Understanding the offence of criminal abuse of office

THE Criminal Law (Codification and Reform) Act, Chapter 9:23 created an offence called criminal abuse of office. The offence is intended to enjoin integrity and good governance so that persons in whom State power is reposed must act for the public good. The offence is created against public officers. It was designed to deal with corruption in the public sector.

In Section 169 of the Act, public officer includes: a Vice-President, Minister or Deputy Minister; or a member of a council, board, committee or other statutory body or local authority or which is responsible for administering the affairs or business of a statutory body or- local authority; or a person holding or acting in a paid office in the service of the State, a statutory body or a local authority; or a judicial officer.

Section 174 of the Act, which creates the offence reads: “174(1) If a public officer, in the exercise of his or her functions as such, intentionally- (a) does anything that is contrary to or inconsistent with his or her duty as a public officer; or (b) omits to do anything which it is his or her duty as a public officer to do; for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding15 years or both.

(2) If it is proved, in any prosecution for criminal abuse of duty as a public officer, that a public officer, in breach of his or her duty as such, did or omitted to do anything to the favour or prejudice of any person, it shall be presumed, unless the contrary is proved, that he or she did or omitted to do the thing for the purpose of showing favour or disfavour, as the case may be, to that person.”

To be guilty of abuse of public office, one must be a public officer who must have engaged in conduct that is inconsistent with his duty as public officer. In so acting or not acting, he must have been intentional.

The purpose of the conduct must be to show favour or disfavour to any person. The officer must, for a corrupt purpose, use his powers in a manner contrary to the purpose for which they were given.

A private company even where its major shareholder is the Government remains a private entity and its employees are not public officers. The fact that the Government is the major shareholder of a registered entity does not affect in any manner whatsoever its nature as a private entity.

In the case of S v Chikumba 2015 (2) ZLR 382 (H) with reference to Section 169 of the Act as to who is a public officer, the court said: “The section does not refer to Government-controlled entities. It refers to persons holding office in the service of the State. To say the Chief Executive Officer of Air Zimbabwe Holdings, a private company, is the same thing as “a paid office in the service of the State” is absurd. The Government is merely a shareholder in the airline. It is not the employer. In my view, the person referred to in that section is a civil servant who is employed directly by the State and paid directly by it.”

For the offence of criminal abuse to be established there has to be mental intention on the part of the accused in acting or omitting to act in the manner complained of, with an intention to show favour or disfavour to someone. The requirement of intention demonstrates that the section does not create a strict liability offence. The onus to establish beyond a reasonable doubt the commission of the offence lies on the State.

The presumptive proof casts a legal onus on the accused person to show on a balance of probabilities that he did not have the intention of favouring or prejudicing any person affected by his act or omission. Thus, the physical act which must be established by the State is that: (a) The accused person is a public officer; (b) Who in the course of his or her duties or functions; (c) By commission or omission, breached his or her duties or functions. The accused’s legal burden of disproving intention is on a balance of probabilities.

Abuse of office is when the public officer acts without honesty in order to favour or disfavour someone. The purported exercise of some power or authority by a pubic officer otherwise than in an honest attempt to perform functions of his or her office is what amounts to criminal abuse of office.

That is where the Zimbabwe Anti-Corruption Commission comes in to deal with corruption. ◆ TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646 or maandat@yahoo.com.