The importance of the Rule of Law – the ENG case
Today, 1 January 2011, being the first day of the second decade of this African century provides another opportunity for us as Africans to reflect on what kind of Africa we want to see.
To the extent that the future is a product of human actions and choices, we can shape the future by the decisions we make today and more significantly by the actions that flow from the decisions made.
To me, the just ended year brought with it my de-specification. I was specified on 9 July 2004 together with Messrs. James Mushore and Francis Zimuto.
As I looked back at the 6 years, I am comforted that I have not been alone in the bus. The bus that I took a ride in 2004 already had passengers including Mr. Gilbert Muponda, a Zimbabwe-born entrepreneur who was forced to leave a country of his birth because of a real threat to his life; Mr. James Makamba who became the first high profile person to spend about 7 months in remand prison for a crime he did not commit.
As I sit today trying to understand the Africa that can be possible if the state is controlled by a few wise but evil persons, I just discovered that no attempt has been made to make a head count of all the people who were forced to ride on this bus.
I discovered that the majority of persons specified on allegations of externalisation were black. Some were professionals while others were business owners.
What is remarkable is that after 6 years of madness, no attempt has been made for the passengers to come together to exchange experiences and really to compare notes.
The experiences that we have been subjected to are now part of the heritage of Zimbabwe and yet very little has been recorded of this ugly period. Who was behind this onslaught on personal and property rights?
The first victim was Mr. Muponda and his colleagues at ENG. While it is easy to reduce Muponda’s ordeal to a personal matter, it is important that the nation be told why if ENG was insolvent, Muponda and fellow directors were arrested and subsequently specified.
In a constitutional democratic order, it is not unusual that companies fail and the law has adequate protection for genuine creditors yet in the ENG matter we saw for the first time the emergence of a new order. Under this order, law enforcement authorities were called to action and new laws were introduced to allow for the persecution of targeted persons.
As we begin this year, we cannot escape from the sanctions debate as it relates to the GPA arrangement and yet the sanctions imposed on people like Muponda continue to exist well over 24 months of the existence of the GPA government.
When I read yesterday that Muponda had appealed to Hon. Chinamasa for his specification order to be revoked, I knew that Muponda was on his own.
It is often difficult for anyone to imagine what must be going on in Muponda’s mind on this day. I am reminded that in the class of the specified persons, there remains a number of persons whose specification order are still in force. Such individuals include: Messrs. Jabulani Manyanga, Francis Zimuto among others.
Although Mr. Makamba was de-specified in May 2010, a warrant for his arrest is believed to be still in force notwithstanding the fact that he was acquitted by a court of law.
Mr. Muponda was specified in terms of the Prevention of Corruption Act (Act). This piece of legislation was intended to allow the state to investigate a specified person while preserving his assets. The legislation was not meant to legally disable a specified person from defending himself while his property was under attack.
Precisely who has an interest in preventing Muponda from returning to Zimbabwe? Surely it is not the creditors of ENG. Who was behind the arrest of Muponda? It could not be creditors of ENG whose protection could only lie in the laws existing at the time.
In the ENG matter, we saw for the first time the use of criminal law to regulate the relationship between a creditor and a debtor. This raises a question regarding the legal and constitutional order that would allow for the RBZ to interpose itself as a complainant in a dispute involving competent creditors and a vulnerable debtor.
As we stand today, there is creditor who has reported any financial loss from ENG. More significantly, Muponda finds himself with no access to the very assets that were meant to be protected under the Act.
During 2010, Interfin took control of CFX Bank, one of the assets formerly under the control of ENG before this bizarre saga. Muponda has sought to argue that the transaction was illegal and this found him at loggerheads with the shareholders of Interfin.
If the rule of law existed, should Muponda be at loggerheads with Interfin shareholders? When one looks at the timeline, it will be obvious that Muponda lost control of his empire at the hands of state actors and not creditors of ENG.
The law states that any transaction involving the disposal of the assets of a specified person during the period of specification is null and void and yet Interfin has sought to argue that notwithstanding Muponda’s continued specification, the deal involving CFX is above board.
It is incumbent upon all of us to be the custodians of a just and equitable society. Should Muponda as a victim be left to his own devices to restore his rights or should it be our collective responsibility?
When Hitler targeted gypsies, many chose to ignore and as he gained confidence in undermining the rights of citizens no one was safe. If Muponda is not safe and the tolerance for abusive behavior exists, then we are all at risk and poorer for allowing absurd situations to define our generation.
As we look forward, we need to critically reflect on the journey traveled and draw lessons hopefully on how not to behave lest the strong of today will be the Mupondas of tomorrow.
The importance of the respect of the rule of law cannot be overstated. What happened to ENG can happen to any corporate citizen of Zimbabwe.
History will no doubt be the judge but it is important for our generation who are privileged to know what Zimbabwe lost by the collapse of ENG to register our distaste about the manner in which laws were used for improper purpose while the authors of this kind of behavior remain unaccountable even with the emergence of the inclusive government.