Editor’s Memo

A bad law

CONGRATULATIONS to the Law Society of Zimbabwe for exposing an attempt by the government to rope in lawyers to do the job of law

enforcers.


This may sound strange but there is already legislation to that effect in the form of the expansively named Bank Use Promotion and Suppression of Money Laundering Act which President Mugabe recently signed into law.


Last week we carried a story on the Law Society’s constitutional challenge to the new law which compels lawyers to record, disclose and report to government confidential information gathered from their clients. This, the government believes, would be a useful front in fighting money laundering and related criminal activities.


A cursory layman’s understanding of this law is that lawyers are being conscripted to act as state agents, contrary to their client’s interests. They are being positioned as whistleblowers on clients seeking advice.


Your legal practitioner is being asked to send incriminating information about you to the police, which information you would have given the lawyer in confidence. That same lawyer can still stand up for you in court because you will never know that he was the whistleblower. He is not allowed by law to tell you that he is passing on confidential information to the law enforcers.


So if it is information regarding a commercial crime, the lawyer can send a claim to central bank governor Gideon Gono’s Whistle Blower Fund and at the same time secure huge fees from his/her client for legal representation! Can the lawyer then stand up in court as a witness against his/her client? This is not practicable but it is not very far from what the law is seeking to achieve.


This is a shocking attempt by the government to bolster the ranks of the police, which have generally been ineffectual in dealing with cases of commercial felony. We often hear stories of policemen who arrest suspects on fraud charges the law enforcers have very little clue about. I remember vividly how in 1999 a politician who is currently behind bars used to drive around detectives from the Police Fraud Squad ordering them to arrest certain executives at First Mutual Life. What became of those cases? Is it that the senior managers at FML were as innocent as newborn babies or police were led down a garden path by the businessman-cum-politician?


The easy way out of this ineffectualness of the law enforcers, it seems, is for the state to compel lawyers to pass on information to the police about their clients. This is a disingenuous admission of failure by our government to adequately equip police to deal with commercial crime. We have of late seen the police arresting and detaining suspects in order to investigate a case instead of arresting after investigating. Laws have been crafted to abet this fundamentally unconstitutional practice.


The Bank Use Promotion and Suppression of Money Laundering Act is yet another attempt to subvert the legal process by undermining the role of lawyers whose job is being shifted from defending clients to incriminating them. Lawyers will not be party to this flawed process and have decided to challenge the law.


“It is essential that defence lawyers remain defence lawyers. Setting them up against their client and conscripting them into law enforcement will make them dis-legal, essentially dishonest and generally untrustworthy to the detriment of the legal profession,” the Law Society’s court application says.


The lawyers made another salient point in their application.

“It is not necessary to turn lawyers into whistleblowers in order to prevent them from engaging in or assisting in money laundering. If a lawyer believes that he or she is engaging in money laundering and persists in consummating the transaction, that lawyer will already be liable to discipline and criminal prosecution.


“That lawyer will not comply with the reporting and recording requirements. Only lawyers who would not engage in money laundering are likely to record, disclose and report. The reports are more likely to pertain to innocent clients than guilty ones.”


They added: “Money laundering is not a notorious evil in Zimbabwe. There is no prevalence of money laundering. There have been no reports of monies to support terrorism or proceeds from drug trafficking being transited through Zimbabwe. There have been no prosecutions relating to transmission of money or the housing of dirty money in Zimbabwe. It is not necessary to interfere with fundamental rights in order to deal with a problem which is non-existent in Zimbabwe.”


Well said. A bad law can never be used to fight crime. The most effective law is one where stakeholders have a sense of ownership and can participate openly in the implementation of the legislation.


The Bank Use Promotion and Suppression of Money Laundering Act does not fall into that category because stakeholders have already started to resist its implementation.


The most effective force in fighting all forms of corruption is the general public and an incorruptible government, not retrogressive laws.

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