The Sunday Mail
Zimbabwean football is currently enmeshed in another match-fixing scandal.
lt is therefore prudent for me to try and dissect the legal issues that may be at play.
I begin by putting the branches of the law that may be applicable into perspective.
Law is divided into numerous divisions.
In this discussion, I focus my legal lenses on only two aspects. These are the general law and the common law.
General law resides in statute books such as the Labour Act, the Marriages Act, the Companies Act, the Road Traffic Act and so on. It also encompasses by-laws that are enacted by certain authorised persons and bodies such as Government ministers and local authorities.
On the other hand, common law is not contained in any Acts of Parliament such as those that I have referred to. Such laws are made and developed by judges, the courts and tribunals of that ilk in the course of making judgments.
Sometimes the writings of certain persons that are generally considered as law gurus are also considered as part of common law.
Here I might refer to persons such as Professors Welshman Ncube, Geoffe Feltoe and Lovemore Madhuku, among others, all of whom hail from the University of Zimbabwe.
Internationally, Professors A Kerr (now late) and C J Botha quickly come to mind, both of whom are associated with the Rhodes University in South Africa.
Note, however, that the fact that the common law is not made by Parliament does not make it any less law. It is as much law as that which is promulgated by the President through Parliament.
In as far as the criminal law is concerned, offences such as murder, rape, fraud, theft, assault, bribery and others used to be common law offences. They were, however, transformed into the general law upon the coming into being of the Criminal Law (Codification and Reform Act), “the Code” in 2004.
So as things now stand in our country, all criminal offences are contained in the Code and other Acts of Parliament. The critical question that arises is whether the Government draftsmen managed to gather all the possible offences when the Code was enacted? I shall revert to this issue later.
In civil law, the common law is still very much alive. In fact, it is difficult to fathom a day when it may be said that our civil law is also being codified. This is because the civil law is too wide to be codified.
If you look at the law of damages arising from whatever cause, you will see that it is a branch of the common law. Further, a great many aspects of our law of contract have common law colours.
The law of property and the commercial law all owe their very existence to the common law. Lawyers and judges in the course of handling and deciding cases rely heavily on the writings of the said gurus or authorities and judgements handed down in the past.
In my view, the common law shall always remain part and parcel of our law.
I have already said that our criminal law was codified. This means that upon arrest, the police are obliged to charge the suspect with an offence that is in the Code. If the offence they choose is not in the Code, then it has to be in a certain Act of Parliament also called a statute.
They cannot look elsewhere for the offence or charge, it is either the Code or some other statute and nothing else. In effect, what the codification of our criminal law did was to sort of curtail, if you want, the police’s discretion upon arresting a suspect. In my view, codification took away the elasticity that was inherent in the common law.
In a criminal trial, in order for prosecution to secure a conviction for the accused person, it has to prove its case beyond a reasonable doubt. In order to do that, it is essential for the court to determine the intention of the accused when he or she allegedly committed the offence in question.
The one aspect that is key and is looked into, among others, is “the state of mind” or depending on the circumstances, the absence of a “state of mind” of the suspect when he or she committed the alleged offence.
“State of mind” refers to what was going on in the mind of the accused at the material time. The question is “did the accused person consciously set out to commit the offence?” If the evidence gathered points to this fact then the accused is bound to be convicted if he or she fails to rebut that evidence.
On the other hand, “absence of a state of mind” refers to those offences that involve negligence. For instance, if you drive your motor vehicle recklessly and you cause harm to innocent third parties, it follows, by logical reasoning, that you would not have properly exercised your mind in the time period immediately before the accident occurred in order to have avoided the consequences that then resulted. It might be said that having realised or failed to realise that certain conduct is bound to cause harm to others, that is an omission or the absence of a certain state of mind for which the accused person may be convicted.
This then takes me to the current debate involving the match manipulation or “match fixing” scandal that is currently rocking the body politic of our football.
In my view, the question that must find an answer is whether the persons implicated committed any criminal offences in as far as our law is concerned.
It would appear that Section 170 of the Code that deals with bribery might have been infringed by the persons fingered in this saga. It is, however, another matter altogether if charges under that section will stick if tested in a court of law.
The reason is that the wording of the said Section 170 is couched in general terms so that it may be difficult at the end of it all to prove beyond any reasonable doubt that the accused persons had the requisite states of mind when they allegedly committed the offences.
Other than that, there appears to be no other law that might have been infracted.
Section 136 of the Code deals with fraud but even if a primary school kid was to read it, they would tell you that it does not apply to the situation at hand. Surely it would be difficult to prove that when a certain player scored a certain “suspicious goal” or conceded a “suspicious penalty”, he had the requisite “state of mind”.
There has to be other solid independent evidence to corroborate that conduct. The so-called evidence aliunde. In addition, the Betting and Totalizator Act (Chapter 10:02), where one would have thought to find something relating to what our football is currently going through, has nothing that forbids or criminalises match manipulation.
But does this mean that the culprits can, therefore, get away with it? Not at all.
This is because according to football statutes, they can be charged but the sanctions that may be imposed are not as stern as what a criminal court sitting to adjudicate the same matter would impose. The worst that can befall the persons implicated is a worldwide ban from participating in any football-related activities. In my book, that would be a mere caress on the wrist and, therefore, not deterrent at all.
As a way forward, there is need for the responsible minister to move with alacrity and ensure that appropriate legislation is put in place as soon as possible.
That law should encompass doping and other such like infractions that sporting personalities can commit in an effort to gain an unfair advantage over their opponents. This will discourage cheating in all sporting disciplines in the country.
By enacting such legislation, Zimbabwe will not be inventing the wheel for the second time because such laws are already in existence in other countries.
For instance, in South Africa, corruption in sport is covered by Section 15 of that country’s Prevention and Combating of Corrupt Activities Act of 2004.
It therefore beats me why and how the authorities here did not take any action to enact the relevant law, particularly after the Asiagate scandal not so long ago.
Now, even if such a law was to be put in place today, those fingered in the latest Zifa saga involving the so-called Swazigate or Limpopogate will not be touched as the law will only apply in the future, it cannot cover historical misdeeds owing to the general presumption against legislating retroactively.
It is said that the law has no capacity to hear and see what occurred in the past. Otherwise, such a law will prosecute perpetrators like what happened with the infamous Mr Wilson Raj Perumal of Singapore.
Tichawana Nyahuma is a legal practitioner who writes in his personal capacity. For feedback: [email protected]
