BUCK STOPS WITH DPP IN DRUGS TENDERS - ANALYSIS

MBABANE – Indeed, the buck stops with the DPP.

Auditor General Timothy Matsebula, Funduzi Forensic Auditors and the Public Accounts Committee (PAC) may flag and conclude investigations into circumstances that led to the shortage of drugs in the country. But, it has been learnt, the Directorate of Public Prosecution reserves the right not to prosecute where there are no criminal elements in the cause at the shortage of drugs and medicines in the country. However, she can swing into action where the police or Anti-Corruption Commission (ACC) convinces her that their investigations are watertight enough to lead to the conviction of suspects. The current acting DPP is Lomvula Dlamini. Madala Mhlanga, the Chairman of the PAC, agreed with this newspaper’s analysis in an interview yesterday.

“We can only recommend to the DPP, police or ACC to look into certain cases that we have handled. We can do so much and not go any further,” he said. Under normal circumstances, he said police and the ACC attended PAC sittings. The chairman said he had advised them to continue with their independent investigations into cases that were being handled by the PAC. Where there are elements of criminality, Mhlanga who also doubles as the deputy speaker, said the law enforcement agencies should take over. “The PAC cannot effect arrest on suspects, but we can report the cases to the law enforcement agencies,” he emphasised.

After the police or ACC has completed their investigations, they are also expected to refer them to the DPP. The DPP will then determine if she has a winnable court case. In case criminality is detected in the drug shortage, sources said police, particularly the Fraud Department, would have to conduct their own investigation.In short, one of the country’s senior legal practitioners said the AG reports alongside those from the forensic auditors, were just tip-offs. They serve as the basis for a police investigation that must meet the DPP’s standards.

However, it must be said that, in most cases, police do little in their investigations if a forensic audit report has covered elements of criminality. Investopedia says a forensic audit examines and evaluates a firm’s or individual’s financial records to derive evidence used in a court of law or legal proceeding. It is a specialisation within accounting, and most large accounting firms have a forensic auditing department. Economists say forensic audits require accounting and auditing procedures and expert knowledge about the legal framework of such an audit.

Basically, they cover a wide range of investigative activities. Sources said a forensic audit is often conducted to prosecute a party for fraud, embezzlement, or other financial crimes. In the process of a forensic audit, the auditor may be called to serve as an expert witness during trial proceedings. The source said the intention by the AG to hire the forensics was necessitated by his desire to see the matter going to court. Still, the officer who can decide that the case is watertight enough to go to court on the strength of the evidence produced by the forensics is the DPP.

Section 162 (3) of the Constitution of the Kingdom of Swaziland (Eswatini) provides that the DPP shall have power in any case in which she considers it proper in doing the following –

• Institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person against the laws of Swaziland (Eswatini);
• Take over and continue any criminal proceedings that may have been instituted or undertaken by any other person or authority;
• Discontinue, at any stage before judgment is delivered, any criminal proceedings instituted or undertaken by the director or any other person or authority;
• Perform such other functions as may be prescribed.

It is provided in the Constitution that the powers under may be exercised by the director herself in person or by subordinate officers acting in accordance with the DPP’s general or special instructions.

DPP weighs public interest
According to subsection 6 (a), the DPP shall have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of the legal process.
She has to be independent and not be subject to the direction or control of any other person or authority. In terms of Section 162 (7), where national security may be at stake, the director of public prosecutions shall consult with the attorney general.

Public Accounts Committee
 The auditor general’s reports are reviewed by the Public Accounts Committee (PAC), which is established by Section 209 of the Constitution. Section 209 (3) provides that the duties of the Public Accounts Committee, shall be regulated by the Standing Orders of the House. The duties of the PAC, in terms of the Constitution, include the duty to examine and report to the House on the accounts of the government tabled before the House in terms of Section 208(5). The PAC does not have prosecutorial powers but it has powers, rights and privileges of the High Court or a Justice of the High Court at a trial for –

•  Enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise;
• Compelling the production of documents;
• Issuing a commission or request to examine witnesses abroad; .

If the supreme law equates the powers of the PAC to those of the High Court or a Justice of the High Court at a trial, it means members of the committee are not liable to any action or suit for any act or omission for which they are responsible.

The PAC, which reviews the AG’s reports, just like the High Court, has –

•  Unlimited original jurisdiction in civil and criminal matters;
• Jurisdiction to enforce the fundamental human rights and freedoms guaranteed by the Constitution;
• To hear and determine any matter of a constitutional nature.

It must be said that the PAC has similar powers with a Justice of the High Court at a trial. It is stated in the supreme law that a Justice of the High Court may, in accordance with rules of court, exercise in court or in chambers all or any of the jurisdiction vested in the High Court by this Constitution or any other law. In another development, the auditor general, as well, does not have prosecutorial powers. The AG has powers, not just to raise audit queries but also reserves the right to ‘surcharge’ a person responsible for incurring or authorising expenditure or loss. Surcharge in the context of auditing means to charge someone an extra amount for irregularities. It is also stated that the AG shall, in the exercise of the powers of his or her office, be independent and ‘not be subject to the direction or control of any person or authority’.

Reads Section 207 (8) reads: “the auditor general shall, in the performance of the functions under this Constitution or any other law, have power to disallow any item of expenditure which is contrary to law and to surcharge the person responsible for incurring or authorising that expenditure or loss.”

Corruption

The auditor general may assist the commission on Human Rights and Public Administration, which also serves as the Integrity Commission, during its investigation of instances of suspected or alleged corruption. Reads Section 164 (2) (e): “the Commission may investigate any matter referred to in subsection (1) in any of the following circumstances - investigate instances of alleged or suspected corruption and the misappropriation of public money or property by officials and to take or recommend appropriate steps, including reports to the attorney general or the Director of Public Prosecutions or the auditor general.” The Audit Act of 2005 (Act 4 of 2005), on the other hand, can also interrogate any person.

Reads Section 10 (2): “the auditor general may administer an oath or accept an affirmation from and interrogate under oath or upon affirmation any person whom he thinks fit to interrogate, in connection with the receipt, custody, payment or issue of property, money, stamps, securities, equipment, stores, trust money, trust property and other assets to which the provision of this Act and the Constitution apply.” The provisions of the law continues in the same paragraph as follows -“and in connection with any other matter in so far as it may be necessary for the due performance and exercise of the powers and duties conferred or imposed upon the auditor general by this Act and the auditor general shall not be required to reveal the identity of the person referred to in this paragraph.”

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