JSC, ACC SECRECY OVER FUNDS USAGE

MBABANE – The expenditure of two of the country’s service commissions around pertinent areas of their operations remains a public mystery.

These commissions; the Judicial Service Commission (JSC) and the Anti Corruption Commission (ACC), fall under the Ministry of Justice and Constitutional Affairs.

With the JSC, there are questions on how much it spends on engaging the services of private attorneys and, as previously reported by this publication, why they opt for these lawyers yet they have the freely available representation of the Attorney General’s Office.

On the other hand, there is the ACC, which is reported to have a special fund that is used to take care of whistleblowers, but there is no explicit detail on how much is allocated towards this and how it is accounted for.

According to section 184 of the kingdom’s Constitution, “Every service commission shall, as soon as possible after the end of each financial year, submit a report to the line minister in respect of the discharge of its functions during the past year and the line minister shall lay every such report before both Houses of Parliament for consideration during budget debates.”

Ncobile Dlamini, the Communications Officer in the ministry, when asked specifically how much the JSC has reported to have spent in paying for private attorneys’ services over the last five years, did not give a clear response.

“The administrative expenses of the judiciary shall be charged on the consolidate fund; and the judiciary shall keep its own finances and administer its own affairs to the extent that it deals directly with the Ministry of Finance on budgetary issues,” she said.

The Ministry of Finance, on July 30, 2020, in responses to this publication regarding such finances, said it was not privy to such information and said the judiciary would be in a better position to respond.

jsc the judiciary’s baby

Meanwhile, Dlamini was also asked on when the JSC last submitted its reports to the ministry and if these could be shared since they are public documents.

“The judiciary submits quarterly and annual reports to the ministry and the reports are tabled in parliament in terms of the parliamentary procedures,” she said.

She continued: “The JSC does not have its own budget vote like other commissions. The financial affairs of the JSC are catered for and reported for under the judiciary budget.”

The ministry’s reports, however, do not specify the expenditure on engaging private attorneys. 

For instance, in the ministry’s first quarter (April 1 to June 30) performance report for the 2019/2020 financial year, it is reflected that an annual budget of about E13.7 million was allocated for the judiciary’s ‘professional and special services’.

For that quarter, an amount of E1 564 930 was released but the actual money spent was E3 001 404.45, reflecting a variance of 31.6 per cent or E720 715.45.

The about E13.7 million was split into two; Activity 11 and Activity 12.

For Activity 11, the annual budget for ‘professional and special service’ was E6 806 360 and the money released for that quarter was E1 134 392 while actual expenditure stood at E2 442 725.92, which was a variance of 115.85 per cent or E1 308 333.92.

For Activity 12, the annual budget for ‘professional and special services’ was E6 877 888 and the money released was E1 146 297 while the actual expenditure stood at E558 678.51, which was a variance of 51.26 per cent or E587 618.49.

For the second quarter (July 1 to September 30) of the 2019/2020 financial year, Activity 11 had an amount of E1 701 586 released to it yet an actual expenditure of E4 778 040.42 was incurred, which was a variance of 180.8 per cent or E3 076 454.42.

In the same quarter, Activity 12 saw an amount of E1 444 773 released to it while the actual expenditure stood at E1 734 405.55, which was a variance of 20.05 per cent or E289 632.55

In the second quarter report, there are explanatory notes to show what the various expenditure was for; and the ‘professional and special services’ have been listed to include: security for all judges; utility bills for judges; utility bills for all courts; sitting allowances for JSC members and members of the industrial courts; printing of courts documents and courts services; utility bills for judges and courts.

There is no mention of paying for services of private attorneys despite that there were instances during this quarter where they were engaged.

An example of this is the court case between senior lawyer Siboniso Clement Dlamini against the chief justice, Eswatini Government and the attorney general.

The matter was heard on August 8, 2019 and judgment delivered on November 8, 2019.

The chief justice was represented by senior attorney Zweli Jele from Robinson Bertram law firm.

In the quarterly report, the judiciary complained that the money for the ‘professional and special services’ was ‘not enough’.

In reference to the 20 per cent variance recorded on Activity 12, the judiciary said this was because the funds allocated on this controlling item for magistrates court was unusable and too little and that it was consumed by utilities.

 Dlamini, the ministry’s Communications Officer, was also asked why all other service commissions, such as the Teaching Service Commission, Civil Service Commission, Elections and Boundaries Commission and the Human Rights and Integrity Commission, relied upon the attorney general for legal representation but the JSC was an exception.

Her response was that while the AG represents the State organs, this does not deprive organs the right to find attorneys of choice in the interests of justice, should circumstances warrant.

“This is done in consultation and approval of the AG,” she said.

However, this contradicts what the AG, Sifiso Mashampu Khumalo, previously told the Times SUNDAY regarding him having to give permission to the JSC to use private attorneys.

Khumalo said: “On giving permission to the judiciary to engage private attorneys, in particular Robinson Bertram, we are not the competent authority as an office to do that, owing to independence of the judiciary.”

Dlamini stated though that the AG was the principal legal adviser to government and that the judiciary, as an arm of government, is represented by him in terms of Section 77 of the constitution.

“The chief justice is the head of the judiciary and is responsible for the administration and supervision of the judiciary. Accordingly, he has the responsibility to protect the interests and dignity of the judiciary by defending legal proceedings of the judiciary,” she said. 

But both Khumalo and Dlamini shared a similar view that the judiciary, in exercise of its judicial power, in both its judicial and administrative functions, including financial administration, shall be independent and subject only to the constitution and shall not be subject to the control or direction of any person or authority.

Questions over ACC special fund

Moving on to the other commission - the ACC; this publication has it in authority that money amounting to millions of Emalangeni is allocated to a ‘special fund’ each financial year to cater for processes to engage with informants or whistleblowers.

There is lack of clarity on how this money is accessed and accounted for by the ACC’s investigating officers as well as how its budget is determined each financial year.

ACC Director Jabu Phakathi was asked on the amount that is allocated to the ACC in terms of this fund; how it is accounted; and how much, on average, is paid to whistleblowers a year and how many are paid.

Her response was that the ACC is a law enforcement institution that operates within the ambit of the law and as per the allocated budget.

Therefore, she said, during the delivery of the Commission’s three-pronged mandate of prevention, education and investigations, there were operations that could be discussed in the public domain and those that should be confidential.

“Therefore, for obvious reasons, the investigation strategies of the Commission are covert and cannot be discussed in the public domain, hence, we are unable to delve into the questions raised,” the director said.

She gave assurance that there was no mishandling of funds at the ACC and stated that the commissioner was the commission’s warrant holder, which meant he controlled the budget and all expenditure.

“The ACC utilises public funds for its operations, and being such, the auditor general can assist with controls where required. Please note that yearly, all ACC Accounts are audited by the Auditor General’s Office,” she said.

In terms of the whistleblowers, Phakathi said the ACC, in the advancement of its mandate, can rope in anyone it regards useful or helpful in its course. 

“It is unethical to publicly disclose the identity of such individuals as this compromises their safety and security,” she said.

This publication has been reliably informed that the ‘special fund’ has been under the ACC’s principal accountant’s control and she was the one who was responsible for its release.

However, concerns were raised when the principal accountant was transferred from the ACC to another government ministry but continued to control the ‘special fund’.

Highly-placed sources said when the principal accountant left there was no replacement and the ACC went to the accountant general to request that the officer should continue exercising performing some of her previous duties at the commission. “The principal accountant was only replaced about three weeks ago and all along the ACC had no option but to continue using her services even though she was now based in other government ministry,” said one of the impeccable sources.

The sources said the main reason the ‘special fund’s expenditure was kept secret was to avoid having to give details on who was paid and how much that person was paid because this could possibly expose the whistleblowers and informants.

In its report included in the ministry’s quarterly performance reports, the ACC expenditure items are listed as 002 (CTA charges), 01 (personnel costs), 02 (communication and travel), 04 (professional services), 06 (consumables and office supplies), and 07 (durables).  

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