Mr. Elvis Mugari, the Founder and President of the Combined Restitution Association for Zimbabwean Youths, has reacted angrily to an article published to the effect that Mr Mutumwa Mawere will be the Temba Mliswa-led Committee on Mines and Mining Development when it is very clear that this is an attempt by the Committee to avoid dealing with the legality and constitutionality issues.
“It is regrettable that Mr. Mawere, a person we all thought was fighting for the promotion and protection of the rule of law to appear before a Committee that has so far failed to acknowledge and appreciate that the Reconstruction Act belongs to a class of laws that are so reprehensible to be tolerated in any democratic society.
The experiences of SMM Holdings Private Limited (SMM) has given us a context to bring to life the widely held view that President Mnangagwa is a problem for anyone who subscribes to the doctrine of constitutionalism.
He fathered this Reconstruction Act that we are talking about and was the driving force behind its implementation.
This law permits the Minister of Justice to issue an extrajudicial order whose effect is to divest shareholders of the rights in relation to a company.
It is surprising that Hon. Mliswa who exited from the Friends of SMM (FOSMM) when questions were being raised about his honesty and integrity in respect of the manner in which he has handled the Hwange Colliery Company Limited (Hwange) hearings where his preoccupation has been to use the Committee for ulterior motives rather than to promote the rule of law.
I consider Hon Mliswa’s Committee to be a kangaroo one where agendas are the driving force rather than a pursuit of any public interest.
If it it true that Mr. Mawere has agreed to appear before a Committee that prevented Mr. Nicholas Van Hoogstraten, a shareholder of Hwange, then surely we need to know on what basis Mr. Mawere will appear before the Committee.
We have raised the issue of the status of SMM especially having regard to the fact that a judgment per Mangota J exists that SMM is not a subsidiary of ZMDC but remains a company under reconstruction as follows:
I have taken note of what Hon. Mliswa said on this matter which is instructive that the hearings will take place in the context that the Reconstruction Act is the law of the land and it is not the place of parliament to review and amend laws that are inconsistent with the Constitution.
The Attorney General appeared before the Committee and said that the Committee had no jurisdiction over the Reconstruction Act. This position has yet to be challenged in order for Mr. Mawere to appear before it.
I am aware that on 28 November 2018, Mr. Mawere requested the Clerk of Parliament, Mr. Chokuda to allow him to submit oral evidence on the constitutionality and legality of the Reconstruction Act as follows:
It is clear from the email attached hereto that Mr. Mawere sought to deal with the legality and constitutionality of the decision to place SMM under extrajudicial reconstruction and also the procedural aspects of the matter.
In our group, FOSMM, the issue of Hwange was vigorously contested with some of the members saying that it cannot be business as usual as long as laws like the Reconstruction Act exists and operates.
We took a view that our focus should be on the rationality, lawfulness and constitutionality of the law than to talk about the operations of SMM and the conduct of the Administrator who is after all a creature of statute.
Against the above backdrop. it is shocking that Mr. Chokuda on behalf of the Committee, has responded as follows:
In terms of this letter, it is clear that the focus of the Committee will be on the operations of SMM pursuant to the operation of a law that we say must never be on our statute books.”
Dr Daniel Shumba, the former Chairman of the Committee and a member of FOSMM, said: “I am also surprised that notwithstanding Mr. Mawere’s request that the Committee consider the legality and constitutionality questions regarding the existence and operation of the Reconstruction Act, the Clerk of Parliament presumably on the advice of the Committee is of the view that the law must go unchallenged.
It is my considered view that the Committee has inherent jurisdiction to play a part in highlighting to the Parliament why this specific law serves no public interest.
Before I was removed from the Committee, I had started a process that would have seen this law be repealed as it was my view and continues to be my position that no rational person can live with a law that poses so grave a risk to any investor in Zimbabwe to exist at a time when we all should be looking forward to a brighter and prosperous Zimbabwe.”
President Mnangagwa whose legitimacy has been endorsed by SADC and the AU has promised the rule of law and it is our collective duty to hold him accountable to this promise.
It is unacceptable that the voices of constitutionalism and rule of law have been limited to statecraft matters when civil society and the public in general have to play their part in reducing the frontiers of lawlessness and arbitrary decisions.
It is my hope that we can work together to build the Zimbabwe of our dreams that is characterised by laws that speak to the values of the constitution that we all played a part in delivering.”