How Zim’s political elites are looting the state

Obituaries
This is a long story, which begins with potholes as sites for rent-seeking and ends with the stark reality of a shadow state that has developed in Zimbabwe, manned by political elites.

This is a long story, which begins with potholes as sites for rent-seeking and ends with the stark reality of a shadow state that has developed in Zimbabwe, manned by political elites.

SUNDAY OPINION BY ALEX T MAGAISA

It is an article which sets out the problem, the law and the options which citizens have to help enforce the law against corruption.

When you drive along the potholed streets of Harare, as you leave the crowded central business district towards the affluent northern suburbs, there is a good chance you will encounter a group of young men, probably three or four, at a make-shift “work-site”.

There, they will be holding rudimentary implements, making themselves look busy. There might be a card-board  sign a few metres before you reach their “work-site” upon which the words “slow down” were inscribed by someone in a hurry and without care for the arrangement, size or consistency of the letters.

The improvised sign will be wedged between two small rocks or broken bricks, probably with an accompanying broken branch or red-flag for added visibility. There will be one chap in the middle of the road, appearing to be hard at work filling up a pothole with broken pieces of bricks and sand.

There will be a mound of broken bricks, rocks and soil by the side of the road, more evidence to passing motorists that there is serious work in progress.

As you slow down — in part, obeying the warning, and partly trying to negotiate your way around the obstacle — seeing an opportunity, another chap approaches the car, looking pitiful and pleading for a “donation” in appreciation of their noble initiative to fix the road. They present themselves as benevolent volunteers who are working for the public good.

To the unfamiliar eye, this is a moving gesture of good citizenship and one is compelled to search the pocket or dashboard in order to leave a small donation — a return gesture of appreciation.

How can you not donate when you see otherwise unemployed young men doing something useful for the community, especially where the formal authorities have long since abandoned their mandate as evidenced by the epidemic of potholes on the streets?

But the more familiar eye has become wiser to these acts. They will simply smile, wave and pass by.

They have seen it all before. They paid too until they caught up with the trick. The boys might smile too, ruing a lost opportunity, but hoping there will be a catch soon enough. It’s like modern-day fishing, only this time, it’s on the roads.

You lay the trap and hope the fish will come. Sometimes they do, but sometimes, they don’t. The young men occupy the usual point of the road for a period, then move to another. They claim to be volunteers fixing roads in the absence of the formal authorities. However, what appears to be a noble service is, in fact, an income-generating venture.

What the young men are doing is classic rent-seeking behaviour: the “donations” they receive from appreciative motorists are the rents they earn.

The “worksite” they have set up is no more than a place of work from which they extract rents from motorists. To sustain the rent-seeking initiative, they might even empty the potholes overnight and start refilling them the next day. The cycle continues, generating daily rental under the guise of fixing potholes.

In fact, looking at the bigger picture, the young men are a taxing authority, levying charges on motorists. They have no legal authority to charge those rents, but that does not deter them. The authorities might stop them occasionally, but there is little appetite and few resources to follow them around. This seemingly minor scenario is a microcosm of the rent-seeking behaviour and corruption within the state and society at large in Zimbabwe.

It demonstrates how some people have created a shadow state alongside the formal system where they create their own rent-seeking opportunities. There, they extract rents which accumulate as they build their own parallel economy.

We shall see in this article real examples of classic rent-seeking behaviour on a bigger and grander scale than the small, informal “states” run by desperate young men on the suburban streets of Harare. The participants in this parallel state are the political elites, who include government ministers and senior public officials. Their rent-seeking behaviour and its debilitating effects is the subject of today’s article.

Chogugudza was a public prosecutor practising his trade at Rotten Row Magistrates Court in Harare. On August 18 1992, two Zambian nationals, Emmanuel Malunga and Patrick Kanyemba, appeared before a magistrate. They were accused of car theft. They had been apprehended a few weeks earlier and were remanded in custody.

On this court appearance, Chogugudza was their prosecutor. When the two suspects applied for bail through their lawyer, Chogugudza strenuously opposed it. Even an offer of title deeds as security by a relative of the suspects was rejected by Chogugudza. The magistrate delivered judgement two days later, agreeing with Chogugudza and refused to give bail to the suspects.

So they remained in custody. But surprisingly, their fortunes were soon to change.

On September 3 1992, the two suspects appeared again for yet another routine remand hearing. On this occasion, acting unilaterally and without consulting any of his superiors as the rules required, and without any application from the suspects, Chogugudza told the court that he was consenting to bail for the suspects. This was a swift and surprising turnaround given Chogugudza’s strong opposition to bail barely a fortnight before.

Unbeknown to Chogugudza, the suspects’ lawyer, who had been instructed to prepare an appeal against the earlier decision, was ploughing on. When Chogugudza had a surprising change of mind and consented to bail on September 3, he did not inform the suspects’ lawyer, who remained unaware that his clients had since been granted bail. Chogugudza’s explanation of what had happened was unsatisfactory.

Soon after this, Chogugudza left the state’s employment and joined a law firm in private practice. On November 2 1992, Chogugudza appeared again in court, but this time as the defence lawyer for the two suspects. They were now out of custody, thanks to Chogugudza’s consent to bail two months earlier when he was still a public prosecutor.  

This time, he was applying for a relaxation of the terms of bail which the suspects had been granted. The suspects were also remanded to January 4 1993. However, when that day arrived, they did not appear in court.

They had absconded. Kanyemba fled successfully, but Malunga’s luck ran out at Victoria Falls, where he was apprehended while trying to smuggle yet another stolen car into Zambia.

Afterwards, Chogugudza was arrested and charged with contravening the Prevention of Corruption Act [Chapter 9:16] in that he had acted contrary to his duty as a public officer for the purpose of showing favour to the two suspects. He was sentenced to 15 months’ imprisonment, of which eight months were suspended on certain conditions. His appeal reached the Supreme Court, where it was rejected.

In its judgement, the court found there was a strong probability that Chogugudza must have been induced by a gift or other consideration to act as he did.

Chogugudza went on the serve his sentence for corruption, joining a line of other offenders who had been previously convicted of the same offence. As the court stated, Chogugudza had unlawfully exploited his office for personal gain. As a public officer, he had shown favour to the suspects and had failed to explain why he had not done so unless it was for personal gain. He had switched his roles from being the prosecutor in the suspects’ case to being their defence lawyer in the same case, all within a short space of time. Chogugudza was corrupt and he paid his debt to the state. [email protected]

Dr Alex Magaisa is based at Kent Law School, The University of Kent in the United Kingdom. He’s a former advisor to Morgan Tsvangirai, when he was Prime Minister and also advised Copac during the constitution-writing process. This article was first published on his website at www.alexmagaisa.com