Parirenyatwa scandal: The futility of fighting Corruption

By: 
Alex Magaisa

A COUPLE of weeks ago, Zimbabwean media reported on a scandal involving Dr David Parirenyatwa, who is the country’s Minister of Health. The reports indicated that sometime in May 2014, Parirenyatwa had received a payment of $US100,000 from the Public Service Medical Aid Society (PSMAS), a struggling medical insurance provider whose membership consists primarily of employees of the State. As Minister of Health, Parirenyatwa’s mandate covers PSMAS. This close relationship and the circumstances around the payment have brought the propriety of the Minister’s conduct into question.

The allegations are that PSMAS made a gross overpayment of $US77,000 to the private account of the Minister’s company, called CHEST. It owed him $US23,000 in fees for medical services rendered to its members. He says he was owed $55,000, but whatever the correct figure might be, clearly, the $100,000 from PSMAS was a gross overpayment.

In his defence, Parirenyatwa has described the gross overpayment as “capitation” which, he says, is a “common norm” in the insurance field where an insurer pays more in advance to a service provider, which figure would be set-off by future claims.

This a strange and disagreeable phenomenon, fraught with serious moral hazard. But whatever the correctness of this so-called “capitation”, it is certainly odd, not least because PSMAS has been failing to pay other service providers, among them fellow peers of Parirenyatwa in the medical profession. Its arrears have been estimated at $US140 million. Obvious questions follow: How does PSMAS manage to overpay one service provider, who happens to be a Minister, while it is unable to pay other service providers? How could it possibly overpay one creditor, while claiming inability to repay the rest?

It simply doesn’t make sense. No wonder Parirenyatwa’s peers in the medical profession and members of PSMAS are up in arms over this dubious transaction. But the matter also raises important constitutional issues over the conduct of Parirenyatwa as a Minister of Government and I examine these below.

Conflict of Interest

The available facts suggest that Parirenyatwa may have committed two breaches of the Constitution:

  1. Undertaking paid private work while he is a Government Ministe
  2. Violating of the “No Conflicts” Principle

The relevant constitutional provision is in s. 106(2) which states as follows:

106 Conduct of Vice-Presidents, Ministers and Deputy Ministers
(2) Vice-Presidents, Ministers and Deputy Ministers may not, during their tenure of office —
(a) directly or indirectly, hold any other public office or undertake any other paid work;
(b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
(c) use their position, or any information entrusted to them, to enrich themselves or improperly benefit any other person.

Undertaking Paid Work

106(2)(a) prohibits a Minister from directly or indirectly undertaking any paid work while holding public office. The reason Ministers are prohibited from undertaking any other paid work is because they are supposed to dedicate their time to public office, rather than concentrate on private work. Second, in making a choice between public office and private work, a Minister might end up prioritising private work, which might be more lucrative. Third, the Minister might end up using public office, assets and opportunities to promote private engagements. The idea is that if a person accepts public office, then he must, at least for that duration, suspend private employment.

This does not mean Ministers are banned form carrying on business enterprises. Such a blanket ban would dissuade people in business from serving in public office, when their skills might be required. Becoming a Minister does not mean one must divest from his or her business interests. However, he must ensure that his private business does not conflict with his public role as a Minister. Any appearance that a Minister is using public office to promote or favour his private business interests would undermine and violate the letter and spirit of this prohibition.

The question here is whether Parirenyatwa was undertaking paid work as a medical doctor at a time when he is also Government Minister, and whether this is appropriate. If the answer is in the affirmative, then he would be in breach of s. 106(2)(a) of the Constitution. Some might say it is unreasonable to prevent Parirenyatwa from practising and delivering health services in a country that has a severe shortage of medical staff. Still, that would not be an excuse and even more, it would not justify the gross over-payment and preferential treatment, which might be explained by the fact of his public office.

No Conflicts Rule

The rule also prohibits them from “act[ing] in any way that is inconsistent with their office, or expos[ing] themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

The basis of this duty is the principle of good faith. A Minister, like a director of a company, is regarded as a person who is in a position of trust which must not be abused. He is, therefore, expected to act in good faith, upholding the public interest which his office commends him to serve. The rule in s. 106(2) prohibits a Minister from acting in a way that is inconsistent with his office or exposing himself to any situation that would involve the risk of a conflict between his official role and his private interests.

The No Conflicts principle is very broad, covering, as it does situations in which the Minister potentially or actually benefits from a conflict situation. In this regard, a Minister cannot plead in defence that he did not actually benefit, because the provision is broad enough to cover situations where he merely exposes himself to a conflict of interest. Taking a cue from the field of company law, any situation that gives rise to a conflict of interest is generally treated as a conflict of interest. Any situation which is likely to lead to a breach of duty of good faith should naturally be treated as if the breach had occurred.

The Parirenyatwa case is a classic case where the Minister placed himself in a situation that exposed him to a conflict of interest. He is the Health Minister with some responsibility over PSMAS, the organization which made an improper and gross overpayment to him. PSMAS gave him preferential treatment over other doctors, who also look up to him as their responsible Minister.  The gross over-payment and preferential treatment towards the Minister cannot reasonably be justified.

Conclusion

In conclusion, this is a typical case for which the constitutional provision was enacted. Did Parirenyatwa breach the Constitution? Very likely and at the very least there should be an investigation into circumstances around the gross overpayment and preferential treatment. In other countries where the media and public have sufficient consciousness and take civic responsibility seriously, Parirenyatwa would have been forced to resign a long time ago. In countries where heads of Government take responsibility seriously, Parirenyatwa would have been asked to step down and allow an investigation.

But not in Zimbabwe, where corruption has become institutionalized over the years. In a recent survey by Afrobarometer, 20% of Zimbabweans thought it was pointless to report corruption as nothing would be done while 25% said they were afraid of the consequences of reporting, and 14% thought corruption was the norm. It is because of cases as brazen as Parirenyatwa’s where they see blatant conflicts of interest and can smell the stink of corruption but see nothing being done that they realise the futility of reporting corruption.
waMagaisa

This article was originally published on Magaisa’s blog alexmagaisa.com. Alex can be reached at wamagaisa@yahoo.co.uk

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