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Court reserves judgement in asset declaration lawsuit

by Staff reporter
13 Nov 2021 at 05:59hrs | Views
THE High Court has reserved judgement in a matter in which an opposition legislator launched a lawsuit against the government's failure to actualise a law that forces public officials, including President Emmerson Mnangagwa and cabinet ministers, to disclose their assets.

This comes at a time when there has been a lot of criticism around public officials who unapologetically splash wealth amid the high level of poverty in the country.

In his application filed at the High Court, MDC Alliance Harare North Member of Parliament Allan Markham, argued that public officials have been implicated in high-level corruption that has bled the country to economic ruin and poverty.

In his 239-page application, Markham presented, among other documents, a United Nations 2002 report on the plunder of natural resources in the Democratic Republic of Congo (DRC), in which Mnangagwa and the late Foreign Affairs minister Sibusiso Moyo, among other officials, are implicated in looting.

Markham also listed other corruption scandals, dealings and reports linking public officials to plunder, including in the areas of fuel; foreign exchange in particular the United States dollar; Command Agriculture, the country's commodities in particular gold, chrome, platinum and diamonds; various forms of subsidies given in the economy; procurement, the Reserve Bank of Zimbabwe's quasi-fiscal activities and through government entities.

He said the lack of legislative frameworks to promote good governance and curtail corruption would jeopardise public officials' accountability and transparency. Justice, Legal and Parliamentary Affairs minister Ziyambi Ziyambi and Attorney-General Prince Machaya are the first and second respondents in the matter. In their responses, Ziyambi and Machaya said they were not under any obligation to actualise the law, as it is a mandate of cabinet.

Justice Jacob Manzunzu however reserved judgement in the matter last week. A few weeks ago, Finance permanent secretary George Guvamatanga came under fire after hosting a lavish birthday and splurging on foreign artistes who provided entertainment at the event. Guvamatanga justified his spending, saying he made his money before assuming public office.

Makharm, who was being represented by prominent lawyer Tendai Biti, wants an order compelling the government to actualise section 198 of the constitution, which requires public officials to make regular disclosures of their assists.

Almost eight years after the adoption of the constitution in May 2013, the government is yet to compete the aligning of laws to the supreme charter.

 Section 198 states that: "An act of Parliament must provide measures to enforce the provisions of this chapter, including measures - (a) requiring public officers to make regular disclosures of their assets; (b) establishing codes of conduct to be observed by the public officers; (c) specifying the standards of good corporate governance to be observed by government, controlled entities and other commercial entities owned or wholly controlled by the state; (d) providing for the disciplining of persons who contravene the provisions of this chapter or of any code of conduct or standard referred to in paragraph (b)".

"In the course of conducting the above-stated duties I have been exposed, to the rot that exists within our government institutions, wholly riddled with corruption, thus being one of the overarching reasons, why the country fails to realise its optimum potential, for the growth and development of its own citizens," Markham argued in his application.

"Just the mere analysis of the audited statements of the Auditor-General particularly for the years 2016, 2017 and 2018 (particularly the 2017 and 2018) will confirm this position. We have been shocked by the high levels of corruption in the public service amongst government officials and others."

He said the fuel sector, United States foreign exchange, Command Agriculture, the country's commodities in particular gold, chrome, platinum and diamonds, various forms of subsidies given in the economy, procurement, as well as the Reserve Bank's quasi-fiscal activities had become hubs of corruption.

In the UN report, which Markham attached to his court papers, a panel of international experts concluded that Zimbabwean officials looted minerals in the DRC. "Although troops of the Zimbabwe Defence Forces (ZDF) have been a major guarantor of the security of the government of the DRC against regional rivals, its senior officers have enriched themselves from the country's mineral assets under the pretext of arrangements set up to repay Zimbabwe for military services," the UN report said.

"The key strategist for the Zimbabwe branch of the elite network is the speaker of the parliament of Zimbabwe and former National Security minister Emmerson Dambudzo Mnangagwa. Mr Mnangagwa has won strong support from senior military and intelligence officers for an aggressive policy in the DRC.

 "Other prominent Zimbabwean members of the network include Brigadier-General Sibusiso Busi Moyo, who is director-general of Cosleg (a Congo-Zimbabwe joint stock company). Brigadier Moyo advised both Tremalt and Oryx Natural Resources, which represented covert Zimbabwe military financial interests in negotiations with state mining companies of the DRC."

The report also mentions former Defence minister Sydney Sekeramayi, the late General Vitalis Zvinavashe and the late Lands minister Perrence Shiri, as well as Billy Rautenbach and John Bredenkamp as playing critical roles in the looting.

"A forum has been established between Tremalt and ZDF to plan strategy in the DRC and ‘look at the interests of the Zimbabweans'. Meeting monthly, the forum's main members are Zvinavashe, Moyo, air commodore Mike Karakadzai, Bredenkamp, the managing director of KMC, Colin Blythe-Woodand the director of KMC Gary Webster," it said.

 "In one example, on 13 March 2000, Oryx officials in Kinshasa loaded an aircraft belonging to Bredenkamp with eight crates of Congolese francs for shipment to Harare. The panel also has documentation substantiating information that an Oryx employee regularly transported parcels of (US$500 000 at a time) that were withdrawn from the Oryx account at Hambros Bank, London, to Kinsasha without declaring them to the Congolese authorities; at Kinsasha, the money was changed into Congolese francs and further transported to Harare and the eastern DRC. Oryx employees said they were asked to pay Mnangagwa a commission on these transactions which contravened Zimbabwe law."

 A number of the players named in the report such Zvinavashe, Moyo and Bredenkamp have since died. Markham said the levels of corruption are dire and one of the reasons why the situation is out of hand is because there are no adequate legislative tools for combating corruption or tools that keep those in positions of authority in state institutions fully accountable, hence the need to actualise section 198 of the constitution "for it serves this particular purpose and more particularly subsection (1) a) of the same".

In their responses filed at the High Court on 31 December 2020, Ziyambi and Machaya said they had no constitutional obligation to actualise section 198.

"I aver that the responsibility to ‘prepare' and ‘initiate' national legislation lies squarely with ‘cabinet' in terms of section 110 of the constitution which deals with executive functions of the President and cabinet. In this application neither the cabinet of Zimbabwe nor even the government of Zimbabwe itself has been cited as respondents," Ziyambi said.

 "As our constitution was silent on the specifics of implementation it took some time to realise the effect of the possible delays in the implementation of the constitution." In his response, Machaya said: "I respectfully aver that, in the light of my functions as set out in the said section 114 of the constitution this honourable court should see it fit not to order any relief against me in this matter. I am under no obligation to enact the law which is the subject of this application."

 Ziyambi had however revealed in response that Machaya chairs an inter-ministerial committee that oversees issues pertaining to the implementation of the constitution. Zimbabwe has unexplained wealth regulations under the Money Laundering and Proceeds of Crime Act of 2013.

Only one person - Russell Mwenye, a former Parirenyatwa Hospital stores manager - has been convicted and jailed for corruption, and his property seized.

Source - thenewshawks
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