Addressing an investment conference in Johannesburg recently, Finance minister Tendai Biti advanced a view that he has held for a long time that “while nationalism was a good and sufficient instrument for the democratisation and the decolonisation of the colonial state, it did not have an answer to the post-independence challenge of development, democratisation and upliftment of the people”.
He attributed the challenges that have confronted a number of black Zimbabweans engaged in business primarily to the attitude of Zanu PF representatives in the State whose actions he has previously described as motivated by a power retention agenda.
I was present at the Press conference held on March 1 2012 when Biti responded to a question raised regarding SMM Holdings Private Limited (SMM) following a remark he made during his presentation at the conference that apart from land, no property rights of private citizens had been alienated without compensation by the State.
The thrust of his response was that the “inheritors of the African state at independence had no craft competence and craft literacy to deal with State craftsmanship” to the extent that black capital formation was seen as a threat to what he perceives as an agenda by a few State actors to retain power at all costs.
After the Press conference, I reminded him that the SMM matter was somewhat different in that the legal holder of shares was a British registered company and, therefore, it was incorrect for him to state as truth and fact that no property rights of any external shareholder have been interfered with to which he responded surprisingly by saying that he did not buy what he described as a technical argument that I sought to advance that the unlawful transfer of SMM’s shares held by a foreign company to a nominee of a government in which he is a minister without the consent of the lawful shareholder could qualify as expropriation.
Accepting that Biti is an experienced lawyer, I was at pains to understand why he would choose to dismiss the factual and legal matrix of the SMM matter.
He took the view that his appreciation of the facts was the only logical and legitimate one and, therefore, had no appetite for any variation.
His view was that I was an indigenous person and my fate was written in the construction and performance of a post-colonial state presided since independence by backward looking nationalists.
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With respect to the SMM matter, Biti said: “It’s not an issue under the Ministry of Finance, but what I know is that some of us have been fighting that he gets his assets back. The only complication is that there have been various judgments, unlike in the other situations. I don’t think it’s a lost case, it’s a struggle and Mawere will get his assets back.”
In the interests of broadening and deepening insights on the complex issue of nation building, I thought it would be beneficial to the process of building a body of knowledge in the minds of indigenous persons about the importance of the rule of law if Africa is to deliver the promise of a better life for all.
To the extent that Biti is an important role player in the Zimbabwean political process, it is vital that we negotiate with him in the public arena where we feel that his understanding of issues does not represent the universe.
Rather, if uncorrected it can be more corrosive than the behaviour and attitude of post-colonial Africa’s founding fathers.
It is important then that the minds of the majority of Zimbabweans meet on the observations made by Biti that the SMM issue that has adversely and continues to affect the lives of many and remains uncured after three years of the existence of the inclusive government is a Zanu PF matter and that his ministry bears no responsibility for the unfortunate and regrettable development.
What I do know is that the Cabinet system of government still works in Zimbabwe. Accordingly, it would be wrong to suggest that the matter of protecting black investors has been excluded from the agenda of Cabinet and, therefore, the State has been reduced to a theatre for the political parties to play games.
If Biti is committed to building a new Zimbabwe founded on the respect of property rights, he will be a friend to all who have struggled to find a voice over the last 32 years.
It is common cause that a law exists on Zimbabwe’s statutes that allows the State to assume the control and administration of private companies without the involvement of the courts on account of allegations of State indebtedness.
To the extent that for the law to have any meaning, the affected party must indeed be indebted to the State, it is strange that Biti would have no interest in establishing whether SMM was indebted as alleged to the State.
Although he said that he is one of the people in government who have been fighting not for the restoration of the rule of law, but for me to get my assets, it is critical that the true implications of what Biti said is digested and understood.
It would appear that Biti has no problem with the fact that his ministry is involved in what would ordinarily be a State liability matter. How could SMM be State-indebted without the involvement of the Ministry of Finance?
If indeed SMM was State-indebted, what disability does Biti suffer in informing the nation of the existence and magnitude of the alleged indebtedness?
One would expect Biti to know that a law that confers on State actors the right to arbitrarily and unilaterally transfer claims of State institutions to an undefined super-State body administered outside the knowledge of the Ministry of Finance is not only unconstitutiona,l but serves no legitimate national interest.
Notwithstanding, Biti would arrive at the conclusion that judgments that arise from an illegal law pose a problem to an inclusive government that seeks to lift Zimbabwe up. Biti went further to state that:
“We went through a period in our country where the State had a problem with black capital. Local black capital did not just apply to Mutumwa (Mawere),” as if to suggest that the era had ended.
For the benefit of Biti, the existence of the inclusive government has not changed the morality that informed the actions of State actors in invoking the law to solve political, social and commercial disputes.
I have no doubt that Messrs Frank Buyanga, James Makamba, Gilbert Muponda, Nicholas Vingirai and others would be surprised to learn from Biti he is not aware of their continued ordeal under the inclusive government.
When the vacancy of the office of the Speaker was created by the Supreme Court, Biti and his colleagues were not impotent in responding to the challenge suggesting that minds can meet and act if it is deemed that the challenge deserves an appropriate response.
The fact that the Reconstruction Act exists seven years after its enactment goes a long way to confirming that no political will exists to repeal it.
Even the most ardent critics of the government of Zimbabwe would agree that laws have been used to achieve illegitimate ends but what is remarkable is the silence of the majority to the extent that the new political actors from who so much was expected have reduced themselves to public relations officer if not spectators.
On the question of SMM, I have no doubt that any Minister of Finance cannot avoid being involved, especially when the State that is desperate for income is held hostage by political cowards who would use the law to create a crime that does not exist only for the purpose of allowing the State to be used as an instrument of dispossession.
It should not matter whether I get my assets back or not, but that Zimbabwe respects the rule of law.
If I were to advise Biti, my message would be stick to what matters to the nation so that the playing field is level and no State actor must be allowed to act in a manner that undermines the integrity and legitimacy of the State.
It is not too late for Biti to tell the nation of what the relationship, if any, between the State and SMM was in respect of the allegation that SMM was State-indebted.
In fact, I would suggest that a commission of inquiry be held to establish if indeed SMM was State-indebted and why existing laws were deemed inadequate to protect the interests of a bona fide creditor.
The responsibility to build an inspiring, inclusive, shared, cohesive, responsible and responsive Zimbabwe is a joint one and our actions should build a sense of confidence and above all respect based on the fact that no State actor possesses the monopoly of wisdom rather should be a conduit for adding the voices that often are not given the space by a system that has systematically crowded out the voices of the majority in the name of mistaken national progress and interest.
Mutumwa Mawere is a businessman based in South Africa. He writes in his personal capacity.
