Criminal
Trial
BHUNU
J:
The
accused is the Minister of Energy and Power Development. In the main
count he is charged with criminal abuse of duty as a public officer
in contravention of s174(10(a) as read with s174(2) of the Criminal
Law Codification and Reform Act [Cap 9:23].
He
is alleged during the period extending from the beginning of January
2011 to 12 January 2011 to have intentionally directed the Acting
Chief Executive officer of Petrotrade, one Griefshaw Revanewako to
purchase five million litres of diesel from a South African company
known as Nooa Petroleum (Pty) Ltd for the purpose of showing favour
to Nooa Petroleum (Pty) Ltd.
In
the alternative and arising from the same facts he is alleged to have
unlawfully instructed Griefshaw Revanewako the said Acting Chief
Executive Officer of Petrotrade to purchase the five million litres
of diesel from Nooa Petroleum (Pty) Ltd without going to tender in
contravention of Section 30 of the Procurement Act [Cap 22:14] as
read with sections 5(4)(a)(ii) and section 35 of the procurement
regulations [S.I. 171 of 2002].
The
facts giving rise to both charges are to a large extent common cause.
The
undisputed facts are that during the period under review the accused
was the Minister of Energy and Power Development. In that capacity he
was responsible for overseeing the procurement of fuel in terms of
the Procurement Act and Regulations. The procurement of petroleum
products was done through the National Oil Company of Zimbabwe
(NOCZIM) which in turn had Petrotrade as its special purpose vehicle
for the importation of fuel.
Petrotrade
was however, not a recognized registered lawful procurement entity at
the material time.
In
the normal run of things and all things being equal s(30)(1) of the
Procurement Act and regulations prohibits and criminalizes any
purchase of commodities in excess of fifty thousand dollars without
going to tender.
Subsection
(2) of the same section however, permits the procurement of
commodities in excess of the specified amounts without going to
tender provided the procuring entity justifies in writing the need to
purchase such commodities including fuel without going to tender. The
section reads:
“30
Form of procurement proceedings
(1)
Except as otherwise provided in this Act, the procurement of -
(a)
Goods or construction work by a procuring entity shall be done by
means of tendering proceedings in accordance with section thirty one;
(b)
Services by a procuring entity shall be done by a method which
complies with section thirty-two.
(2)
Where in accordance with this Act a procuring entity adopts a method
of procurement other than one specified in subsection (1), the
procuring entity shall include in the record of its proceedings a
statement of the grounds and circumstances on which it relied to
justify the adoption of that method”.
It
is clear from the provisions of s30 of the Act that there are two
lawful ways of procuring fuel in terms of the Procurement Act.
(i)
The first mode of procurement is by going to tender in terms of
subsection one.
(ii)
The second mode is by purchasing fuel without going to tender in
terms of subsection two.
I
now turn to apply the law to the facts of this case.
It
is common cause and a matter of established fact that during the
period in question there was an acute shortage of fuel in the
country.
All
the state witnesses comprising Justine Mupamhanga, the permanent
secretary in the ministry of Energy and power development, Morgan
Mudzinganyama, the director petroleum in the ministry, Griefshaw
Revanewako, the Acting Chief Executive of Petrotrade, Sikwila Tanaka,
the financial manager at NOCZIM and Charles Kawaza, the Chairman of
the state procurement Board all gave incontrovertible evidence to the
effect that at the material time the country was experiencing a
critical shortage of diesel.
The
accused in his defence outline stated that none of their traditional
suppliers of fuel had any diesel for sale. The permanent secretary
confirmed the accused's defence to that effect.
Under
cross-examination he was asked:
“Q.
Now Mr. Mupamhanga in your statement you accept that on or about 11th
January 2011 there was a fuel crisis in the fuel sector in the
country?
A.
That is correct.
Q.
How did that crisis come about.
A.
That resulted from the difficulties at Beira which led to ships
bringing fuel not being able to dock. A major reason however was that
there was no fuel from our traditional suppliers.”
The
admitted critical shortage of fuel on the market prompted the accused
in his capacity as Minister of Energy and Power Development to write
a letter exhibit one on 12 January 2011 authorizing the Acting Chief
executive Petrotrade to purchase fuel without going to tender in a
bid to salvage the situation. The letter reads:
“Attention
Eng. G Revanewako
AUTHORITY
TO PURCHASE 5 MILLION LITRES GASOIL EX-TANK MATOLA FROM NOOA
PETROLEUM WITHOUT GOING TO TENDER
Having
assessed the fuel supply constrains the country is facing, I
authorize that you procure 5 million litres of diesel, being the only
fuel available from Nooa Petroleum in Matola at $0.88 per litre
landed in Harare. The product should be shipped to cover Masvingo,
Midlands and Matabeleland Provinces which are more affected by the
shortage of fuel. Part of the fuel should be swapped with fuel in the
pipeline that is owned by oil companies on a litre for litre basis.
This will facilitate quick release of product to these companies
while at the same time speeding the availability of fuel on the
market.
You
are required to quickly implement these arrangements.
Signed
E S. Mangoma
(MP)
MINISTRY OF ENERGY AND POWER DEVELOPMENT.”
Virtually
all the state witnesses confirmed without exception that there was no
fuel available from their traditional suppliers at the material time.
Whether
or not the accused's conduct in writing the above letter or
directive amounts to a criminal offence in the circumstances of this
case depends on the interpretation of s30(2) of the Procurement Act.
Mr.
Kuwaza as I have already pointed out is the Executive Chairman of the
State Procurement Board.
In
his evidence in chief he gave a comprehensive outline of his duties
in this respect. His duties among others are to administer The
Procurement Act. In that respect he is responsible for investigating
and taking appropriate action against irregular procurement of goods
and services for the state in breach of the normal rules and
regulations.
The
witness gave a detailed explanation of the cumbersome procurement
procedures by tender.
It
was his testimony that if purchases are to be done through the normal
tender procedures it takes no less than 30 days just to float the
tender and further delays can be incurred through a system of appeals
where one or more bidders are aggrieved by any particular award.
Before
dollarisation NOCZIM was experiencing problems in sourcing foreign
currency for the procurement of fuel. As a result in 2004 in a bid to
avoid the inevitable delays occasioned by the cumbersome tender
procedures and scarcity of foreign currency it solicited for and was
granted permission to procure fuel urgently without going through the
normal tender procedures provided it submitted to the State
Procurement Board a write up justifying the need to procure fuel
without going through the normal tender procedures.
As
a result NOCZIM was required to gazette an approved list of reputable
foreign fuel suppliers from which it could purchase fuel without
going through normal tender procedures.
The
list was however not cast in stone as NOCZIM was free to update the
list from time to time according to the prevailing circumstances.
NOCZIM
did not however, strictly adhere to this directive and would from
time to time procure fuel from suppliers not on the approved gazetted
list.
It
is plain that the dispensation granted to NOCZIM by the State
procurement Board way back in 2004 accords with the provisions of
s30(2) of the Procurement Act.
It
is clear that s30(2) of the Procurement Act was meant to provide a
safety valve to enable state procurement entities to procure
commodities expeditiously for the benefit of the state and the nation
at large in times of dire need and emergences without following the
cumbersome time consuming normal tender procedures.
Whereas
subsection one provides for the general rule prohibiting procurement
without going to tender, subsection two provides for the exception
which permits procurement without going to tender for good cause
shown in writing.
The
adage that for every general rule there is an exception is therefore
apt.
In
crafting subsection two the legislator had undoubtedly foreseen the
cropping up of circumstances which may require the urgent purchasing
of commodities without going to tender for the common good.
The
accused appears to have fallen into trouble because he persisted in
buying the fuel from Nooa Petroleum against the advice of his
subordinates. This was compounded by the fact that Nooa Petroleum
ended up rendering defective service through its agent Mowhelere.
The
mere fact that Nooa Petroleum through Mowhelere may have rendered
defective service cannot however, without more amount to criminal
conduct on the part of the accused.
The
advice given to the accused by his permanent secretary and Director
Petroleum to the effect that any purchases of fuel had to be done
through the normal tender procedures was incorrect and bad at law.
Both
the accused and Mr. Kawaza the Executive Chairman of the procurement
board were however, aware of the provisions of section 30(2) of the
procurement Act. They were therefore aware of the correct legal
position.
It
is amazing that both the permanent secretary who is responsible for
overseeing the procurement of fuel and the Acting Chief Executive
officer Petrotrade responsible for procurement of fuel were ignorant
of this vital provision of the law meant to facilitate the
procurement of fuel in times of emergency and dire need.
Upon
being confronted with the provisions of section 30(2) of the
Procurement Act everyone concerned had no option but to confess in
open Court that it was not per see unlawful to procure fuel without
going to tender.
Thus
In ordering the Acting Chief Executive Officer Petrotrade to procure
5 million litres of Diesel from Nooa Petroleum without going to
tender the accused was simply directing the officer to procure the
diesel in terms of s30(2) of the procurement Act.
Once
the Acting Chief Executive officer had been directed by the accused
to procure fuel without going to tender it was incumbent upon him to
provide the necessary write up to justify the procurement in terms of
s30(2) of the Act.
If
any fault is to be found at all regarding the procurement of the fuel
in question the blame must be laid squarely at the door of the
procurement entity for its failure to provide the necessary write up
according to law.
This
explains the chairman of the state Procurement Board Mr. Kuwaza's
attitude when he said that apart from what he read in the newspapers
he was not aware of any offence that the accused had committed.
He
was of course correct in this respect.
Having
regard to the provisions of s30(2) of the Act no reasonable Court in
my view would come to the conclusion that by merely directing the
Acting Chief Executive officer to purchase fuel without going to
tender the accused was guilty of any criminal conduct.
Whether
or not the accused was abusing his office as a public official when
he directed his subordinate to buy fuel from Nooa Petroleum is
determined by the motive and surrounding circumstances behind the
order.
It
is common cause that when the accused issued the directive it was in
times of extreme emergency. Strategic fuel reserves were down to less
than a day's supply and there was no fuel from traditional
suppliers. Queues were beginning to form at fuel outlets.
The
situation called for extraordinary measures to avert the emergency.
The
accused's motive was clearly to avert the situation which
threatened the country with extreme shortage of fuel.
It
is difficult to blame the accused for directing the purchase of fuel
from Nooa Petroleum when it was the only supplier with fuel at that
time.
There
is also no logic in suggesting that the fuel was purchased at an
exorbitant price in circumstances where there was only one supplier.
In any case the evidence quite clearly establishes that no one was
able to establish if fuel could be found at a cheaper price elsewhere
on that day for the simple reason that there was no fuel on offer
apart from Nooa Petroleum.
In
the final analysis having regard to the surrounding circumstances and
the motive for the directive it cannot by any stretch of the
imagination be suggested that the directive was meant to extend any
favour to Nooa Petroleum.
In
any case, the state was unable to lead any evidence tending to show
that the motive for the directive was other than to avert the
emergency staring the nation in the face at the material time.
For
the foregoing reasons we were of the unanimous view that on the
evidence presented before us, the state has failed at the close of
its case to establish a prima facie case upon which a reasonable
court acting carefully might convict the accused on either count.
That
being the case the Court has no option but to discharge the accused
at the closure of the state case.
The
accused is accordingly found not guilty and acquitted on both counts
at the closure of the state case.
The
Attorney General's Office, the State's legal Practitioners
Mtetwa
& Nyambirai, the defendant's legal practitioners
