Missing dockets- - the unsung judicial fraud

17Feb 2017
The Guardian Reporter
The Guardian
Commentary
Missing dockets- - the unsung judicial fraud

IN Zimbabwe, as in several other parts of the developing world, criminal dockets and related documents mysteriously go missing at the courts or before quite often.

Problem number one. The judicial system seems not to be doing enough. Problem number two. Because of this complicit indifference to judicial fraud, justice is largely undermined. Main problem.

Sometime in May 2011, the Elected Councillors Association of Zimbabwe (Ecaz) came out fuming when a docket allegedly implicating Ignatius Chombo, then Local Government minister, and some senior Harare City Council as well as Zanu PF officials in land scams vanished from Harare Central police station.

The outfit had collaborated with the Combined Harare Residents Association in lodging a police complaint against Chombo who had allegedly connived with the then Harare municipality urban planning director, Psychology Chiwanga, in corrupt land sales in the capital's Glen Lorne area.

Ecaz filed another police complaint against other senior council employees who included Tendai Mahachi and Josephine Ncube, who allegedly awarded a Zanu PF heavyweight, Tendai Savanhu, an industrial stand by manipulating a council resolution. You guessed right, the docket also disappeared. Needless to say, the arm of the law was too short to reach Chombo and the others, and no trial, as far as I know, took place.

By Zimbabwean standards, Ecaz and the residents association must count themselves lucky that the police opened dockets against individuals with strong links to the ruling establishment in the first place. In many cases, the complainants end up as the accused, spend a night or two in police or remand custody and come out too happy that they have their freedom back after all.

These cases represent the tip of many other examples whereby dockets disappear or are destroyed at the pre-trial stage. Most of the dockets disappear when cases are taken to court, though. This has been happening for decades. For instance, back in 2003, a docket relating to a case in which 15 Movement for Democratic Change (MDC) supporters were accusing Andrew Langa, the Zanu PF member of parliament for Insiza then and now, of shooting at them could not be located at the Gwanda court. The trial could not proceed.

A former Plumtree resident magistrate, Stephen Mavuna, was arraigned before the courts for causing the disappearance of 200 court records. He was fired in January 2013. The most intriguing case of docket disappearance relates to Jonathan Mutsinze, a former apostolic sect leader who was convicted of murder in 2003 but was only sentenced in 2014 as his records were missing. He received a double life imprisonment after his case was reconstructed.
Bright Matonga, the former chief executive officer at the Zimbabwe United Passenger Company, escaped prosecution on charges of fraud when his docket also reportedly went missing.

He was subsequently appointed a deputy minister in President Robert Mugabe's government. Johannes Tomana, the troubled prosecutor-general who was the attorney general when this happened, is under investigation partly because of this case. He is being accused of abusing his office by suppressing Matonga's prosecution.

The list seems endless. What is grandly clear is that these dockets and other court records don't just vanish. The disappearances are meticulously calculated and systematic. Plainly, they are products of corruption involving individuals working in the judicial and law enforcement units.

Pre-trial disappearances mostly involve police officers while court clerks, prison officials, prosecutors and judicial officers from the prosecuting authority -- some of them very senior -- are responsible for missing dockets during trial.

There are both demand and supply dimensions to this type of fraud. Suspects and convicted criminals are the main beneficiaries of missing records. It is evident that they are, in the main, the ones that initiate the corruption by asking officials as well as police and prison officers to destroy the documents. It becomes difficult and sometimes impossible to proceed with trial once the documents go missing.

That means prosecution is either delayed or stopped as the suspects gain more time or are discharged for lack of a basis on which they can be tried. Reconstruction of cases is not a morning stroll in the park and crucial information can be lost in the process. But then, the law is an ass and mainly depends on technicalities rather than commonsense. Loss of essential information can turn a murderer, rapist or robber into a saint just like that.

The suspects are willing to pay handsomely for the destruction of the dockets, and this makes their job fairly easy because there are ready takers in a system where officials and officers are poorly remunerated. Whether in or outside custody, suspects have always found it relatively easy to get the resources and then bribe the officials. Prisoners use relatives and friends to connect with relevant individuals within the judicial system. Stories have been told of court clerks and prison officials who mysteriously built mansions and buy expensive cars after receiving huge bribes.

But this type of judicial corruption is not so linear. In some of the high profile cases, money is not the main motive in the disappearance of dockets. Here, the corruption takes a political dimension. Influential persons in the executive and judicial system manipulate judges, magistrates, prosecutors, police officers and other officials to destroy the records because the suspects are big shots whose trials would cause embarrassment or acute discomfort to the ruling elite and the accused persons. Police officers are also ordered to surrender dockets they would have started compiling to certain individuals or offices and, that way, prosecution can't go ahead.

There also seems to be intricate cross-department collusion in some cases as one arm of government steps in to cause the destruction of court or prosecution records relating to its employees, mostly senior ones.

For instance, the army can influence the prosecuting authority to get rid of the records of an accused military boss or even use one of their officers seconded to the judiciary to destroy the papers. Again, money is not the motive. The destruction of records is motivated by the desire to save a colleague.

Similarly, docket disappearance can be arranged at ministerial levels, in which case one cabinet minister just asks his counterpart to ensure that the trial of a certain individual does not go ahead. In a country where executive power is so enmeshed with other facets of public governance, this is easily achieved.

Granted, action has been taken against the culprits in some of the cases. But it seems not enough is being done by relevant authorities. Many cases relating to missing documents remain unresolved, and this is a good reason to worry. The destruction of records relating to prosecution largely goes unheralded and this tends to understate the crisis. But action must be taken.

The Judicial Services Commission must assume a leading role in probing the disappearance of court records, a festering reality with far-reaching effects on justice delivery. The Judicial Service Act (Chapter 7:18) is clear on the functions and roles of the commission.

Inter alia, and most useful in this context, it must inquire into and deal with complaints or grievances made against members of the commission, among them judges, magistrates, prosecutors, judicial officers and clerks of court. It must leave no stone unturned in investigating all reported cases of missing dockets and offer substantial redress while closing the loopholes that the culprits are using.

In doing this, and because the crisis of missing dockets is far flung, the commission must work closely with other departments and units that include the police and prison services department to get to the root of the problem.

Tawanda Majoni is the national coordinator at Information for Development Trust (IDT), a non-profit organisation promoting access to information on public and private sector transparency and accountability issues.