KMAL saga reveals new level of lawlessness

“KMAL saga: TM Cleared” 

It is significant that in the same article that it was reported that more evidence of corruption against companies and individuals linked to the major shareholder of the group, Mr. John Moxon, had been unearthed.

The above-mentioned statement was attributed to Mr. Jacob Gonese who represented himself as Acting Principal Director in the Ministry of Anti-Corruption and Anti-Monopolies fully fixed with the knowledge that in the framework of the inclusive government no such ministry exists.

To the extent that the reporter and the editor of the Herald, a newspaper that is state controlled, found no problem with accepting the position that a person representing a non-existent Ministry can have the authority to make such profound and far reaching statements, exposes the gravity of the Zimbabwean crisis and its seemingly intractable nature.

Accepting that Mr Jacob Gonese may very well have no legal standing to make the kind of representations that he is alleged to have made, it is startling that notwithstanding the fact that the co-Ministers of Home Affairs who appointed separate investigators pursuant to the Prevention of Corruption Act (PCA), Mr. Gonese whose role in the KMAL affair is not clear was reported to have said: "Investigators have also unearthed further alleged acts of corruption on the part of the (following) companies and persons: Andrew Lane Mitchell, Kingdom Meikles Limited, Tanganda Tea and Company (Pvt) Ltd, Thomas Meikles Centre (Pvt) Ltd and Murlis Investments (Pvt) Ltd."

The authority of the co-Ministers of Home Affairs to issue the specification order is already under judicial review and yet it appears that the Investigators appointed pursuant to the operation of the disputed order are not only already at work but in truth and fact report to Mr. Gonese, person not mentioned in the specification order.

There is no disclosure in the said article about the connection between Mr. Gonese and the dubiously appointed investigators let alone an interrogation into the kind of constitutional democratic order that would produce this kind of confusion.

Surely, people who purport to represent a higher moral order; must be underpinned by legitimate authority. The anti-corruption function of the state no longer has a home and there is nothing that can be done to authenticate the specification and de-specification of people using state organs not vested with the authority to do so.

Notwithstanding, Mr. Gonese is reported to have said: "In order to curtail any further prejudice to the taxpayers the last shareholders’ meeting was barred to enable the finalization of investigations into attempts to sweep an alleged case involving the externalization of US$22 million by Mr Moxon, under the carpet. The co-ministers are naturally unhappy about the gravity of the allegations and have given directives to the investigators to get to the bottom of the case and the investigators are doing their work professionally."

It is important that we attempt to analyze the full import of the above statement as it raises interesting and fundamental legal and commercial issues.

Mr. Gonese is essentially justifying the intervention by the state in the holding of an emergency shareholders meeting duly called in accordance with the Companies Act on the grounds that holding such a meeting would further prejudice the taxpayers without explaining precisely how taxpayers’ interest feature in matter involving shareholders exercising their constitutional right to make decisions on behalf of companies in which they have interests.

What kind of political morality would justify the state’s purported interest to override the constitutional rights of shareholders? Do shareholders still have the sovereign right to make choices under the inclusive government?

Mr. Gonese further makes the allegation that if the general meeting of shareholders were to be held before the conclusion of the investigations, then this would be tantamount to "sweeping" the alleged externalization charge under the carpet. Whose carpet, one may ask?

As if he is the spokesman for the co-ministers, Mr. Gonese makes the case that the co-ministers are unhappy not with the fact that the state is interfering in a purely commercial matter but about the purported gravity of the untested allegations.

In any democratic society, no one would expect a state actor to be unhappy about matters that involve the interests of private actors.

What is being alleged is that the proceeds generated in the disposal of certain assets situated in a foreign state have not yet been remitted to Zimbabwe and, therefore, that non remittance constitutes a criminal conduct on the part of not all shareholders but the former Chairman of the company who also happens to be a major shareholder of the company.

It is common cause that the funds in question are the exclusive property of KMAL and not the state. The state’s interest in the funds could only conceivably be in the taxes due and payable but the principal amount whether in a foreign or domestic account is and must be the property of the owner i.e. the company and definitely not the state. The only legitimate way for the state to access such funds is to make Zimbabwe an attractive investment destination by respecting property rights and observing the rule of law.

Would it have been in the interests of the company to remit such proceeds to Zimbabwe at a time when it is commonly acknowledged that there exists a crisis whose resolution lies outside the control of private actors?

Mr. Gonese then made the case that the specified persons could present their evidence to prove their innocence if they so wished.

What kind of political morality would make it discretionary on the part of the accused to prove their innocence? Should the state not presume the accused to be innocent until proven guilty by a court of law?

Until the startling revelation by Mr Gonese that it is "hot air" to claim that the decision to specify KMAL was not made by the inclusive government as maintained by the MDC-T and following the widely publicized comment by Minister Mutsekwa, the general public was and is legitimately entitled to assume that the co-Ministers of Home Affairs are at loggerheads over the specification issue as it undermines the credibility and integrity of the new dispensation.

To the extent that any rational mind that wishes Zimbabwe well would expect the kind of culture that preceeded the formation of the inclusive government to end, it is remarkable that Mr. Gonese had this to say: "The hot air surrounding this case does not surprise this office or that of my co-ministers who have co-operated well as politicians. In this particular case, like in all others, the co-ministers are behind each other every step of the way."

How can co-Ministers of Home Affairs be Mr. Gonese’s supervisors when it is common cause that the administration of the PCA has not been assigned to the Ministry of Home Affairs?

If there were people in doubt about the values, beliefs and principles informing the inclusive government, Mr. Gonese has provided the answer.

He pointed out that the co-ministers are guided by sustained consultations and, indeed, the decision to specify KMAL was in the national interest. Accordingly, using this reasoning, the enforcement of the order is justifiable.

As if Mr Gonese is completely oblivious to the many examples in which the specification route has been used to undermine private property rights, he made the case that the specification of the companies and individuals was not implemented so that Government could take over the entities concerned, but rather to create conditions for the smooth and legal operation of business.

I can only remind Mr. Gonese that in May 2004, a warrant for my arrest was issued by the Zimbabwe Republic Police that then paved the way for the GOZ to apply for my extradition in South Africa. When the extradition application was dismissed in South Africa, 9 days later, Minister Chinamasa issued a specification order in terms of the PCA.

On 13 August 2004, Assistant Commissioner Mangoma was appointed as my Investigator. On 26 August 2004, CFI Holdings Limited (CFI), a listed company on the ZSE was also specified in conjunction with other companies deemed to be associated with me. Mr. Saruchera was appointed as Investigator of the companies.

At the time of specification, the shareholding of CFI and Zimre Holdings Limited (ZHL) was different from what it is today. The difference can only be due to the effect of the specification order. Mr. Gonese will no doubt find out that the GOZ is now the controlling shareholder of ZHL.

How did the GOZ come to be the controlling shareholder? He will understand that without the assistance of the PCA, the control of both ZHL and Zimre would not have changed.

If this is the case, Mr. Gonese must accept that the public is not naïve and more importantly Mr. Moxon is and must also be alive to the real dangers of trusting a government that has not only already shown that the concept of self help is not inimical to the rule of law but that it can achieve its ulterior motives through the assistance of unjust laws and unconstitutional conduct. How can the state be a judge unto its own cause? It has no shares in KMAL? However, it must be obvious to Mr. Gonese that state power is being rented to improve the bargaining power of the "chosen" people. Should state power be used in this manner? Can Mr. Gonese be allowed to make untested allegations without the involvement of the courts?

What Mr. Gonese may also not know is that the Zimbabwean judiciary has so far not only turned a blind eye at numerous attempts by victims of this kind of tyranny but has creatively sought to use the courts to give life to the abuse by refusing to deal with the merits of the cases choosing to use technicalities to dismiss any legal challenge.

When Mr. Gonese says: "Government is in no way taking over these companies but simply trying to cure them of their mischief" one is forced to accept the general proposition that when the wheels are off the remedy may not lie in targeting the head of the fish but in better understanding the true extent of the decay of the political and economic morality as this will naturally focus people’s attention beyond personalities to the core of what is clearly a systemic problem.

Mr. Gonese who evidently has not done his research or he is naïve goes on to say: "In fact, specification does not and should not affect the day-to-day operations of these going concerns but the same provides for a period during which specified companies must account for their alleged corrupt actions to appointed investigators and once stolen or externalized resources are returned, an affected entity will not stay specified for a minute longer."

I was specified in July 2004 and after 5 years; Messrs. Mangoma, Saruchera and Gwaradzimba (appointed to give life to the expropriation agenda) have yet to produce reports that deal with the merits of the original allegation but evidently Gwaradzimba is richer today because of state intervention.

Surely, Mr. Gonese must tell the public the truth if, indeed, he is the most senior state actor responsible for anti-corruption, albeit, with no ministry to house his obsolete department.

Before commenting irresponsibly on the KMAL affair, perhaps he should start by commenting on his decision to ignore the evidence confirming that the allegations that I externalized funds were baseless.

Indeed, Mr. Gonese appears to have taken the view that he can be the judge, jury and executioner and anyone who has critically reviewed the statements attributed to him will not be mistaken to conclude that he is doing a hatchet job to defend the indefensible.

We now know that the government no longer has the burden to amend the constitution as it can deprive citizens of their rights using instruments like PCA and reconstruction.

With people like Mr. Gonese in government, who is safe?