Analysts have called for the amendment of the National Aids Council of Zimbabwe Act which empowers the National Aids Council to use funds in other areas other than purchasing medication. This followed a demonstration by HIV positive people on Wednesday last week against NAC, accusing the council of misusing funds following the shortage of ARVs in public institutions.
Law experts said the Act should be amended to be in line with current demands and expectations. Signed into law in 1999, the Act led to the introduction of the now contentious National Aids Trust Fund being referred to as the Aids Levy.
The fund was to provide financial support for key HIV and Aids interventions, establish and fund the NAC secretariat and to complement external funding of HIV interventions.
Section 14 (14-5) of the Finance Act provides for the collection of the Aids levy on individuals, companies and trusts at a rate of three percent of the amount of income tax assessed.
For individuals, the tax is levied on the income tax assessed after deducting any credits accruing to the individual pay-as-you-earn tax.
The demonstrators on Wednesday were irked by the 2011 report by the Comptroller and Auditor-General on the management of HIV care and treatment programme.
The report revealed that funds set aside for anti-retroviral drugs procurement in 2010 was diverted to what officials deemed more critical areas and yet there was a critical shortage of ARVs.
They also complained that the NAC secretariat was "misusing" the funds by concentrating on non-core activities like investing the funds on the money market.
But Section 26 of the Act states that: "Moneys not immediately required by Council may be invested in such a manner as the Minister, acting on the advice of the Minister responsible for finance, may approve."
Human rights lawyer Mr David Hofisi said the Act could have been trying to protect idle funds from depreciation.
"It is envisaged that invested funds would attract interest that would act as a buffer to the funds in case of devaluation," he said.
In line with the legal provisions, in 2009, NAC invested about US$300 000, while US$6,7 million was invested in 2010. Last year, US$4,4 million of the Aids levy was put in short term investments.
The demonstrators complained that NAC was not following policy guidelines that stipulate that 50 percent of the collected revenue should be used for ARV drugs procurement.
The under-utilisation of allocated funds for ARV procurement particularly irked people living with HIV and Aids because of the continued shortages of drugs that has exposed them to risk of drug resistance.
This was also revealed by the Comptroller Auditor-General's report which stated:
"In 2009, an amount of US$3 672 352 was received and only US$1 553 055 was used for acquiring ART commodities. This expenditure represented 42 percent of the Aids levy collected, instead of the required 50 percent as per NAC policy on Aids levy expenditure."
The demonstrators accused NAC secretariat of extending loans to themselves using the Aids levy, but this is supported by the Act's Section 4 (15) which, reads: "To make loans or guarantee loans made to its members of staff or their spouses for the acquisition of dwelling houses or land or rights therein . . . to make loans to any member of the Council's staff for the purpose of purchasing vehicles, tools or other equipment."
The Act further states that the board has authority: "to pay such remuneration and allowances and grant such leave of absence and, with the approval of the Minister, to make such gifts, bonuses and the like to its members of staff as the Board considers fit."
Mr Hofisi said this provision is ambiguous and could open the funds for abuse. He said it left grey areas on how much funds were permissible or not to be parcelled out "to make such gifts, bonuses and the like".
According to documents seen by this paper, NAC engaged a local human resources consultant, ProServe almost a year-and-a-half ago who made critical recommendations that until now are yet to be implemented.
ProServe recommended that the positions of directors of communications, human resources, monitoring and evaluation, risk and audit should be downgraded to heads of departments.
According to the recommendations, only the directors of operations and finance should retain their titles.
The downgraded directors had to take a pay cut, a recommendation ProServe said would reduce pressure on the Aids levy and should be acceptable.
The previous board failed to implement this recommendation and the new board is yet to do so.
Mr Sebastian Chinhaire from the Zimbabwe National Network of People Living with HIV and Aids said amendments to the NAC Act would ensure the Aids levy was used for its intended purpose.