosecuted} simply to satisfy the Anti-Corruption Commissioner. This does not appear to be democratic or accord with democratic values and arguably breaches national security. A public officer may well be unfairly discriminated against, as he is liable to prosecution regardless of whether he complies with the Commissioner’s demands or not.

Again section 54 encourages a person to act in breach of a secret trust by revealing details of the trust in order to comply with the Commissioner’s demands. Such conduct can hardly be said to be lawful. Similarly in section60 of the Bill, the Commissioner has the power to subject a third party to inconvenience by ordering that person not to dispose of any property including money held in a bank account when a notice is issued. Again there is no mechanism to challenge an erroneous notice by the Commissioner or an unreasonable notice.

Clearly in section 63 the bill makes provisions for the surrender of passports and quite rightly makes provisions in section 64 for an application to be made to court to challenge such an order. Further provision is made in section 65 to deal with an application for a return of travel documents. In relation to section 71 the bill does not make an exception to legally privilege documents between solicitor and client when searches are made. Legally privilege document are always exempted from seizure but this new bill appears to override that.

Likewise even more dangerous is the provision under section 81 that the identity of an informer shall not be disclosed in any court. This seems to be leading to a risk of a large number of unsafe convictions. Further the Commission is empowered to prosecute any one who fails to render assistance to the Commission when required to do so unless reasonable circumstances can be shown. Again the issue of reasonableness is for whom to decide? It is again not stated. Another dangerous provision open to abuse is section 87 which makes provision for one sided applications to court to attach orders for payments of monies of persons who have not been convicted in any court.

This is breathtaking that the Commissioner who is said to be a human rights lawyer could enact such law. Enforcement powers are then being granted to the Commission to enforce orders against persons who are yet to be convicted of any offence. This is clearly in breach of section 21 of the 1991 constitution which protects citizens from deprivation of property. Section 88 is in similar line to section87 that a person can be convicted without due process of law.

This part gives the Commission powers to prosecute which we are of the view that it is not needed and such powers ought not to be given to the Commission. Section 64 of the Constitution makes provision for the Attorney General to be the principal legal adviser for government. The Director of Public prosecution is the person responsible by section66 of the 1991 constitution for all prosecutions in the interest of the state. These powers are set out in section 66{4} of the 1991 constitution. These powers are effectively to take over and continue or discontinue any criminal proceedings. Should the Commission be given powers to prosecute independently of the Attorney General’s office, which provision of law as advocated for in section89 of the Bill would be in conflict with the Director of Public Prosecution’s powers.

In any event they would have the power to discontinue any prosecutions brought by the Commission which would result in wasted resources. It is inherently better for the Attorney General’s officer to be involved in prosecution and it is their constitutional role as custodians of the public law. In addition to the legal issues surrounding power being given to the Commission to prosecute independently, one has to look at why they want to be able to prosecute so badly.

The Commission has been in existence for a period of eight years and to get a flavour of its achievements, one needs to have a good read of two specific documents. The Anti-Corruption Commission Annual Report 2007 and the strategic plan 2008-2010, BOTH of which makes for a depressing reading.