THIS article summarises a discussion paper titled The Role of Civil Society Organisations in Asset Recovery, produced by Dr Prosper Maguchu for Transparency International Zimbabwe (TIZ)'s Research and Information Unit (RIU). RIU seeks to provide professionally generated applied research as the basis for knowledge and information management on corruption-related issues, including research-based advocacy. This research will assist in governance planning, social and economic development and investment planning for private and public sector projects and local and international organisations.
In Zimbabwe, civil society organisations (CSOs) have played a significant role in documenting and raising awareness of cases of corruption and mismanagement that have deprived Zimbabweans of their basic human rights.
This work can also facilitate ongoing efforts by various anti-corruption agencies to recover assets lost through corruption-related offences, making the contribution of civil society even more important. Specifically, CSOs can complement current efforts by conducting research; policy analysis and advocacy;raising public awareness; case management and monitoring returned assets.
Hence, they should not only be encouraged to carry out such activities but also given a meaningful role to work with state institutions in the spirit of the National Anti-Corruption Strategy (NACS),which includes a role for civil society in anti-corruption work.
Broadly, the term ‘asset recovery’ is used to describe a series of actions undertaken in order to trace, seize, confiscate and return stolen assets. Each of the above-mentioned steps — tracing, freezing, confiscation and disposal — presents its own unique challenges.
Managing the stages of an asset recovery investigation can be extremely time-consuming and complex, and requires a lot of resources, expertise, and political will.
Commentators have described asset recovery as the most complicated area of law. Hence the need for multiple stakeholders, both private and public to coordinate and undertake this complex task.
Generally speaking, the process of recovering stolen assets in Zimbabwe as elsewhere is led by states, along.with the Zimbabwe Anti-Corruption Commission (Zacc), other the key authorities involved in corruption prevention and asset recovery in Zimbabwe are the Office of the Auditor General, the Corporate Governance Unit in the Office of the President and Cabinet (OPC), the Procurement Regulatory Authority of Zimbabwe (PRAZ), the Financial Intelligence Unit (FIU), the National Prosecuting Authority (NPA), the Zimbabwe Republic Police (ZRP) and the Zimbabwe Revenue Authority (Zimra) to name a few. On paper, most of these institutions have powers that in some ways outstrip those of the Zacc.
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In February 2020, Zacc announced that a staggering US$7 billion worth of assets were illegally held in foreign bank accounts.
Today, this translates to half of Zimbabwe's external debt stock based on the latest estimates. So, while the country continues to face enormous economic challenges, the vast amount of public funds which would be channelled towards the realisation of citizens’ social and economic rights, and potentially lift it out of its current macroeconomic challenges remain illegally stashed abroad.
Indeed, many challenges persist despite the existence of these institutions and the development of normative legal frameworks for the implementation of asset recovery efforts
Over and above declaring a moratorium allowing individuals and companies to return the illegally externalised funds and assets in 2017, the government went on to amend key pieces of legislation, as well as enacting new ones in 2019 on unexplained wealth orders (UWOs) to impose stronger obligations on perpetrators.
Zimbabwe became one of three countries in the world to adopt full UWOs and the first in Africa.
Yet despite these developments, further amnesty was called for the return of assets, suggesting that the drastic measures had not yielded the desired results, denting the war on corruption.
Furthermore, Zimbabwe has not been able to stop individuals and companies from abusing shell companies.
The Pandora Papers and Panama Papers have shown that shell companies are used to launder cash outside Zimbabwe.
The institutions in place to work on asset recovery have also been ineffectual relative to their size and statutory power, displaying little appetite for asset recovery.
Overall, lack of funding, lack of sufficient information, slow response or reluctance from requested countries, lack of technical capacity and lack of remedial procedures all militate against the current efforts of responsible agencies to recover stolen.
As a result, the amount recovered to date dwarfs the US$7 billion declared in 2020. Recent media reports suggest that by year-end, Zacc will have seized assets valued at US$1 billion, with 61 arrests made, and 68 completed dockets referred to theNPA.
In the face of such challenges, the government and third sector can achieve far more by working cooperatively than either could do alone.CSOs can also play a decisive role in various stages of the asset recovery process.
Their importance in this process has been enshrined in the United Nations Convention Against Corruption (UNCAC), whose article 13 calls on state parties to promote the active participation of individuals and groups outside the public sectorin preventing and combating corruption.
Similarly, the African Union (AU) – based on its 2018 annual theme ‘Winning the fight against corruption: A sustainable path to Africa’s transformation’, developed the Common African Position on Asset Recovery – highlighting the critical role of civil society, and calling on states to ensure greater civil society involvement in asset recovery.
It is therefore worthwhile to explore ways in which CSOs can be involved in asset recovery processes and mechanisms.
The first important role that CSOs can play regards awareness raising and research. Some of the leading guides on asset recovery globally, envisage a situation where CSOs “raise awareness about the significance of asset recovery and its role in the fight against corruption and in development efforts; to create demand for asset recovery; and to raise awareness about the roles and responsibilities of concerned stakeholders."”
Secondly, CSOs must engage in advocacy to “influence political will, promote reform in public policy, strengthen government accountability with regard to asset recovery and related issues and demand stronger prevention mechanisms, including from the private sector.”
A third important mechanism available to CSOs is undertaking casework and legal analysis “to generate useful information and intelligence to be used by relevant agencies such as financial intelligence units and investigative and prosecutorial authorities.”
Lastly, CSOs can play a role in the stages immediately before, and during the return of confiscated assets originating from corruption and related crimes.
For example, CSOs can help stakeholders to decide on returned assets being used in a targeted and/or transparent way.
Comparative examples are important to acknowledge in this debate.
In Nigeria, civil society contributed to national campaigns to recover public assets stolen by General Sani Abacha and his associates, most of which were hidden outside Nigeria.
By 2018 the amount returned by Switzerland specifically to Nigeria had reached more thanUS$1 billion.
Some of the resources were returned on the condition that the World Bank be involved alongside CSOs in monitoring its use, to prevent the money from being stolen again. The result was the formation of Monitoring Transparency and Accountability in the Management of Returned Assets (Mantra), a loose coalition of CSOs, established to monitor the disbursement ofthe recovered funds.
These reflections on the role which CSOs can play in asset recovery must,however,not be viewed in isolation of the challenges faced by CSOs in contemporary Zimbabwe.
Government-CSO relations need to improve vastly so that the rewards of collaboration on asset recovery can be reaped optimally.
The improvement in government-CSO relations must be complemented by additional legislative developments, in particular promulgating strong whistleblower protection and witness protection laws, so that CSOs, and indeed citizens at large can confidently support efforts to recover Zimbabwe’s stolen assets.
