LAWYERS say only President Mugabe is immune from arrest while everyone else including his deputies and ministers are liable to arrest if they commit a crime.
The legal practitioners said this while responding to Acting President Phelekezela Mphoko who on Sunday claimed that the intended arrest of Higher and Tertiary Education, Science and Technology Development Minister Professor Jonathan Moyo was tantamount to undermining the authority of the President.
He said law enforcement agents could not arrest ministers without authorisation from the President adding that Prof Moyo could not be arrested at Parliament since legislators had immunity.
It is understood that officers from the Zimbabwe Anti-Corruption Commission accompanied by the police wanted to arrest Prof Moyo after a Politburo meeting last week after he evaded questioning by authorities on fraud and criminal abuse of office charges involving money and fuel coupons that belonged to the Zimbabwe Manpower Development Fund (Zimdef).
Zanu-PF deputy secretary for Legal Affairs who was the co-chairperson of the Constitution-making Committee, Cde Munyaradzi Paul Mangwana, said there was no provision in the Constitution that demanded that law enforcement agents must first seek permission when arresting ministers.
“The minister has no immunity because he is a citizen just like everybody else,” said Cde Mangwana.
“There is no legal provision that ministers are immune to prosecution while they are in office. Reporting to the President about a minister’s impending arrest is just a political courtesy. The only person who enjoys immunity is the President. No one else enjoys that, even ministers while they are in office.
“People should not try to hide behind a finger by claiming that the (Zimbabwe) Anti-Corruption Commission has no mandate to investigate alleged corruption on ministers. In fact, they are allowed by the Constitution to investigate and report to the police who then use their discretion to determine whether indeed there is a prima facie case or not. If a minister commits a crime, ZACC has a constitutional right to investigate them.”
“The Constitution does not give the President any powers over the functions of the Zimbabwe Anti-Corruption Commission apart from his role in the appointment process,” said Dr Magaisa.
“The ZACC is an independent commission and does not operate under the direction of any other person, not even the President.
“The Constitution provides that all persons are equal under the law. There is no provision that says ministers are subject to different rules from other citizens. If anything, as public officers in charge of public funds, ministers are expected to demonstrate higher levels of probity and accountability. The fact that ministers have been allowed to behave like little gods over the years does not mean the law protects them from arrest.”
However, another lawyer, Mr Tendai Toto, said law enforcement agents could consult the President when intending to arrest a minister to safeguard and promote national stability and governance.
“To me, it will be hazardous and disruptive to governmental functions to allow the free reign by police to arrest ministers upon receiving pieces of evidence suggesting reasonable suspicion of the commission of an offence. Police powers can be abused to settle political scores among other sinister objectives.
“The said policy must also not be abused and selectively applied. It must be applied in a transparent and accountable manner in tandem with the national objectives provided in the Chapter Two of the Constitution of Zimbabwe.
“The consultations will inform the police to arrest in accordance with any existing policy directives prescribed in terms of Section 221(4) of the Constitution. This is not to say that ministers are immune to criminal sanctions in accordance with the law.
“My view is that the Acting President made a pronouncement of governmental policy that binds the executive functionaries including the law enforcement agents. It is neither ultra vires the provisions of Section 56 of the Constitution nor an infringement of the rule of law for government to put in place policy that law enforcement agents must consult with the Presidency an interested party as the appointing authority of cabinet ministers and the Attorney General as the principal legal adviser of Government, before an arrest of a cabinet minister is effected,” said Mr Toto. Herald