The agenda of transforming the state – the ENG case

OPINION – It is significant that Hon. Member of Parliament and Finance Minister Tendai Biti concluded his response to Manheru’s article published in the Herald of 4 September 2010 entitled:

“Privileged proletarians: when the beautiful ones are not yet enough” by stating that: “In simple terms, this generation has the monumental duty of the transforming the State into a national democratic State.”

By this generation, Hon. Biti meant our generation.  Precisely how the state can be transformed into a national democratic state is the question that we should all respond to.  Because in addressing this issue, there is no doubt that the question of the role of the state in nation building will necessarily have to be interrogated as is the obligation of citizens to promote and protect their interests.

Many have accepted that Zimbabwe is under real sanctions but very few have focused on the internally generated sanctions that have produced absurd outcomes like the ENG saga and many others where the victims were black and the perpetrators were also black persons.

Indeed, our generation is lucky in that some of the key founding fathers of Zimbabwe are still alive and are sharing the experiences of post-colonial rule together with a new generation of citizens with no or remote memory of what it was like before 1980.

Before 1980, the experiences that we now take for granted like, for example, Gilbert Muponda being a shareholder in ENG Capital and the asset management firm would have been unthinkable. 

The integration and participation of blacks in the mainstream economy can be credited as one of the achievements of the liberation struggle.
Before independence, we were divided in terms of race and participation in business was, therefore, prescribed. 

Our understanding of business as black citizens was necessarily clouded by our past and continues to be polluted by our inability to embrace the limitations and opportunities offered by the corporate civilization on human development and growth.

The concept of the rule of law, therefore, has to be understood in its holistic and historical sense. 

For a person stripped of property through the improper use of the law, the rule of law is important. 

However, for a person without property, the rule of law concept has no real meaning.

It is not unusual that the few blacks who have crossed over from the class of people alienated from property have a difficulty in being understood.
To Hon. Biti this generation has a monumental duty of transforming the state into a national democratic one.  The state is creature of citizens and only exists to serve the interests of the people for whom it is established. 

If this is the right construction, the state itself is incapable of being democratic rather it is the responsibility of citizens to ensure that the rights are protected and secure under the constitution.

It would be wrong to expect state actors to exhibit democratic tendencies anymore than the citizens they represent. 

In countries where political actors assign to themselves the role of super citizens with the monopoly of wisdom, it becomes difficult to create an environment that encourages citizens to assert their rights.

I should like to believe that our duty is to encourage citizens to take their civic obligations seriously and not to trust any person with too much power.
The state can be an instrument to promote individual progress and in so doing promote national progress. 

We must accept that the process used to select political actors is not a perfect one.

It would be absurd to expect ordinary human beings to be transformed into super smart individuals through the mechanism of a ballot. 

A democratic constitutional order must be underpinned by vigilant citizens.

The checks and balances that are characteristic of national democratic orders are only enforceable through the actions of citizens. 

The futility of the proposition that the state can be transformed is easily exposed when one considers that the state cannot have a life that is independent of its constituent parts. 

Developed countries can only protect their status if citizens take it upon themselves to put limits to what is and is not acceptable.  
The tolerance limit necessarily becomes higher than in less developed states.

What kind of behaviour then should not be acceptable in a democratic constitutional order?  The last 30 years of independence have provided us with many examples of what not to do. 

One such case that continues to trouble me is the ENG saga not because I have a personal benefit in its resolution but in that it raises fundamental and critical legal and moral questions that need more exposure as we seek to build a better and brighter Zimbabwe.

In this unusual case, we are exposed to a kind of behaviour that should call all of us to action.  It exposes a limited understanding of institutions and their role in economic change. 

When people think of ENG, the company, they invariably take the view that the shareholders are the company. The fact of this case is that Muponda and Watyoka were employees of ENG and yet they were arrested on 31 December 2004 because they were presumed to be the controlling shareholders of the companies involved. 

If a problem occurs in a company presumed to be owned by an individual, the knee jerk reaction is that the person irrespective of his relationship with the institution involved must be accountable in his personal capacity. Equally, in respect of the nation state, it is not unusual for people to associate economic decay with the actions of leaders. 

We all know that leaders like actors in business are only human and yet when we evaluate their actions we would like them to be super human.
The relationship between ENG and its shareholders is no different than the one between the state and its citizens. 

The two are separate and distinct personalities and yet when it comes to assigning culpability, it is always the case that individuals are targeted for the conduct of companies.

Why were Muponda and Watyoka arrested?  Their arrest exposes a serious fault line in our collective thinking about institutions and individuals who serve them. 

The arrest of directors had its own unintended consequences.  It forced the directors of ENG to take the view that voluntary liquidation of the company was the best route to follow.  It then appears as if the decision to wind up ENG was a voluntary one when the facts show that it was an induced choice.  
Even the liquidator, who was appointed, Reginald Saruchera, ended up taking a similar view that was widely held in the public domain that a crime was committed and at best, the liquidators should minimise contact with the shareholders of ENG.

The erosion of rights had its first step in the action of the police whose arrest of the directors of ENG precipitated a series of actions. 

By critically examining the unfolding events that took place in the ENG matter it becomes obvious that democracy is perishable and more importantly that those who stand to lose by lowering the tolerance threshold are the very people who choose to remain silent.

Even my intervention in this matter can easily be misconstrued as driven by a personal agenda rather than by a genuine attempt to respond to Hon. Biti’s clarion call that it is only up to us to make a better tomorrow. I have had the privilege of reviewing the ENG papers and I must confess that I am totally outraged.  Outraged becomes of the conduct of non state actors in hijacking the state for personal benefit.

When you have a liquidated becoming an interested party in the estate he/she is administering then one must be scared.  In this case, we see shareholders who were forced to liquidate their companies by an act of state now being exposed helplessly to a liquidator who chose to keep the residual claimants in the estate in the dark.

The use of specification to disable victims is a new phenomenon that has to be understood in its proper context.  Any person interested in promoting democratic change would necessarily have to use cases like ENG as raw materials to explain why it is not just the responsibility of politicians to change but the responsibility of all to be the change that they want to see.

What the collapse of ENG facilitated by the state?  What would have happened if the directors of ENG were not arrested?  What would have happened if the liquidator of ENG was impartial, unbiased and independent?  Why is it the case that no statement of assets and liabilities was prepared by the liquidators before disposing of assets?

Many questions come to mind when one looks at this case.  What was the role of the change in monetary policies on the viability of companies like ENG?  If laws were violated, why was it necessary for the RBZ to step in to put new laws to regulate asset management companies?  If there was no legal framework prohibiting ENG to act in the manner it did, why then was Muponda and Watyoka arrested?

We are all students of history and to the extent that the past has a memory we need to enrich our heritage by understanding the true nature of the forces at work in the ENG saga. 

It is only when our personal experiences produce the kind of facts that expose the dangers of tyranny that we must pause and use any means necessary to name and shame the culprits.  In doing so, I have no doubt that we will be fulfilling our obligations to the project called Zimbabwe. 

It is only when the culprits are exposed and the facts are brought to the attention of all concerned citizens that we can safely say we have added value to the creation of a state in which citizens are the custodians of sovereignty not merely the representatives whose actions may be informed by falsehoods and manipulated facts.