ANTI-CORRUPTION ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Application

   3.   Interpretation

PART II
THE ANTI CORRUPTION COMMISSION

   4.   Continuation of Commission

   5.   Autonomy of Commission

   6.   Functions of Commission

   7.   Instructions by Commission

   8.   Reports and recommendation by Commission

   9.   Director-General

   10.   Tenure of office of Director-General

   11.   Powers of Director-General

   12.   Deputy Director-General

   13.   Directors, Secretary, investigating officers and other staff of Commission

   14.   Declaration of assets

   15.   Identity card

   16.   Prohibition of disclosure of information to unauthorised persons

   17.   Immunity of staff

   18.   Impersonation and procurement of officer

PART III
CORRUPT PRACTICES

   19.   Corrupt practices by, or with, public officers

   20.   Corrupt transactions by, or with, private bodies

   21.   Abuse of authority of office

   22.   Possession of unexplained property

   23.   Corrupt transactions by, or with, agents

   24.   Corruption of members of public or private bodies with regard to meetings

   25.   Corruption of witness

   26.   Corrupt practices by, or with, foreign public official

   27.   Corruption in relation to sporting events

   28.   Conflict of interest

   29.   Gratification for giving assistance, etc. with regard to contracts

   30.   Gratification for procuring withdrawal of tender

   31.   Obstruction of justice

   32.   Gratification with regard to bidding at auction sale

   33.   Coercion of investor

   34.   Corrupt acquisition of public property and revenue

   35.   Electoral corruption

   36.   Concealment of property

   37.   Dealing with, using and concealing gratification

   38.   Concealment of offence

   39.   Public officer’s duty to report

   40.   Attempts and conspiracies

   41.   General penalty

   42.   Restitution

   43.   Recovery of gratification by distress, etc

   44.   Recovery of gratification corruptly received by agent

   45.   Certification of Government valuation officer or other specialist valuer

   46.   Certain matters not to constitute defence

   47.   Suspension of public officer charged with corruption

   48.   Suspension of public officer convicted of corruption

   49.   Effect of conviction

   50.   Offences by body corporate or unincorporate body

PART IV
INVESTIGATION OF CORRUPT PRACTICES

   51.   Lodging of complaint

   52.   Consideration of complaint

   53.   Power to require attendance before Director-General

   54.   Search without warrant

   55.   Search with warrant

   56.   Inspection of banker’s books

   57.   Power of arrest

   58.   Seizure of property

   59.   Custody and release of seized property

   60.   Restriction on disposal of property

   61.   Restriction on disposal of property by third party

   62.   Forfeiture of unexplained property

   63.   General offences

PART V
POWERS OF THE DIRECTOR OF PUBLIC PROSECUTIONS

   64.   Consent of Director of Public Prosecutions

   65.   Bail where suspect or accused person about to leave Zambia

PART VI
EVIDENCE, PRESUMPTIONS AND OTHER MATTERS

   66.   Presumption of corrupt intent

   67.   Corroborative evidence of pecuniary resources or property

   68.   Grant of indemnity by Director of Public Prosecutions

   69.   Protection of whistleblowers, victims, experts, etc.

   70.   Evidence of custom inadmissible

   71.   Absence of power, authority or opportunity, no defence

   72.   Corrupt practices coming to notice of commission, body or tribunal

   73.   Affidavit evidence

   74.   False, frivolous or groundless complaints or allegations

   75.   Forfeiture of proceeds or property corruptly acquired

   76.   Tampering with seized and forfeited property

   77.   Alternative conviction of accused person

   78.   Disapplication of secrecy obligations

   79.   Compensation for damage

   80.   Out of court settlement

PART VII
PUBLIC PARTICIPATION AND ACCESS TO INFORMATION

   81.   Public participation

   82.   Analysis and dissemination of information

   83.   Anti-corruption education and awareness

   84.   Maintenance of information

   85.   Guidelines on public participation

PART VIII
GENERAL PROVISIONS

   86.   Procedure for commencement of application

   87.   Register of gifts

   88.   Mutual legal assistance

   89.   Supremacy of Act

   90.   Defence

   91.   offences committed outside Zambia

   92.   Extraditable offences

   93.   Rules

   94.   Regulations

   95.   Repeal of Act 38 of 2010

   96.   Staff of Commission

      SCHEDULE

AN ACT

to continue the existence of the Anti-Corruption Commission and provide for its powers and functions; provide for the prevention, detection, investigation, prosecution and punishment of corrupt practices and related offences based on the rule of law, integrity, transparency, accountability and management of public affairs and property; provide for the development, implementation and maintenance of coordinated anticorruption strategies through the promotion of public participation; provide for the protection of witnesses, experts, victims and other persons assisting the Commission; provide for nullification of corrupt transactions; provide for payment of compensation for damage arising out of corrupt activities; provide for the domestication of the United Nations Convention Against Corruption, the African Union Convention on Preventing and Combating Corruption, the Southern African Development Community Protocol Against Corruption and other regional and international instruments on corruption to which Zambia is a party; repeal and replace the Anti-Corruption Act, 2010; and provide for matters connected with, or incidental to, the foregoing.

[16th April, 2012]

Act 3 of 2012.

PART I
PRELIMINARY

1.   Short title

This Act may be cited as the Anti-Corruption Act.

2.   Application

All offences under this Act shall be enquired into, tried and otherwise dealt with in accordance with the Criminal Procedure Code and any other written law.

3. Interpretation

In this Act, unless the context otherwise requires—

“agent” means a person employed by, or acting for, another and includes an officer of a public body or private body who acts for, or on behalf of, a public body or a private body or any other person, a trustee, an executor or an administrator of an estate of a deceased person;

“appropriate authority” means a person or institution to whom a recommendation is made under section 8;

“associate”, in relation to a person, means—

      (a)   a person who is a nominee or an employee of that person;

      (b)   a person who manages the affairs of that person;

      (c)   a former spouse or conjugal partner of that person;

      (d)   a firm of which that person, or that person’s nominee, is a partner or a person in charge or in control of its business or affairs;

      (e)   a company in which that person or that person’s nominee, is a director or is in charge or in control of its business or affairs, or in which that person, alone or together with that person’s nominee, holds a controlling interest or shares amounting to more than thirty percent of the total share capital; or

      (f)   the trustee of a trust, where—

      (i)   the trust has been created by that person; or

      (ii)   the total value of the assets contributed by that person before or after the creation of the trust, amounts, at any time, to not less than twenty percent of the total value of the assets of the trust;

“Board” means the Board of the Commission constituted under paragraph 2 of the Schedule;

“casual gift” means any conventional hospitality, on a modest scale or unsolicited gift of modest value, offered to a person in recognition or appreciation of that person’s services, or as a gesture of goodwill towards that person, and includes any inexpensive seasonal gift offered to staff or associates by a public or private body or a private individual on festive or other special occasions, which is not in any way connected with the performance of a person’s official duty so as to constitute an offence under Part III;

“Chairperson” means the person appointed as Chairperson under paragraph 2 of the Schedule;

“Commission” means the Anti-Corruption Commission referred to in section 4;

“Commissioner” means a person appointed as Commissioner under paragraph 2 of the Schedule;

“corrupt” means the soliciting, accepting, obtaining, giving, promising or offering of a gratification by way of a bribe or other personal temptation or inducement, or the misuse or abuse of a public office for advantage or benefit for oneself or another person, and "corruption" shall be construed accordingly;

“Deputy Director-General” means a person appointed as Deputy Director-General under section 12;

“Director-General” means the person appointed as such under section 9;

“Director of Public Prosecutions” means the person appointed as such under the Constitution;

“document” means any device by means of which information is recorded or stored, and includes—

      (a)   anything on which there is writing;

      (b)   anything in which there are marks, figures, symbols or perforations having meaning for persons qualified to interpret them;

      (c)   anything from which sounds, images or writing can be produced, with or without the aid of anything else; or

      (d)   any of the things referred to in paragraphs (a) to

      (c)   kept or maintained in electronic form;

“foreign public official” means—

      (a)   a person holding any executive, legislative, administrative or judicial office at any level of the government of a foreign State;

      (b)   any person performing public functions for a foreign State, or any board, commission, corporation or other body or authority performing a duty or function on behalf of the foreign State; or

      (c)   an official or agent of a public international organisation formed by two or more States or two or more public international organisations;

   "foreign State" means any country other than Zambia;

“Government” includes any Ministry, department, Service or undertaking of the Government;

“gratification” includes—

      (a)   money, any gift, loan, fee, reward, commission, valuable security, property, or interest in property of any description, whether movable or immovable;

      (b)   any employment or contract of employment or services and any promise to give employment or render services in any capacity;

      (c)   any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part;

      (d)   any service, favour or advantage of any description, such as protection from any penalty or from any action or proceedings of a disciplinary or penal nature, and including the exercise or the omission from the exercise of any right of any official power or duty;

      (e)   any valuable consideration or benefit of any kind, discount, commission, rebate, bonus deduction or percentage;

      (f)   any right or privilege; and

      (g)   any aid, vote, consent or influence;

“head of public institution” means a Chairperson, manager, chief executive or person in charge of a public body;

“illegal activity” means an activity carried out which, under any written law in the Republic, amounts to an offence;

“local authority” has the meaning assigned to it in the Local Government Act;

“officer” means a person appointed under section 13;

“official emoluments” includes an honorarium, a pension, gratuity or other terminal benefits;

“parastatal” means any company, association, statutory corporation, body or board or any institution of learning, in which the State has a financial interest;

“police officer” means a member of the Zambia Police Force;

“principal” includes an employer, beneficiary under a trust, and a trust estate as though it were a person, and any person beneficially interested in the estate of a deceased person as though the estate were a person, and, in relation to a public officer, the authority or body of persons in which the public office is held;

“private body” means a voluntary organisation, nongovernmental organisation, political party, charitable institution, company, partnership, club or any other person or organisation which is not a public body;

“property” includes any real or personal property, money, things in action or other intangible or incorporeal property, whether located in Zambia or elsewhere, and property of corresponding value in the absence of the original illegally acquired property whose value has been determined;

“public body” means the Government, any Ministry or department of the Government, the National Assembly, the Judicature, a local authority, parastatal, board, council, authority, commission or other body appointed by the Government, or established by, or under, any written law;

“public funds” has the meaning assigned to it in the Public Finance Act, 2004;

“public officer” means any person who is a member of, holds office in, is employed in the service of, or performs a function for or provides a public service for, a public body, whether such membership, office, service, function or employment is permanent or temporary, appointed or elected, full-time or part time, or paid or unpaid, and "public office" shall be construed accordingly;

“public property” means property belonging to or under the control of, or consigned or due to, a public body;

“relative”, in relation to a person, means—

      (a)   a parent, son, daughter, brother, sister, nephew, niece, uncle, aunt, grandparent or cousin of that person or that person’s spouse; and

      (b)   a spouse of that person;

“repealed Act” means the Anti-Corruption Act, 2010;

“Secretary” means the person appointed Secretary under section 13;

“seizure” means temporarily prohibiting the transfer, conversion, disposition or movement of any property or temporarily assuming the custody or control of property on the basis of an order issued by a court or a notice by the Director-General;

“sporting event” means an event or contest in any sport, between individuals or teams, or in which an animal competes, and which is usually attended by the public and is governed by rules of any sporting body or regulatory body;

“staff” means the staff of the Commission appointed under section 13;

“unexplained property” means property in respect of which the value is disproportionate to a person’s known sources of income at or around the time of the commission of the offence and for which there is no satisfactory explanation;

“valuable security” means any document—

      (a)   creating, transferring, surrendering or releasing any right to, in or over property;

      (b)   authorising the payment of money or delivery of any property; or

      (c)   evidencing the creation, transfer, surrender or release of any right, the payment of money or delivery of any property or the satisfaction of any obligation; and

“victim” means a person who suffers damage as a result of an act of corruption.

PART II
THE ANTI-CORRUPTION COMMISSION

4.   Continuation of Commission Act

   (1) The Anti-Corruption Commission continued under the repealed Act shall continue to exist as if established under this Act, and shall be a body corporate with perpetual succession and a common seal, capable of suing and of being sued in its corporate name and with power, subject to this Act, to do all such acts and things as a body corporate may, by law, do or perform.

   (2) The provisions of the State Proceedings Act shall apply to civil proceedings by, or against, the Commission as if, for a reference to the State there were substituted a reference to the Commission.

(3) The provisions of the Schedule apply to the Commission.

5.   Autonomy of Commission

Subject to the Constitution, the Commission shall not, in the performance of its functions, be subject to the direction or control of any person or authority.

6.   Functions of Commission

   (1) The functions of the Commission are to—

      (a)   prevent and take necessary and effective measures for the prevention of corruption in public and private bodies, including, in particular, measures for—

      (i)   examining the practices and procedures of public and private bodies in order to facilitate the discovery of opportunities of corrupt practices and secure the revision of methods of work or procedures which in the opinion of the Commission, may be prone or conducive to corrupt practices;

      (ii)   advising public bodies and private bodies on ways and means of preventing corrupt practices, and on changes in methods of work or procedures of such public bodies and private bodies compatible with the effective performance of their duties, which the Commission considers necessary to reduce the likelihood of the occurrence of corrupt practices;

      (iii)   disseminating information on the evil and dangerous effects of corrupt practices on society;

      (iv)   creation of committees in institutions for monitoring corruption in the institution; and

      (v)   enlisting and fostering public confidence and support against corrupt practices;

      (b)   initiate, receive and investigate complaints of alleged or suspected corrupt practices, and, subject to the directions of the Director of Public Prosecutions, prosecute—

      (i)   offences under this Act; and

      (ii)   such other offence under any other written law as may have come to the notice of the Commission during the investigation of an offence under this Act:

Provided that nothing in this paragraph shall be considered as precluding any public prosecutor from prosecuting, subject to the directions of the Director of Public Prosecutions, any offence under this Act which has come to the notice of the police during investigation of an offence under any written law;

      (c)   investigate any conduct of any public officer which, the Commission has reasonable grounds to believe may be connected with, or conducive to, corrupt practices;

      (d)   be the lead agency in matters of corruption;

      (e)   co-ordinate or co-operate, as applicable, with other institutions authorised to investigate, prosecute, prevent and combat corrupt practices so as to implement an integrated approach to the eradication of corruption;

      (f)   consult, co-operate and exchange information with appropriate bodies of other countries that are authorised to conduct inquiries or investigations in relation to corrupt practices;

      (g)   adopt and strengthen mechanisms for educating the public to respect the public good and public interest and, in particular—

      (i)   create awareness in the fight against corruption and related offences;

      (ii)   develop educational and other programmes for the sensitisation of the media;

      (iii)   promote an environment for the respect of ethics; and

      (iv)   disseminate information and sensitise the public on the negative effects of corruption and related offences; and

      (h)   do all such things as are incidental or conducive to the attainment of its functions.

   (2) The Commission may establish specialised units to investigate and deal with such matters as the Commission considers appropriate.

7.   Instructions by Commission

   (1) The Commission may instruct a public body on practices and procedures that are necessary to prevent, reduce or eliminate the occurrence of corrupt practices.

   (2) A public body shall, not later than ninety days from the receipt of the instructions from the Commission pursuant to sub-section (1), effect the necessary changes in its practices and procedures.

   (3) A public body which considers that the changes in practices and procedures contained in the instructions from the Commission shall be impracticable or otherwise disadvantageous to the effective discharge of its functions shall, within thirty days of the receipt of the instructions, make representations to the Director-General in writing.

   (4) The Commission may, after considering the representations of a public body made under sub-section (3), confirm, vary or cancel the instruction given to the public body.

   (5) The head of a public body which, without any reasonable explanation, fails to comply with the instructions of the Commission commits an offence and is liable, upon conviction, to a fine not exceeding one hundred thousand penalty units or to imprisonment for a period not exceeding one year, or to both.

   (6) In addition to the penalty prescribed in sub-section (5), the head of the public body which fails to comply with the instructions of the Commission shall be subject to disciplinary action, including dismissal from office by the relevant authority.

8.   Reports and recommendation by Commission

   (1) The Commission may, after an investigation into an offence under this Act, depending on the findings made, make such recommendation as it considers necessary to an appropriate authority.

   (2) An appropriate authority shall, within thirty days from the date of receipt of the recommendation of the Commission under sub-section (1), make a report to the Commission on the action taken by the appropriate authority.

   (3) The head of a public body which, without reasonable excuse, fails to comply with sub-section (2), commits an offence and is liable, upon conviction, to a fine not exceeding one hundred thousand penalty units or to imprisonment for a period not exceeding one year, or to both.

9.   Director-General

   (1) There shall be a Director-General of the Commission who shall be the chief executive officer of the Commission.

   (2) The Director-General shall be appointed by the President, subject to ratification by the National Assembly, on such terms and conditions as the President may determine.

   (3) A person is not qualified to be appointed as Director- General unless the person is qualified to be appointed judge of the High Court.

   (4) The Director-General shall be responsible for—

      (a)   the control, direction, management and administration of the Commission; and

      (b)   the implementation of any policy matters referred to the Director-General by the Board.

   (5) The Director-General may, subject to any specific or general direction of the Board, make standing orders providing for—

      (a)   the control, direction and administration of the Commission;

      (b)   the discipline, training, classification and promotion of officers of the Commission;

      (c)   the duties of officers of the Commission; and

      (d)   such other matters as the Director-General may consider necessary or expedient for preventing the abuse of power or neglect of duty by officers or other staff.

   (6) The Director-General shall not, while holding the office of Director-General, discharge the duties of any other office of emolument in the Republic.

   (7) The Director-General shall, before taking office, take an oath or affirmation before the President in the prescribed manner and form.

10.   Tenure of office of Director- General

   (1) Subject to sub-section (2), a person appointed Director- General shall vacate that office on attaining the age of sixty-five years:

Provided that the President may permit a person who has attained that age to continue in office for such period as may be necessary to enable that person to do anything in relation to proceedings that were commenced before the person attained that age.

   (2) A person appointed Director-General may be removed from office for inability to perform the functions of office, whether arising from infirmity of body or mind or from any other cause, or for misconduct, and shall not be removed except by, or in accordance with, a resolution passed by the National Assembly pursuant to sub-section (3).

   (3) If the National Assembly, by resolution supported by a simple majority, resolves that the question of removing the Director-General ought to be investigated, the Speaker of the National Assembly shall send a copy of such resolution to the Chief Justice who shall appoint a tribunal consisting of a chairperson and two other persons to inquire into the matter.

   (4) The Chairperson and one other member of the tribunal shall be persons who hold or have held high judicial office.

   (5) The tribunal shall inquire into the matter and send a report on the facts of that matter to the President and a copy to the National Assembly.

   (6) Where a tribunal appointed under sub-section (3) advises the President that the Director-General ought to be removed from office for inability as aforesaid or for misconduct, the President shall remove the Director-General from office.

   (7) If the question of removing the Director-General from office has been referred to a tribunal under sub-section (2), the President may suspend the Director-General from performing the functions of office, and any such suspension shall cease to have effect if the tribunal advises the President that the Director-General ought to be removed from office.

   (8) The Director-General may resign by giving three months’ notice, in writing, to the President, of the Director-General’s intention to resign.

11.   Powers of Director-General

   (1) The Director-General may, for the performance of the Commission’s functions under this Act—

      (a)   authorise, in writing, any officer of the Commission to conduct an inquiry or investigation into alleged or suspected offences under this Act;

      (b)   require the head, of any public body, to produce or furnish within such time as may be specified by the Director- General, any document or a certified true copy of any document which is in that person’s possession or under that person’s control and which the Director-General considers necessary for the conduct of an investigation into alleged or suspected offences under this Act:

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