Dr. Daniel Shumba, the immediate former Chairman of the Parliamentary Committee for Mines and Energy, who followed closely the proceedings of the Committee in which the Attorney General, Hon. Prince Machaya, stated boldly that in his view, the Reconstruction of State Indebted Insolvent Companies Act (“The Recon Act”) does not contravene the Constitution.

“I was shocked to hear an Attorney General whose role and power is prescribed in the Constitution of Zimbabwe. It is worth highlighting that s 114 provides that one of the AG’s functions is to promote, protect and uphold the rule of law and to defend the public interest. One does not need to be a lawyer to know that a law that permits a Minister to issue an order, with the same force and effect of a judicial order, that limits the constitutional rights of shareholders and other stakeholders in respect of a company, can never pass any constitutional muster. I listened with disgust while the AG, presumably thinking that we are all illiterate, defend this draconian and penal law that should never exist let alone operate in a democratic constitutional state,” said Dr. Shumba.
He also said: “The President has promised constitutionalism and the rule of law, yet the AG as the principal legal adviser to the Government seems to think and act in a manner that is ultra vires the constitution. On this basis alone, he is and ought to be automatically disqualified from holding any public office. The mere fact that the AG seems to think that the Minister of Justice, a member of the Executive branch of government, has the power to divest shareholders and directors of the rights they constitutionally have in relation to a company without following the due process of the law and the Constitution must concern any person interested in the prosperity of this country.”
“It is my considered opinion that the Committee members missed a unique and opportune moment to expose the illiteracy of the AG and his dereliction of duty when they failed to interrogate him about the letter and spirit of the Act in order to establish whether they speak to the prescripts of the rule of law. The Constitution compels the AG to be on the side of the Constitution yet what I heard from yesterday was so shocking that I could not help by vocal on the urgent need to remove this AG otherwise all the plans and efforts to improve the business climate are doomed,” said Dr. Shumba.
The Recon Act empowers the Minister of Justice without notifying a company’s stakeholders to issue a reconstruction order in respect of a private company.
The effect of the order is to divest the shareholders of the power to appoint and remove directors of a company they hold shares in.
In addition, the Minister is permitted to divest the directors of a company of the right to control and manage the company outside the operation of the Companies Act.
In terms of this law that the AG said is a good law, the Minister of Justice can issue the order by way of notice in the Government Gazette without the knowledge of a Court or Judge.
The role of the Court is limited to confirming this Ministerial or Executive Order.
However, the law provides that the first time the Court will get to know about the facts and circumstances of the order is 30 days after the issuance of this quasi or extrajudicial order when the confirmation of the order is sought.
“Imagine you have a company that owes money to a government institution. Then the Minister of Justice decides in his own wisdom and independent to the concerned institution to issue an order in relation to this company. In terms of this law, you are left in a legal vacuum for 30 days while your rights in relation to this company are impaired. Then you have the AG, the very person who is supposed to protect, promote and uphold your sights as a shareholder boasting that the existence and operation of this law serves a bona fide and constitutional purpose. What would you do when confronted with this nonsense in the name of some imagined public interest?” said Dr. Shumba.