REPORT OF THE PRIVILEGES COMMITTEE ON ALLEGATIONS OF CORRUPTION RAISED AGAINST HON. T. MLISWA, HON. CHIKOMBA, HON. NDEBELE AND HON. P.D. SIBANDA
HON. SEN. CHIEF CHARUMBIRA: Madam Speaker, I move the motion standing in my name:
That this House takes note of the Report of the Privileges Committee on allegations of Corruption raised against Hon. Mliswa, Hon. Chikomba, Hon. Ndebele and Hon. P. D. Sibanda.
Madam Speaker, I rise to present the Report on the Committee of the Privileges on the inquiry into allegations of solicitation of A bribe against four Hon. Members of Parliament. Madam Speaker, this is a long report. Unfortunately, procedurally, I cannot abridge it, I need to read the details to enable the Members to also debate subsequently. The only part that I will summarise is the Executive summary where we are simply thanking the Members of the Committee whom I will mention later by name and then thank the Speaker of Parliament, staff of Parliament and all other people who assisted us in this exercise to come up with this report.
Madam Speaker, I will start with the establishment, mandate and composition of the Committee.
Pursuant to Standing Order No. 24 of the Standing Rules and Orders of the National Assembly, the Committee was established on 18th February, 2019. The Terms of reference of the Committee were to inquire into the allegations of corruption against Hon. Mliswa, Hon. Chikomba, Hon. Ndebele and Hon. Sibanda.
The Committee of Privileges, hereinafter referred to as “the Committee”was established on 18 February 2019 by the Committee on Standing Rules and Orders to inquire into the allegations of corruption against Hon. Mliswa, Hon. Chikomba, Hon. Ndebele and Hon. Sibanda. The Committee was mandated to inquire into the allegations and table a report to the National Assembly. This Report therefore contains the processes, procedures adopted by the Committee, the submissions made by various witnesses during the inquiry, the observations, findings and recommendations of the Committee.
The Chairperson of the Committee takes this opportunity to express his gratitude to all the Members of the Committee for their immense contribution to the inquiry that culminated in this Report. Similarly, the Committee wishes to thank the Offices of the Speaker, Clerk of Parliament and staff for the support in the execution of its mandate and the production of this report.
Against this background, and, on behalf of the Committee, I have the honour and pleasure to present this report to the National Assembly.
1. Part I: Establishment, Mandate and Composition of the Committee Pursuant to Standing Order 24 of the Standing Rules and Orders of the National Assembly, the Committee was established on 18 February 2019. The terms of reference of the Committee were to inquire into the allegations of corruption against Hon. Mliswa, Hon. Chikomba, Hon. Ndebele and Hon. Sibanda. In particular, the Committee was mandated to-
1.1 inquire if Hon. Mliswa, Hon. Chikomba, Hon. Ndebele and Hon. Sibanda solicited a bribe of $400 000 from Mr. Goddard as facilitation fees for Mr. Goddard to secure a mining contract at Hwange Colliery Company;
1.2 determine if the conduct of the four Honourable Members of Parliament constitutes a breach of privilege amounting to contempt of Parliament; and
1.3 report in writing, its findings and recommendations to the Committee on Standing Rules and Orders on or before 15 March 2019 and to the National Assembly on or before 18 March 2019.
The following seven Members of Parliament were appointed to serve in the Committee:-
(i) Hon. Sen. Chief F. Z. Charumbira (Chairperson);
(ii) Hon. J. T. Samukange;
(iii) Hon. C. Madiwa;
(iv) Hon. I. Gonese;
(v) Hon. T. Mavetera;
(vi) Hon. P. Mpariwa; and
(vii) Hon. Dr. Nyashanu.
2. Part II: Basis of the Inquiry.
Pursuant to the provisions of Standing Order 68(d), Hon Mataranyika raised a motion on a “Notice of Privilege” to the National Assembly of Zimbabwe on 7 February 2019. The Notice detailed specific allegations of corruption against 4(four) Honourable Members of Parliament. The four members’ are;
2.1 Hon. T. Mliswa;
2.2 Hon. L. Chikomba;
2.3 Hon. A Ndebele; and
2.4 Hon. P. D. Sibanda.
The allegations emanated primarily from a report published by the Herald newspaper on 4 February 2019. In the report, it is alleged that the 4 (four) Honourable members of Parliament solicited for a bribe from Mr. James Ross Goddard (“Mr. Goddard”). The motion was debated by the Members of the National Assembly resulting in a ruling by the Speaker that a prima facie case had been established against the 4 (four) accused Honourable members. In accordance with the Standing Rules and Orders of the National Assembly, the matter was referred to the Committee on Standing Rules and Orders which subsequently established a Privileges Committee to conduct inquiries into the allegations.
The referral to the Privileges Committee recognizes that the allegations against the four Honourable members, if proven, were injurious to the good standing and reputation of Parliament. The inquiry is a sine qua non because Parliament is the constitutional watchdog over other branches of Government with respect to corruption and improper conduct.
The matter is indeed of profound public importance. It is indisputable that the inquiry into the alleged conduct of the four Honourable Members is in the public interest. The enquiry will also foster public confidence in the institution of Parliament and presents a unique opportunity to disabuse the mind of the public against the slightest perception of tolerance to corruption by Parliament.
This inquiry is consistent with prior Parliamentary resolutions where it resolved to be decisive in investigating allegations of corruption and to take stern action against its members whose conduct is found engendering improbity.
In the case of S v Ngara 1987 (1) ZLR 91 (S) @ 101A-C, Dumbutshena CJ remarked that: – “Any form of corruption resorted to by public officials … whose duty it is to uphold the law and by their conduct set an example of impeccable honesty and integrity, is rightly viewed with abhorrence. It is a dangerous and insidious evil in any community and in particular requires to be guarded against in a developing country”.
This inquiry will reaffirm the commitment of Parliament to the elimination of corruption which as noted in the “Global Corruption Barometer Africa 2019 report” has been on the rise. The need for decisive action cannot therefore be overstated in boosting public confidence in Parliament’s oversight role.
2.Part III: Proceedings of the Committee: Rules of Procedure and Evidence
The Committee proceedings were governed by the rules of procedure as contained in the Standing Rules and Orders. Although the Committee was not bound by the formal rules of evidence, the Committee was cognizant of the need to uphold the right of the four Hon members of Parliament to make representations through their legal counsel and to cross examine witnesses in accordance with the principles of natural justice and section 68 (1) of the Constitution of Zimbabwe.
At its inaugural meeting, the Committee set its modus operandi and agreed on the procedure to be followed during the inquiry. The Committee held a total of sixteen (16) meetings, thirteen (13) of which were deliberative while three (3) were for gathering oral evidence.
The Committee commenced the inquiry by requesting a statement from Mr. Goddard in the form of an affidavit. In response, Mr. Goddard submitted an affidavit deposed to in December 2018. The Committee observed that the affidavit presented by Mr. Goddard was the same as the one he had deposed to when he first made a complaint against the four (4) accused Honourable Members to the police.
In view of the fact that the Committee had not yet been appointed in December 2018, the Committee requested Mr. Goddard to submit a fresh affidavit specifically responding to the request by the Committee. Upon reviewing Mr. Goddard’s affidavit, it became apparent to the Committee of the need to request for written submissions from:-
3.1 Mr. D Steyn (Mr. Steyn) the Mining Director at JR Goddard Contracting;
3.2 Mr Tundiya, the facilitator of the meeting between the four accused Honourable members of the Portfolio Committee on Mines and Mining Development and Mr. Goddard; and
3.3 Hon Mliswa, Hon Chikomba, Hon Ndebele and Hon Sibanda.
The above-listed individuals were mentioned in Mr. Goddard’s affidavit. After considering the sworn submissions, the Committee sought clarification of the issues and requested corroboration of information received through viva voce evidence. The oral hearings were held from 8 to 10 April 2019. The Committee also resolved to obtain: –
3.4 A report from the police to whom Mr. Goddard had first reported the matter;
3.5 An affidavit from Ms. Muswe, the former Acting Board Chairperson of Hwange Colliery in view of the fact that her name was extensively referred to in Mr. Sibanda’s affidavit and during oral submissions.
4. Part IV: Preliminary legal issues.
During the proceedings of the Committee, the following preliminary legal issues arose-
4.1 Right of Audience of Hon. Job Sikhala as Legal Counsel for Hon Ndebele and Hon Sibanda
During theoretical evidence sessions, Hon. Job Sikhala appeared before the Committee intending to represent Hon Ndebele and Hon Sibanda. Both Hon. Ndebele and Hon. Sibanda were absent. The Committee observed that his appearance as counsel for the two accused Honourable members raised issues of conflict of interest considering his status as a Member of Parliament. The Committee was fully aware of section 69 of the Constitution which confers upon every citizen the right to be represented by a legal practitioner of his/her choice before any court, tribunal or forum.
The Committee’s apprehension was based on the fact that Hon. Sikhala could not wear two hats at the same time, one of being a Member of the National Assembly that had ordered the inquiry of the accused members and at the same time serve as legal counsel for the accused members. Hon. Sikhala argued that there was no provision in the law which prohibited him from representing the two accused Honourable Members. He further implored the Committee to distinguish between his roles as a sworn Member of Parliament and as a legal practitioner. Hon. Sikhala’s representations in seeking to appear for the accused members were debated extensively by the Committee. He, therefore, had to make a choice to either represent the four Honourable Members or to recuse himself from debating the accused Honourable members’ cases when presented in Parliament.
In response to the concerns raised by the Committee, Hon. Sikhala indicated that he would recuse himself during the debate when the report is eventually brought before the National Assembly.
The Committee, however, deemed his appearance inappropriate. The Committee observed that the request by Hon. Sikhala to represent the Members of Parliament was contrary to section 196 (2) of the Constitution and section 5 (2) of the Code of Conduct and Ethics for Members of Parliament as read with section 198 (b) of the Constitution. The foregoing provisions oblige public officers to avoid any conflict between their personal interests and their public or official duties. In light of the foregoing, the Committee resolved that Hon Sikhala could not assume both conflicting responsibilities. Following Hon. Sikhala’s disbarment, Mr. Musapatika, a legal practitioner from Hon. Sikhala’s law firm finally replaced Hon Sikhala and appeared as legal representative for the two accused Honourable Members.
4.2. Request for clarity on procedural matters by Advocate T. Zhuwarara representing Hon. Mliswa
Advocate Zhuwarara raised issue on whether the Committee would use an evidence leader and requested the general procedure to be followed during the inquiry. He further sought clarity on whether the Committee intended to prefer charges against his client and if convicted, would it pass sentence as previously witnessed in the case of Parliament versus Roy Bennet. Advocate Zhuwarara also threatened to press criminal charges against any witness who would be found to have perjured himself after the testimonies of Mr. Goddard and others before the Committee.
To address these concerns, Advocate Zhuwarara and his client were advised that Ms. Elizabeth Hove, an Assistant Counsel to Parliament, would serve as the evidence leader. The Committee further advised that the case before it was purely an inquiry and, therefore, was not a trial akin to court proceedings. The Committee advised that it would not be competent to pronounce a verdict and pass a sentence, given that its terms of reference only mandated it to make findings and recommendations to the National Assembly. Upon request, the legal practitioners were also given all the statements submitted in relation to the case.
4.3 Scope of Inquiry
Through his legal counsel, Hon. Mliswa objected to the extraneous allegations raised in paragraphs 7 to 9 of Mr. Goddard’s affidavit concerning a separate meeting between them. In his argument, he pointed out that the allegations raised were neither within the purview of the Committee’s present inquiry nor were they contained in the Herald article that prompted the inquiry. He, therefore, objected to the leading of evidence in regard to those particular allegations. The Committee considered Hon. Mliswa’s submissions and upheld the objection.
4.4 Objection to the Committee’s Terms of Reference
Hon. Mliswa further objected to the Committee’s Terms of Reference which mandated it to determine whether or not his conduct and that of his co-accused Honourable Members constituted a breach of privilege amounting to contempt of Parliament. He objected to the formulation of the terms of reference because in his view, parliamentary privilege and contempt of Parliament were different. After consideration of the argument, the Committee overruled the objection and proceeded to hear oral evidence.
5.Part V: Summary of Evidence Presented to the Committee
In summary, the Committee found the following evidence to be either common cause or not seriously disputed―
5.1 Mr. Tundiya owes Mr. Chikomba a sum of between US$1600 and US$ 2100 based on the evidence received by the Committee.
5.2 Two meetings took place at the Bronte Hotel between Hon. Chikomba, Hon. Ndebele, Hon. Sibanda and Mr Tundiya before 15 November 2018.
5.3 Mr. Tundiya convened a meeting on 15 November 2018 between the four Members of the portfolio committee on Mines and Mining Development and Mr. Goddard. On that same day, he drove to meet Mr. Goddard in Shangani and the two immediately proceeded to Harare at night.
5.4 Hon. Sibanda contacted Hon. Mliswa to attend the meeting with Mr. Goddard and Mr.Tundiya at the JR Goddard offices in Borrowdale, Harare.
5.5 The meeting took place in Borrowdale, at night.
5.6 The convenor of the meeting (Mr Tundiya) did not chair the meeting. The meeting was chaired by Hon. Mliswa, who summarised the issues concerning the mining operations at Hwange Colliery Company.
5.7 During the meeting, Hon. Mliswa assisted by Hon. Ndebele, advised the JR Goddard team that it was necessary for them to meet the Minister of Justice, Legal and Parliamentary Affairs because Hwange Colliery Company was under reconstruction.
5.8 Hon. Mliswa and Hon. Ndebele also indicated to the JR.Goddard team that they were willing to facilitate that meeting with the Minister.
5.9 The team from JR Goddard, for all intents and purposes, believed the meeting to be one with members of the Portfolio Committee on Mines and Mining Development. Hon Mliswa left before the meeting ended. A discussion regarding the alleged solicitation of bribe took place in the car park after the meeting had ended. Hon. Ndebele was not present when the alleged solicitation of bribe took place. He was seated in his car.
5.10 The figure of $400 000 was alleged to have been mentioned by Hon. Chikomba and conveyed to Mr. Goddard by Mr. Tundiya. This allegedly happened after Mr. Goddard sought clarification regarding the “something” which Hon Chikomba had mentioned. Hon. Sibanda and Hon. Chikomba were allegedly present at this discussion, while Hon. Ndebele sat in the car throughout this alleged discussion about the money.
5.11 Hon. Mliswa left the meeting earlier than the other accused three Honourable members. He left before the issue of payment of the alleged $400 000 bribe was raised and discussed.
5.12 On the submission by Mr. Steyn, the alleged $400 000 was supposed to be split into $100 000 for each member of the Portfolio Committee on Mines and Mining Development who had attended the meeting. Hon. Chikomba gave his bank account details to J.R. Goddard.
5.13 Hon. Chikomba conceded that he mentioned the figure of $ 400 000 but argued that he had mentioned it as a casual remark and in relation to the debt he was owed by Mr. Tundiya.
5.14 Hon. Ndebele spoke to Mr. Goddard the following morning and dissociated himself from the matters which had been discussed the previous night.
6. Part VI: Submissions by relevant Parties/Witnesses
The Committee received both oral and written evidence from nine (9) witnesses. The evidence is on record and incorporated herein as if set forth in full and will, therefore, not be repeated herein except where it is required for emphasis. The following is the Committee’s analysis of the submissions of various witnesses to the Committee-
6.1 Analysis of the Submissions by Mr. Goddard
6.1.1 Mr. Goddard is the Chief Executive Officer of JR Goddard Contracting Company (JR Goddard). His testimony was corroborated by Mr. Steyn who affirmed that Mr. Tundiya called Mr. Steyn on 15 November, 2018 impressing the necessity for him (Mr. Goddard) to travel to Harare for a meeting with the Portfolio Committee on Mines and Mining Development. The purpose of the meeting was to discuss the proposal for JR Goddard to mine at Hwange Colliery.
6.1.2. Prior to this, Mr. Tundiya and Mr. Goddard had visited Hwange Colliery where they convened a meeting with the mine management at the mine premises, including inspection of the mining site. The agenda was the proposal for JR Goddard to mine at Hwange Colliery. This meeting was once again facilitated by Mr. Tundiya.
6.1.3. Mr. Goddard further testified that the purpose of his meeting with Mr. Tundiya in Shangani on 15November 2018 was to strategize on meeting the Members of the Portfolio Committee on Mines and Mining Development in view of the Committee’s impending visit to Hwange Colliery on 16 November 2018.
6.1.4. That visit to the mine would include discussions by the Committee on who could partner with Hwange Colliery in the mining operations. As a result, it became vital that he and Mr. Tundiya meet the Portfolio Committee on Mines and Mining Development before the Committee travelled to Hwange. Apparently, that was the reason Mr. Goddard and Mr. Tundiya drove to Harare for the meeting on that very night. On their way, they picked Mr. Steyn at Selous and proceeded to JR Goddard offices in Borrowdale, Harare.
6.1.5. Present at the meeting were the four Honourable members, Mliswa, Ndebele, Chikomba and Sibanda. At the meeting, it was emphasized to J.R. Goddard and his team that the Portfolio Committee on Mines and Mining Development had been mandated to come up with recommendations on who should mine at Hwange Colliery.
6.1.6. The Committee on Mines and Mining Development had influence on who could mine at Hwange Colliery. Hon. Mliswa left before the meeting ended, saying he had family commitment. After the meeting in the board room, Hon. Ndebele went and sat in the car. Hon. Chikomba and Hon Sibanda continued to talk to Mr. Goddard and his team in the car park. There was a part of a discussion by Hon. Chikomba, Hon Sibanda and Mr.Tundiya in Shona language.
6.1.7. Mr. Steyn and Mr. Tundiya continued engaging the two Honourable members. It was during that discussion, in the car park, that Hon. Chikomba instructed Mr. Tundiya to request a facilitation fee of $400 000 from Mr. Goddard to ensure his company secured a mining contract at Hwange Colliery.
6.1.8. Hon. Chikomba submitted his bank details into which the payment could be made. Mr. Goddard however denied that he was interested in the Hwange contract.
6.1.9. From the evidence recited above, this assertion by Mr. Goddard cannot possibly be true. In fact, it is preposterous. After being approached by Mr. Tundiya on the proposal to replace the contractor at Hwange Colliery, he personally travelled to Hwange and met the Colliery management team at their premises.
6.1.10. He even toured the mining site. When he was called by Mr. Tundiya and advised on the necessity to meet Members of the Mines Committee in Harare, he responded promptly and requested his Mining Director (Mr. Steyn) to accompany him to Harare on the same day. It is unconvincing that such a renowned business person could travel about 400km from Shangani to Harare for a meeting at night without prior knowledge of the agenda of the meeting.
6.1.11. In his affidavit, Mr. Steyn, stated that Mr. Tundiya had insisted through a phone call, that Mr. Goddard should travel to Harare to discuss the proposal of their company to mine at Hwange Colliery.
6.1.12. During the oral evidence session, Mr. Tundiya indicated that he had no other business with Mr. Goddard besides the Hwange Colliery mining contract. The same subject was discussed during the meeting in Borrowdale with the Members of the Committee on Mines and Mining Development.
6.1.13. The Committee was, therefore, persuaded to believe that Mr. Goddard was more than eager to secure the contract to mine at Hwange. However, his reason for professing lack of interest in the mine could not be conclusively discerned from the evidence. It could have been an attempt to lessen his moral blameworthiness in the circumstances underlying this allegation.
6.1.14. Mr. Goddard was firm in his allegations as it
particularly relates to Hon. Chikomba and Hon. Sibanda. However, the impression underlying Mr. Goddard’s allegations was vehemently denied by Hon. Chikomba and Hon. Sibanda.
6.1.15. Although Mr. Goddard’s testimony was corroborated by Mr. Tundiya, Mr. Steyn and Hon. Ndebele, Hon. Chikomba’s view is that the conclusion by Mr. Goddard on the discussion between them and on the alleged mentioning of the figure of $400,000.00 to Mr. Steyn and Mr. Tundiya was rather preposterous.
6.2 Analysis of the Submissions by Mr. Steyn
6.2.1 He is the Mining Director of JR Goddard Contracting. On the night in question, he was picked at Selous by Mr. Goddard who was in the company of Mr. Tundiya. The three of them proceeded to Borrowdale offices of JR Goddard where the meeting was to take place. His evidence in all material respects and aspects corroborated that of Goddard on what transpired at the meeting and thereafter. We will therefore not rehash the same.
6.2.2 Crucial in his evidence was the statement that the $400 000 was mentioned as it relates to the allegations against the four Members of the Committee on Mines and Mining Development.
6.2.3. However, he was the only one who stated that the amount of $400 000 was mentioned. This aspect of Mr. Steyn’s statement was in sync with statements attributed to Hon. Chikomba and Mr. Tundiya and Mr. Goddard, although the impression and conclusion made out of any alleged reference to money differed from Hon. Chikomba.
6.2.4. On Mr. Steyn’s version, it was Hon. Chikomba who stated that if Mr. Goddard could not afford $400 000, he could pay $200 000 with the balance to be paid after getting the contract. Although Hon. Sibanda argued that this discussion related to settlement of Hon. Chikomba’s debt by Mr. Tundiya, he confirmed Mr. Steyn’s version when he indicated in his affidavit that he overheard Hon. Chikomba telling Mr. Tundiya that part of the money would be deposited the following day.
6.2.5. He also inquired on the modalities for payment and Hon. Chikomba offered that the money be deposited into his account. Hon. Chikomba then furnished his account details on a piece of paper.
6.2.6. In their submissions, the two accused Honourable Members admitted that this indeed happened. They argued though that this was for payment of a debt owed to Hon. Chikomba by Mr. Tundiya. What remains preposterous about that assertion is that by whatever exchange rate a debt of at most US $2100 could not suddenly balloon to the $400 000 which was to be paid into Mr. Chikomba’s account.
6.3 Analysis of the Submissions by Mr. Tundiya
6.3.1 Mr. Tundiya was the architect of the entire bribery allegations. He arranged the meetings between Mr. Goddard and management at Hwange Colliery. He held two meetings with Hon. Chikomba, Hon. Ndebele and Hon. Sibanda at Bronte Hotel in Harare. Hon. Mliswa did not attend those meetings. The three Hon. Members of Parliament confirmed meeting him at Bronte Hotel. However, it was their position that the encounters were purely coincidental and, therefore, neither planned nor pre-scheduled.
6.3.2 Mr. Tundiya was again the convener of the meeting of 15 November 2018 at JR Goddard Borrowdale offices. He was described as a “conman” by Hon. Mliswa and his role in these bribery allegations appears to lend credence to that description. He wanted Mr. Goddard to secure a mining contract at Hwange Colliery. To ensure that this was successful, he orchestrated meetings of relevant stakeholders, including the Hwange Colliery management and the Hon. Members of the Parliamentary Portfolio Committee on Mines and Mining Development.
6.3.3 In his submission, he stated that he knew and was connected to Mr. Goddard in relation to the mining contract at Hwange. It could be inferred that his meetings with the Honourable Members of the Portfolio Committee on Mines and Mining Development and Mr. Goddard and his company were predominantly in relation to the Hwange mining contract. However, reference was made to the debt owed to Hon. Chikomba. In the submission, the amount he owed Hon. Chikomba was either $1600 or $2100, but the evidence is unclear as to the circumstances and origin of the debt in question.
6.3.4 In his submission, when the alleged figure of $400 000 was stated to Mr. Goddard, he (Mr. Goddard) complained that it was “too much” and that he could afford $ 200 000.
6.4 Analysis of the Submissions by Hon. Chikomba and Hon. Sibanda
6.4.1 The evidence of these two accused Honourable Members of Parliament is discussed together because their defence to the allegations and the witnesses’ evidence against them are largely similar.
6.4.2 Their testimonies were to the effect that Mr. Tundiya had testified before the Committee on Mines and Mining Development on account of his association with Hwange Colliery. At that appearance, he incidentally mentioned that Hon. Chikomba owed him money.
6.4.3 They then met him at Bronte Hotel but denied that it was a planned meeting. On 15 November 2018, they went to meet Mr. Tundiya at JR Goddard offices in Borrowdale with a view to collect Hon. Chikomba’s debt. Hon. Sibanda provided a vehicle while Hon. Ndebele, as a legal practitioner, attended as legal counsel for Hon. Chikomba.
6.4.4 Hon. Sibanda and Hon. Ndebele indicated that the venue of the meeting of 15 November 2018 was changed three times for reasons that were not clear. Hon. Chikomba further stated that they met Mr. Tundiya along Borrowdale Road where his car was parked with hazard indicators flashing. He also stated that when they identified Mr. Tundiya, he led them to Mr. Goddard’s Office. There was no mention of the changes in venue as alleged by Hon Sibanda and Hon Ndebele.
6.4.5. On their version, there was discussion with Mr. Tundiya about Mr. Goddard attending the meeting as Mr. Tundiya’s business partner who was going to assist in the settlement of Hon. Chikomba’s debt.
6.4.6 They said this discussion took place before they got to the venue. However, there was information that Mr. Goddard, Mr. Steyn and Mr. Tundiya arrived at the venue ahead of all the accused Hon. Members of the Committee on Mines and Mining Development. This aspect was corroborated by Hon. Mliswa and Hon. Sibanda who confirmed that when they arrived, Mr. Goddard and his team were already at the offices.
6.4.7 The two further deposed in their affidavits that Mr. Goddard chaired the meeting and undertook to settle Mr. Chikomba’s debt. Mr. Goddard was said to have been surprised that the debt was in United States dollars and that it had been outstanding since 2007.
6.4.8. The Committee had reservations about the nature of a debt that will draw Hon. Members of a Parliamentary Portfolio Committee to convene an emergency meeting at night.
6.4.9. What had become urgent with regards to the debt is not explained, considering it was said to have been owed from as far back as 2007. This, of necessity, begs the question would a debt of US$2100 have taken a business person of Mr. Goddard’s stature to travel all the way from Shangani Harare at night, accompanied by his Mining Director to only give an assurance to four (4) Members of Parliament that he would take over and pay the debt on behalf of Tundiya. This puts to credence the allegations relating to solicitation.
6.4.10. It is of the essence to note that Hon. Mliswa who chaired the meeting had a different version of what transpired. He testified that at the meeting, the only issue discussed was the Hwange Colliery where he outlined government policy that encouraged public- private partnerships between the government and private players. Hon. Ndebele also confirmed that Hon. Mliswa left before the alleged $400 000 was mentioned in the car park. This however creates the impression that the debt issue could have been a smokescreen for convening the meeting at night.
6.4.11. A conspectus of these submissions by the Honourable Members, when taken cumulatively cast doubt on whether the sole subject of discussion was the debt owed to Hon. Chikomba or about issues related to the mining contract at Hwange Colliery.
6.5. Analysis of the Submissions by Hon. Ndebele
6.5.1. All the evidence against Hon. Chikomba and Hon. Sibanda relate to Hon. Ndebele in equal measure. He attended the meetings with Mr.Tundiya at Bronte Hotel as well as the one at Mr. Goddard’s offices.
6.5.2. The explanation for his presence was that, as a lawyer, he was there to give legal advice to Hon. Chikomba. Questions were raised as to why he conducted his legal work at night? The Committee notes that there was no submission confirming Hon. Ndebele’s capacity as legal representative of Hon. Chikomba. The Committee further notes that there is no law prohibiting a lawyer from consulting with a client at night. It could also be plausible that he may have been acting on a pro-amico basis.
6.5.3.Two grounds, however, set him apart from Hon. Chikomba and Hon. Sibanda. Firstly, when the alleged request for payment of the $400 000 was made in the car park, he was in his car and did not participate in that discussion. That he sat in the car is fortified by all the other witnesses.
6.5.4. The alleged acts of Hon. Chikomba and Hon. Sibanda could only be imputed on him where applicable on the basis of the doctrine of common purpose. That doctrine is a criminal law concept which the Committee doubts has a place in this inquiry. Even if it does, there is no evidence on record to establish such common purpose. Nothing either shows that he foresaw or knew that the other Hon two members would engage in any other conducts as alleged.
6.5.5. Secondly, Hon. Ndebele allegedly called Mr. Goddard the following morning and advised him that he was distancing himself from all that was alleged to have transpired the previous night. Disassociation from a criminal enterprise is a complete defence to a crime. In S v Ndebu & Another 1985 (2) ZLR 45 (SC), it was held that;
“in order to afford himself a defence to the crime with which the principal offender is charged, a socius criminis who is present, abetting in the commission of a crime, must do more than merely withdraw from the scene of the crime; in particular, he must do something positive to avert the danger which his recklessness has brought about.”
Further in S v Beahan 1991 (2) ZLR 98 (SC), the court held that;
“An accomplice who wishes to dissociate himself from a criminal common purpose must, if he is to escape liability, take reasonable steps to frustrate the purpose where his contribution has been anything more substantial than assent prior to the event. Mere withdrawal will only avail him where he has done no overt act toward the completion of the crime.”
6.5.6 Hon. Ndebele’s call to Mr. Goddard, therefore, operated to effectively disassociate himself from the alleged acts of Hon. Chikomba and Hon. Sibanda. By intimating to Mr. Goddard that he was distancing himself from all that had allegedly transpired the previous night, he effectively afforded himself complete indemnity on any alleged misconduct.
6.6. Analysis of the Submissions by Hon. Mliswa
6.6.1 The only part he played in this matter was attending the meeting on 15 November 2018 at JR Goddard offices. Even then, it appears that his attendance was well-intentioned. It cannot be gainsaid that what was discussed during his presence was government policy on partnerships in mining between government and private players. He and Hon. Ndebele advised Mr. Goddard that he was supposed to meet the Minister of Justice, Legal and Parliamentary Affairs since Hwange Colliery was under reconstruction.
6.6.2 He indicated that Mr. Tundiya was not known to him but had appeared before the Mines Committee. He went on to label Mr. Tundiya as person of questionable character and for that reason he prevented him from speaking at the meeting.
6.6.3 He indicated that he had to chair the meeting because he did not want Mr. Goddard to misunderstand the purpose of the meeting. This statement is in line with other submissions confirming that the meeting was predominated with discussions concerning the Hwange mining contract.
6.6.4 What sticks out like a sore thumb from the evidence before the Committee is that Hon. Mliswa left before the meeting ended. What transpired in the car park cannot by any stretch of imagination be imputed to him. There is nothing on record to show that he knew that his colleagues had remained to discuss the payment of any alleged “facilitation fee” and as such should be fully exculpated.
7. Part VII: Observations of the Committee
The Committee was mindful that the inquiry was not of a criminal nature where the burden of proof is beyond any reasonable doubt. The task of the Committee was to decide whether a case had been established on a preponderance of probabilities. On a conspectus of the evidence adduced, the Committee made the following observations –
7.1. The Committee noted some inconsistencies in both written and oral submissions. Messrs. Goddard and Steyn advised that their affidavits were only a summary of events that took place and that they would give more detail in oral evidence in amplification to their affidavits. Mr. Tundiya, however, changed evidencein his oral testimony.
7.2. From the submissions of Messrs. Goddard and Tundiya, the Committee observed that it was clear that they travelled all the way from Shangani, in the belief that they would meet Honourable Members of the Portfolio Committee on Mines and Mining Development to discuss the Hwange Colliery mining proposal. They indicated that it was important for them to meet the Committee on that day since the Committee was travelling to Hwange Colliery the following day. This was confirmed by Mr. Goddard when he requested his Mining Director to join him from Selous on his way to meet the Hon. Members of the Committee on Mines and Mining Development in Harare. The meeting took place at night in Mr. Goddard’s Borrowdale Office and the issue of Hwange Colliery mining contract was discussed. Indeed, the Committee travelled to Hwange Colliery and this evidence was not contested.
7.3. During the meeting of 15 of November 2018, Mr. Goddard stated that Hon. Mliswa intimated that His Excellency, the President, was supportive of joint ventures between the private sector and parastatals. Again, this was not challenged by any of the Hon. Members. In this case, he was trying to emphasize the point that it was in that spirit that Mr. Goddard’s company needed to enter into a joint venture with Hwange Colliery. Hon. Mliswa also indicated that Mr. Goddard would need to approach the Minister of Justice, Legal and Parliamentary Affairs to finalize the matter since Hwange Colliery was under reconstruction. The Committee found that all the witnesses were in agreement that the issue of the alleged bribe or a facilitation fee did not arise during the discussion that took place in Mr. Goddard’s office.
7.4 Prior to the meeting at Mr. Goddard’s Offices, three Honourable Members namely, Hon. Sibanda, Hon. Ndebele and Hon. Chikomba met Mr. Tundiya at Bronte Hotel. In his affidavit, Mr. Tundiya indicated that that the three Honourable Members requested to meet Mr. Goddard, Hon. Mliswa was not present at the Bronte Hotel meeting, but only joined them in the subsequent meeting at Mr. Goddard’s Borrowdale offices.
7.5. Mr. Goddard stated that as soon as Hon. Mliswa arrived, he proceeded to Chair the meeting and distributed his business cards which showed that he was the Chairperson of the Mines and Mining Development Committee.
7.6. The Honourable Members did not explain why they ended up discussing the proposal for mining at Hwange Colliery by Mr. Goddard’s company instead of discussing the debt when they got to Mr. Goddard’s office. Two Members, Hon. Ndebele and Hon. Sibanda initially submitted that the debt was discussed in Mr. Goddard’s office but later clarified their submissions in line with what was submitted by other witnesses. The submissions confirmed that the issue of the debt was discussed after Hon. Mliswa had departed and outside Mr. Goddard’s office.
7.7. While three of the Honourable members, namely, Hon. Chikomba, Hon.Ndebele, and Hon.Sibanda indicated that the main purpose of the meeting was in pursuit of the debt owed to Hon. Chikomba, the Committee finds the explanation disingenuous as the issue was never discussed in Mr. Goddard’s office. During the enquiry, Hon. Mliswa indicated he was unaware of the debt in question as well as the agenda of the meeting.
7.8. There was lack of clarity on the exact amount owed by Mr. Tundiya to Hon. Chikomba as different figures were mentioned during the course of the inquiry. Mr. Tundiya himself accepted that he owed the money when he testified. Mr. Goddard who was supposed to pay on behalf of Mr. Tundiya, professed ignorance about it and stated that he only became aware of the issue during the enquiry.
7.9. There was conflicting information about what was owed to Hon. Chikomba. Whereas Hon. Chikomba stated that the amount was USD 2100, Mr. Tundiya said that he owed USD 1600. In response to a question why USD 2100 had risen to $400 000 Hon. Chikomba characterized it as a casual comment. The Committee also noted that some of the evidence by Mr. Tundiya relating to the alleged sharing of the money by Honourable Members was not in his affidavit and in light of other contradictions in his submissions, the Committee observed that it was unsafe to accept this evidence as incriminating the Honourable members.
7.10. The conduct of the Honourable Members in meeting with Messrs Tundiya, Goddard and Steyn at night in Borrowdale outside the normal Parliamentary decorum created a negative impression about their intentions and adherence to the Code of Conduct of Parliament, however in an inquiry of this nature, it is important for the evidence against them to be clear, unambiguous and convincing.
7.11. Mr. Goddard conceded that he was not very conversant with the Shona language and he had to rely on Mr. Steyn who had a better understanding of the language. He could not independently follow the entire conversation in the car park between Mr. Tundiya and Hon. Chikomba. Consequently, he had difficulties explaining precisely what transpired both in his evidence and under cross examination.
7.12. It was noted that Mr. Goddard indicated that he had hearing problems. His evidence clearly exonerated Hon. Mliswa and Hon. Ndebele. While his submission is in conflict with Hon. Chikomba’s submission, it was also not clear what role Hon. Sibanda is alleged to have played.
7.13. The Committee notes that Mr. Tundiya subsequently clarified his earlier submission as contained in his affidavit and oral evidence and categorically stated that no issue of an alleged facilitation fee or bribe was ever raised. In his clarification he stated that the alleged request by Hon. Chikomba was for a loan.
7.14. Mr. Tundiya was not clear on the figures involved and the Committee was not impressed with him as a witness. He clearly failed to indicate in any way how any of the Honourable members could be implicated in having tried to solicit for the alleged bribe or facilitation fee. In fact, his evidence was to exonerate them on this aspect. His departure from the contents of his affidavit is fatal to the allegations against the four Honourable Members.
7.15. Regarding the alleged solicitation of a bribe, Mr. Tundiya denied during oral evidence that anything of that sort ever happened. The fact that Mr. Goddard indicated that he had some hearing problems and was not conversant with the Shona language, entails that his evidence could not be relied upon.
7.16. The Committee concluded that the evidence by both Mr. Goddard the complainant and Mr. Tundiya, a key and material witness, clearly exonerated Hon. Mliswa and Hon. Ndebele on the allegation of solicitation of bribe. Members of the Committee noted that the role of Hon. Sibanda in the alleged solicitation of the bribe was unclear as Messrs Tundiya, Goddard and Steyn could not proffer any precise, cogent and plausible explanation and information on his contribution to the allegation.
7.17. There is also a possibility that Hon. Chikomba submitted account details through which his debt could be settled. Mr. Tundiya’s character had been called into question and there was a possibility that he was attempting to set up the Honourable Members and the Goddard Team. His intention was not only to benefit from the high production of coal at Hwange but also from Mr. Goddard after facilitating his meeting with the Members of the Mines Committee.
7.18. In view of the foregoing, the Committee observed that at the time the four Hon Members attended the meeting, the Committee on Mines was deliberating Hwange Colliery Company in its oversight capacity. Thus, in discussing Hwange Colliery Company, they were in violation of Rule 16(2) of Appendix A of the Standing Orders. The Committee however noted that the terms of reference of the Committee did not empower the Committee to address the other ancillary and incidental issues beyond the allegation of solicitation of bribe.
7.19. The Committee also observed that Appendix A Rule 16(2) of the Standing Orders states that;
“For the purposes of this rule ‘publication’ includes the taking of extracts from, making copies of, any transcript sent to a witness for correction, in the imparting of the contents of such transcription and the imparting of any information concerning the deliberations of the Committee”.
8. Part VIII: Findings
In the light of the foregoing, terms of reference and after a thorough and exhaustive evaluation of the evidence presented, the Committee made the following findings-
8.1. THAT the evidence submitted to the Committee was insufficient to establish that the Honourable Members of Parliament Hon. T. Mliswa and Hon. A. Ndebele, Hon. L. Chikomba and Hon. P.D. Sibanda solicited for a bribe. Consequently, the Committee concluded that there was no breach of privilege or contempt of Parliament.
8.2. THAT the conduct by the four Honourable Members of convening a meeting with the Goddard Team (Messrs. Goddard, Tundiya and Steyn) outside the parameters of official Committee business at night and by further engaging in a discussion on a matter that was before the Committee (mining contract at Hwange) created an impression of impropriety, but does not constitute a breach of privilege amounting to contempt of Parliament.
9. Part IX: Recommendations
9.1. The Committee recommends that the four Honourable Members of Parliament, namely Hon. T. Mliswa and Hon. A. Ndebele, Hon. L. Chikomba and Hon. P.D. Sibanda be cleared on the charge of soliciting for a bribe due to lack of sufficient evidence:-
9.2. Further, the Committee is of the view that the conduct of the four Honourable Members of Parliament does not constitute a breach of privilege amounting to contempt of Parliament.
9.3. However, the Committee, is of the view that measures should be undertaken to ensure Members of Parliament are not involved in activities which are inconsistent with Parliamentary decorum, and as a deterrence measure the Committee do hereby recommend the following;
9.3.1 That the four Members should be prohibited from sitting in the Portfolio Committee on Mines and Mining Development for the rest of the 9th Parliament.
9.3.2. The four Members should prepare and deliver a statement of apology to Parliament.
9.3.3. That a one sitting’s allowance be withheld – [HON. MEMBERS: Inaudible interjections] –
9.4. There should be continuous reminders at various platforms to Honourable Members of their pre-eminent role as the defenders of the Constitution and the Code of Conduct of Parliamentarians and therefore, display zero tolerance towards corruption.
Madam Speaker, let me end by thanking Members of this Committee, staff of Parliament and all of you for the least interjections during my presentation. I also advise that in terms of procedure, once we have submitted, we then adjourn the debate until the four accused Members have studied the report and then they come back and respond and debate. Thereafter, the rest can then debate