There is a widely held view that Africa’s historical and contemporary condition is primarily a direct consequence of the actions and choices of external parties collectively labelled as imperialists and capitalists.
Zimbabwe is in the final stage of writing a new constitution, but the underlying contestation for political power and hegemony will overshadow the real and fundamental issues that are critical in shaping and defining the character and content of the national democratic revolution.
Why is a constitution important? We often take for granted the fact that a nation state is a consequence of human action and choices.
Unlike other animals, human beings are privileged to have the capacity to create institutions and in so doing permit capacity building and innovation.
In the context of post-colonial Zimbabwe, the Western world responded to the domestic political and economic challenges by imposing controversial targeted sanctions.
At the core of the concern by the Western countries was the manner in which the land reform was constructed and performed.
Concerns were raised about the alleged disregard of the rule of law and respect of property and human rights.
Viewing the issues through the lens of Zimbabwe’s colonial past, the critical importance of a democratic constitutional order underpinned by a political and economic morality that is supportive of human development has been subordinated to the political imperative to transform the inherited property relations.
The narrative on the rule of law and property rights has necessarily tended naturally to take a racial context even though the post-colonial experience has produced its own contradictions in the form of the emergence of a new class of blacks with property.
The interests of this new class are no different from the interests of the settler and colonial class in so far as such interests relate to the need to create an Africa and indeed a Zimbabwe whose governments should operate strictly within the four corners of the law.
In adding my voice to the conversation of what kind of Africa we should have, I have been enriched by my own unique experiences that many of the readers of my articles have asked me to share in a manner that they can understand and draw lessons from.
Accordingly, I believe that it is important to locate the debate about the kind of constitutional order that Zimbabwe should have outside the limitations imposed by the colonial past, but also in the framework of the mistakes and squandered opportunities that the post-colonial order has generated.
I should like to believe that my own story is pregnant with lessons about what not do in the enterprise of nation building.
I set out the facts regarding the control and ownership of the company that I have been associated with in Zimbabwe. The company, SMM Holdings Private Limited (SMM), is the owner of the two asbestos mines located in Mashava and Zvishavane in Zimbabwe as well as the holder of shares in various other companies in Zimbabwe.
SMM was and has always been a wholly owned subsidiary of SMM Holdings Limited (SMMH), a company registered in the United Kingdom.
In March 1996, Africa Resources Limited (ARL) concluded an agreement with T & N Plc (T&N) for the purchase of the shares held by T&N in SMMH and another UK subsidiary company, THZ Holdings Limited (THZH).
So the right, title and interest of T&N in SMMH and THZH passed on to ARL. This then allowed SMMH to change the control of SMM by appointing new directors to the board of the company.
The acquisition of SMM has been a subject of numerous conversations some of which are not informed by facts. Contrary to the perception that the acquisition of SMM was at the Zimbabwean level, the true picture is what was acquired were two English-registered companies that had interests in Zimbabwean companies.
In a democratic constitutional order, a share is a form of property and, therefore, any action that purports to deal with the shares held by a party without their consent is deemed to constitute a violation of the right to property provision in the Constitution.
SMMH was the lawful and rightful holder of the entire issued share capital of SMM at the time, ie September 6 2004, when Honourable Patrick Chinamasa was relying on the regulations he issued pursuant to the promulgation of a presidential decree.
Although it would be naïve to hold the view that in invoking a law that did not exist and which Parliament had not been given an opportunity to debate and approve, the intention of Chinamasa and the faceless and nameless individuals behind the action was merely to reconstruct SMM and not to dispossess.
In order to dress the reconstruction as a legitimate use of governmental power, he had to use the pretext that SMM was State- indebted and insolvent at the time when the real intention was and is to alienate SMMH from its property.
Instead of trusting the Judiciary to make such a determination, Chinamasa chose to be the judge unto the government’s cause by appropriating the powers that are normally reserved for the Judiciary to the Executive.
SMM was placed under the control of a State-appointed administrator, Afaras Gwaradzimba, on September 6 2004. The effect of the reconstruction was to place the control and administration of SMM under Gwaradzimba.
However, the shares of a company even under this controversial scheme were supposed to remain in the name of SMMH.
It is for this reason that in crafting the Reconstruction Regulations, the authors were alive to the limitations imposed by the Constitution in so far as permitting the State to arbitrarily and unilaterally vest ownership of property in the hands of another party without the express consent of the injured party.
Recognising that SMM’s true shareholder was SMMH, a scheme was then put in place after placing SMM under reconstruction for a nominee company, AMG Global Nominees (Pvt) Ltd (“AMG”), to be used for the purpose of purchasing the security interests held by T & N against ARL in respect of the shares in SMMH and THZH pursuant to the Sale and Purchase Agreement of 1996.
Relying on the mistaken assumption that ARL had defaulted on its obligations to T&N, AMG with the assistance of the government of Zimbabwe (GoZ) through the Reserve Bank of Zimbabwe paid US$2 million in respect of the title, interest and rights held by T&N in the bearer share warrants provided to T&N by ARL by way of security.
AMG then approached the UK courts for an order to rectify the member (shareholder) register of THZH and SMMH. The application was dismissed with costs. AMG’s appeal was also dismissed with costs.
This would have meant the end of the legal road for the GoZ to acquire lawfully the right, title and interest to the SMMH shares and indirectly to the SMM shares.
However, when a government ceases to perform its duty as set out in the constitution, anything is possible including deception.
Last week, Frederick Kyle of Kyle Attorneys on behalf of SMMH, THZH and ARL wrote a letter to Godwills Masimirembwa, chairman of the Zimbabwe Mining Development Corporation (ZMDC), after learning through the media that ZMDC was planning to assume the control and administration of SMM to establish the legal and factual basis of the planned takeover.
Kyle called me after speaking to Masimirembwa on Thursday that he was disturbed at what he heard. Masimirembwa is alleged to have informed Kyle he was going to respond to the letter, but in short the position of ZMDC is that since it is a creature of statute it responds positively to instructions given by the principals, in this case the Mines and Mining Development minister.
The instruction given was to open the mines and this is precisely what they plan to do regardless of the ownership issue which is a matter outside the control of the ZMDC.
If Masimirembwa was not a lawyer the above statement would not be of concern. What this means is that the right to property is not of concern to the ZMDC and more significantly that actors in the executive branch of the State suffer to impediment in executing instructions that undermine the very Constitution they took an oath to protect and preserve.
To the extent that the shareholding of SMM could not change hands during the disputed period of reconstruction, it is and would have been unlawful for any alteration of the member register of SMM without the consent and approval of SMMH.
Such approval was never sought and obtained. I never thought a day would come when I could no longer trust a government born from the womb of oppression to promote and protect a democratic constitutional order while lawyers like Masimirembwa play an active role in undermining the values and principles that underpinned the liberation struggle.