Mawere case: Hijacking state apparatus for personal gain?

I would rather let myself be drawn and quartered. . . ” That was how Vladimir IIyich Lenin, the Russian Marxist revolutionary and communist politician who led the October Revolution of 1917, put his position on collaborating in a bourgeois or petty-bourgeois periodical of an anti-Marxist or simply non-Marxist nature.

His defence of this position lies wholly in the mainstream of Lenin’s polemic against the bourgeois press.

The ideological incompatibility of Marxist and bourgeois ideology is the prime and paramount condition which Lenin adduces to justify his position. The words cited in the first quotation continue as follows: “. . . than consent to collaborate in an organ or body that preaches such things”.

His major reason for refusing to collaborate in such an organ is its ideological stance, which is either inimical to Marxism or simply non-Marxist, advocating views incompatible to Marxism.

This brings me to the issue of Mutumwa Dziva Mawere, one of the finest businessman Zimbabwe has ever produced but was until last Thursday in a club of state-condemned businessmen who fled into exile in 2004.

Others in this club and still at large are former Intermarket Holdings boss Nicholas Vingirai, Barbican Holdings’ Mthuli Ncube, Telecel shareholder James Makamba and NMB Holdings founder Julius Makoni.

Surprisingly, last Thursday Harare provincial magistrate Mishrod Guvamombe cancelled the warrant of arrest on Mawere at the behest of the police after the Attorney-General (AG) Johannes Tomana declined to prosecute him.

He is now a free man, six years after the police launched a manhunt for him on allegations of externalisation.

Mawere was arrested in May 2004, on charges that he was responsible for the non-remittance of $18, 5 million, CAD$628 000, and R4,5 million by his flagship firm, Shabani Mashaba Mines (SMM).

Using this warrant, an application for his extradition was then made in South Africa. The application was dismissed in June 2004.

Notwithstanding, nine days after the case was dismissed, Justice minister Patrick Chinamasa, who was also responsible for administering the Prevention of Corruption Act (PCA) issued a specification order against Mawere on the same allegations.

Ironically, last May, the specification order was revoked. However, the warrant issued in 2004 remained in existence.

The police completed their investigations and came to the same conclusion — the allegations were baseless and unfounded.

It is significant that the AG has declined to prosecute. Mawere has evidence from the central bank that also shows no crime was committed, leaving only Chinamasa holding to a view not supported by facts.

The cancellation of the warrant of arrest is in itself an indictment on the part of Chinamasa.

It means the whole conspiracy is laid bare and exposed for all to see how the state can be hijacked and its powers used for personal objectives.

This is the same Chinamasa who is Zanu PF’s chief negotiator in the Global Political Agreement (GPA). Hold on — issues of state need one to be rational, not personal.

If it was abuse of state power, then the responsibility of restoring Mawere’s rights lies with the very people who caused the loss.

Now they can all begin to work together to ensure that the facts are exposed and the people responsible are brought to book.

Although Tomana has refused to prosecute Mawere, in June he was quoted as saying: “Being de-specified does not wash any real wrongdoings which can be proven. De-specification is not like an acquittal.”

Yes, but it is also important to note that Afaras Gwaradzimba, himself a former SMM auditor, is administrator and Edwin Manikai is legal advisor to SMM.

The effect of the specification could have been to legally disable him.

This meant that he was rendered legally helpless while his assets were being plundered.

If one is wrongly accused, why were the charges made without evidence in the first place? The passage of time has and can never change the facts of the matter.

With regards to prejudice, one has to look at the victim’s reputation and property. I find it awkward that lives of thousands of people working for his empire have suffered irreparable damage.

I do not think that the reconstruction of SMM has ever achieved anything yet. It is hoped that when he arrives back home, he will be able to rebuild his empire teetering on the brink of collapse.

Recently, Chinamasa issued an advert saying that Mawere still had a case to answer.

It is significant that the warrant’s cancellation comes after the statement suggesting he is operating outside state institutions he purports to represent.

On what basis would he, other than the AG and police, find the existence of a crime outside institutions charged with enforcing laws? We should interrogate this aspect.

The issue is what should happen to his assets during his specification and who should be accountable for any loss of his assets?

The PCA sets out what can or not be done in respect of assets of the specified person. Section 10 (7) places the obligation of protecting the assets of the specified person on the investigator appointed by the minister.

The SMM matter has its own complexity in that subsequent to the specification of Mawere and his companies, an administrator vested not only with powers of an investigator but powers to deal with the very assets whose dealings the PCA prohibits, was appointed.

The question that arises then is whether the administrator, a creature of the Reconstruction Act, is legally empowered to deal with the assets of a specified person?

The contention by the administrator is that the Reconstruction Act’s primary purpose is to deal with the companies, not the persons that are state-indebted and insolvent.

However, there is no reference in the Reconstruction Act as to what should happen if such targeted companies are the property of a specified person.

To the extent that no such reference is made in the Act, it is my view that the Reconstruction Act and the PCA are two independent statutes and hence the co-existence of the investigator in respect of Mawere’s assets and the administrator.

The administrator, during the specification period, could have failed to comply with the provisions of the PCA, giving rise to the present state of affairs where Mawere’s assets appear to have been dealt with in terms of the Reconstruction Act while he was legally disabled in terms of the PCA.

The legal disablement did not only apply to him personally but to all his companies as confirmed by numerous court judgements handed down, which held that a specified person has no right of audience and cannot represent any other party without permission of the investigator.

This confirms in the court’s mind that Mawere and his companies’ affairs could only have been under the control of the investigator appointed in terms of the PCA and not both the investigator and the administrator.

More importantly, section 10(2) of the PCA is explicit in stating that no person shall deal with assets of a specified person other than in terms of the Act and no other Act.

This being the case, Mawere’s only recourse to recover his assets is through the investigator and I am sure he has already done so.

In terms of section 10(7) of the PCA, all these transactions are void and therefore the investigator is at law compelled to set them aside.

To the extent that the administrator never sought the permission of the investigator, it is important that a thorough investigation be conducted into the dealings of the administrator in respect of Mawere’s assets during the period of his specification, with a view to complying with the provisions of the PCA on whose basis consequential actions were taken.

It is my considered view that if specification imposes sanctions on a specified person and dealing with his property, then despecification must restore such a person’s rights to what they were at the time of specification.

This requires an inventory of the assets at the two points in time. This can only be done by the ministers responsible for administering the PCA to the extent that the administrator is not accountable to both the investigator and the ministers.

Such scrupulous and selective fastidiousness shall remain with me throughout my entire journalistic career.

Feedback:mdzungairi@newsday.co.zw

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