Zidera 2018 amendments Act, What does this mean for Zimbabwe?

TWO years ago, I completed my undergraduate studies and thus attained a Bachelor's Degree in Applied Accounting. The process towards attaining this qualification involved completing a research report and most importantly, writing what is known as the skills and learning statement (SLS). In this article, I am going to focus mainly on the skills and learning statement, as in my view, the characteristics and processes involved in completing this document are the ones captured in the Zimbabwe Democracy and Economic Recovery Act (Zidera) (S494) of 2001 and subsequent 2018 amendments, passed by the United States Congress.

The skills and learning statement is basically a statement of self-reflection, where one will be required to recall the processes conducted whilst completing the research project. The statement questions are designed for one to be his or her own judge through imparting this key graduate skill of self-reflection. The first question is on how well one thinks they have met the objectives they, themselves had initially set at the beginning of the research project. The next question will require one to reflect on the business models used on the research project and how these have helped one in meeting the research objectives set.

The other questions are designed to demonstrate another key graduate skill; effective communication where one reflects on the project presentation, communication and the information gathering methods used. The last question is there for one to reflect on the overall research process, giving one time to project how this process would be helpful in future roles and projects.

On the backdrop of explaining the characteristics of the skills and learning statement, the question is; does the Zidera Act mean sanctions to the nation of Zimbabwe? Before answering this question in technical terms, let me use the real friend story below to explain some simple, but fundamental principles of friendship.

Once upon a time, they were two friends. The first friend, Uja, was slightly well to do and mature as compared to his colleague, Zaim. Zaim had great potential for success as he had just been out of college where he had attained all the necessary skills. They all had families that were standard and in the course of their friendship, they occasionally went out to have a couple of drinks together.

In the course of time, Zaim started to show some strange behavioural changes. He started borrowing money from Uja and at the beginning in small amounts for what seemed to be good intentions and paid back these funds in good time. Suddenly, the amounts being borrowed got larger and their repayments delayed. Then, at the last instance of note, Zaim failed to pay back Uja the amount borrowed.

Uja then did his own research on the happenings in Zaim's life and discovered some shocking developments. Zaim now had two extra marital affairs; reports further said that he at times failed to pay bills at his official home, delayed the payment of school fees for his children and often went for days without going back home to his wife.

The next time when Zaim approached Uja to get a loan extension, the latter turned him away saying that he wasn't able to extend any additional finance owing to his household mismanagement findings. To add on to this, Uja told Zaim that he had also told all his other friends with money not to extend any form of financial assistance to him until he reformed his ways. Zaim was much aggrieved by this and hated Uja.

In the course of time, Zaim then found another friend Cian who was a rival to Uja, but who was also well to do. Cian seemed not much concerned about the affairs of Zaim's household, so he extended loans to him which he expected to be paid back in good time.

In the course of time, Cian then found a gap in the household of Zaim where at most times the latter would be away with some of his extra marital affairs, Cian found ways to be with Zaim wife unnoticeable. This you can verify with some of the official figures on the externalisation issue, The End.

In Zimbabwe, a great part of the population is exploited to certain opinions and perceptions on political and international matters by political actors owing to lack of general civic education. I estimate that 90%, if not 98% of Zimbabweans are yet to read the Constitution of the land or the Zidera Act, but have perceptions and opinions about these documents fed to them by either newspapers or political actors who have vested, but sinister interests in these matters.

The ability to form personal opinions about these key issues that affect our country is thus lost to these political actors and for our country, mainly to lawyers who constitute a greater proportion of political formation membership.

The law profession can argue some narrow and weak positions on grievances on either technicality, procedural or precedent rulings, thus win with those weak positions. The problem is that the profession belongs to a non-productive sector. We are now in a situation where it's just political argument after argument with nothing being achieved and produced in the country. The general population has been turned into political victims, subject to rising poverty level as the country has consistently been in a state of a political courtroom.

According to my own interpretation of the Zidera Act 2001, the issues highlighted were that of a friend concerned with the affairs of a peer who's democratic, and governance conduct was rapidly deteriorating. Issues cited in the Act included the economic mismanagement of the then government, the breakdown in the rule of law, undemocratic practices that were on the rise, inability of the country to meet international lending organisations loan repayment terms, lack of respect to ownership and title of property, costly deployment of troops to the Democratic Republic of Congo and the involvement of the military in domestic affairs.

In my view, these concerns were genuine for they required us as Zimbabweans to look internally at how our own previous aspirations and objectives stated in all of our governance and economic blueprints adopted since independence had fared using the principles of the Skill and Learning Statement I alluded to at the beginning of the article.

Zimbabwe has had the following economic blueprints since independence; 1980-81 Growth with Equity; 1982-1985 Transitional National Development Plan; 1986-90 National Development Plan; 1991-95 Economic Structural Adjustment Plan (ESAP); 1996-2000 Zimbabwe Programme for Economic and Social Transformation (ZIMPREST); 2001-02 Millennium Economic Recovery Programme (MERP); 2003-06 National Economic Revival Programme (NERP); 2007 National Economic Development Priority Programme (NEDPP); 2008 Zimbabwe Economic Development Strategy (ZEDS); 2009, Short Term Emergency Recovery Programme (STERP); 2010-12 (STERP 2); 2013-18 Zimbabwe Agenda for sustainable Socio-Economic Transformation (ZimAsset) and now, the Zimbabwe is Open for Business mantra. All these policies have being adopted one after the other without careful insight and self-reflection on how the previous policy had fared.

It is always natural for one to hate and label those that come with good advice and thus find a strong counter argument against them, especially if the recipient of the advice is in the law profession.

The then Zanu PF-led government, with a strong war veteran representation counter argument to the Zidera Act was that the law had been designed to reverse the land reform programme. As I will explain below, the then land reform programme had been implemented in a reactionary fast-track pace since the June 2000 period to the law enactment period.

Due to this counter argument the other circumstantial events and trends that culminated in the Act have now been forgotten, leaving Zimbabwean policy formulators and the nation's political actors to miss out on the opportunity to self-reflect and get lessons of worth for future policy formulation and implementation strategies.

That is typical behaviour for persons in the law profession for it is designed to fight and move from one case to the next, only looking back to see if there were cases of precedents to apply to the current case. This is opposed to the principles of my profession which looks back to analyse trends and the circumstances that surrounded them, whether they be favourable or unfavourable but with the aim of finding solutions for future trends.

Let me now put things into context and thus briefly highlight some of the other variables present in the period preceding the enactment of this law. I will not deal much with issues to do with economic mismanagement as these are already covered in my book The next Zimbabwe in chapter two titled The Old and New Economy. I will start with the economic challenges that were now present in the country at the beginning of 1997 where they were rising food prices, fuel shortages, rising levels of unemployment and discontent in the population shown by the rise of civil disobedience through countrywide strikes.

The critical bones of contentions came from the war veterans who felt greatly excluded from economic activity and a feeling of betrayal by the then government on the land reform issue. The government had moved at a slow pace under the willing buyer willing seller arrangement of the then Constitution. Another critical issue was of the abuse of funds under the War Victims Compensation Act of 1993 where the Chidyausiku Commission report of August 1997 pointed to major payouts going to senior Zanu PF officials.

The stage was set for a major confrontation between Zanu PF and the War Veterans Association, thus the then President had to act. In September 1997, all veterans were given a payout of Z$50 000 in an attempt to silence them but two critical trends emerged from there. The economic trend of the country worsened since these funds were not economically backed in any form, thus the inflation rate spiralled. The second critical trend was the empowerment of the War Veterans' Association that resulted in it strongly affecting government policy up to today.

If self reflection had taken place following the Chidyausiku report, a reform process would have helped to stamp out corruption in Zanu PF and government, realign the economic trajectory of the country and most importantly produce reforms that would have expedited land reform. However a reactionary, quick but dangerous solution was applied that protected the party and war veterans' interests at the expense of the nation.

In the same 1997, civil society groups organised themselves along the National Constitutional Assembly (NCA) demanding economic, social and political reforms including advocating for a new Constitution.

Despite all these domestic pressures, in June 1998 the government sent the first group of 11 000 soldiers to the Democratic Republic of Congo to help President Laurent Kabila fight off rebels in his country. This is also highlighted by the Zidera Act as a major area of concern requiring self reflection.

In 1999, the MDC was formed presenting a challenge to the Zanu PF-led government promising national renewal on the economic, political and social front with that also promising on land reform. The party promised a people-driven process that aimed to acquire 6 to 7 million (hectares) of land through acquiring underutilised, derelict and multiple-owned land for redistribution to ordinary landless Zimbabweans.

The MDC's proposals were a major challenge to the Zanu PF-led government's land reform programme that had moved at a slow pace especially at a time were its relationship with international donors had collapsed with the government being blamed for donor fund mismanagement and disregarding guidelines agreed under The International Donors' Conference on Land Reform and Resettlement of September 1998 held in Harare. The reasons cited by donors were the governments' lack of transparency and abuse of donor funds with major benefits going to senior government and party officials at the expense of the common man.

A national referendum for a new Constitution drafted by a government-led commission as opposed to the process that had been previously led by civil society (NCA) was held in February 2000. The Zanu PF government lost to the vote "no" campaign of the MDC. In reflection the Zanu PF loss of the 2000 referendum gave rise to three trends that continue to haunt Zimbabwe to this day; that is political intolerance, the military being involved in domestic affairs and a massive irrational policy formulation and implementation of a framework based on a reactionary mindset.

The same 2000 in June, the country was to have parliamentary elections thus the war veterans and Zanu PF government reacted to this MDC threat by accelerating the land reform. This was the start of the reactionary fast-paced land reform programme where for the first time the army started involving itself in the internal affairs of the country.

Reflecting on the outcomes of the land reform programme to the present day; what I can say is that the land is now in the hands of us the black population. The areas of alarming concern currently are on our policy formulation and implementation processes. Due to the political tensions that are now ever-present from having these two strong political parties; the question is has our policy formulation and implementation processes being turned to a constant mode of being reactionary? From my own observation, the system is that when one political party proposes a good policy programme due to this tension the other will react in some ways that might amount to sabotage, thus removing the rational element needed to move the country forward.

Let me now fast forward to this year where the Zidera Amendment Act was passed on August 6, 2018. The questions are what clauses have changed; which clauses have been added and what do all these amendments mean for the nation of Zimbabwe?

In general, the 2018 amendments are meant for all Zimbabwean political players to conduct a broad-based self-reflection process just as the initial 2001 Act had recommended.

Now on the clauses that have changed; firstly, there has been the removal of the costly deployment of troops to the DRC replaced by the line pointing to the private appropriation of public assets, the amendment appreciates that in October 2016 the Zimbabwean government cleared its longstanding arrears with the IMF and issues to do with the land reform programme were removed from the Act.

The biggest changes came on election and pre-election conditions, with the amendment touching on the voters' roll by asking for the biometric digital and paper format to be released to the public without cost before any poll and calls for measures to ensure the independence of the electoral management board. The Act highlights the need for the Zimbabwe Defence Forces to neither be involved in the election process in whatever form and for candidates competing in an election to be allowed full and equal access to State media.

The new issues in the amendments to which I will expagorate further below are on updating all statutes that are not compliant with the 2013 Zimbabwean Constitution, calls are also made for government to uphold major elements of the 2013 Constitution like on devolution, human rights and freedoms of citizens guaranteed by it. The Act also calls on diamond revenue to be accounted for and immediate actions be taken to unify the people of Zimbabwe as evident in the 2018 election result on how divided the country is and lastly, calls on the government to enforce the Sadc tribunal ruling of 2007 to 2010 regarding disputes on employment and human rights cases when dispossessing commercial farmers and agricultural companies.

The first critical issue for us to address is on the updating of all prior statutes for them to comply with the 2013 Constitution. On this issue let me take us back to the problems of 1997 where a critical group in our population, the war veterans felt a trend of being excluded from economic activities and had public property and benefits due to them being appropriated to private use by government officials. The same exclusion and exploitation feelings then are the same feeling being felt by the majority of Zimbabwean youths today. These feelings showcased themselves on August 1, 2018 in Harare. Due to frustrations of desired election results and a situation of delay in result announcement, the youths showed their anger and need to be included in economic activities in violent ways.

The major problem on this day was the reaction of the government as it used a statute that is not consistent and compliant with the constitution of 2013, hence deployed the military using the (Posa) Public Order and Security Act. The (Posa) Section 37 clause used to deploy the military through a request by the commissioner of the police and approval made by the Home Affairs minister without the approval of the president as seen from the initial findings. This procedure is not in line with the Constitution. This trend of deploying the military without the President's authority had its original sin in November 2017 and now developing into a trend to which we have to find atonement before this violation persists and causes other major tragedies in future.

I have heard various interpretations from Lawyers representing Zanu PF; the Advocate Chinyoka argument that says because the MDC endorsed deployment under restore legacy henceforth deployment without the Commander-in-Chief on 1 August 2018 is then justified.

One high profile example is from Advocate Lewis Uriri who defended Zanu PF and the President so dearly on the MDC Alliance election challenge at the Constitutional Court because his meal came from Zanu PF on that day. Just a week after defending Zanu PF, Uriri was in court again, but now defending Professor Levi Nyagura of the University of Zimbabwe against the President. The arguments were now against the President for appointing the anti-corruption commission and commission to investigate the post-election violence without an Act of Parliament as his meal now came from Nyagura.

Let me now step into the law profession for a while. The 2013 Constitution clearly states that the deployment of the military is guided under section 213 (1) and (2). The section says only the Commander-in-Chief of the Defence forces has power to authorise the deployment of the military and power to determine the operational use of the military.

Under clause (2) it says with the authority of the President the Defence Forces may be deployed in Zimbabwe (a) in defence of Zimbabwe, (b) in support of the Police Service to maintain public order and (c) other civilian authorities in the event of an emergency or disaster. The other instance of deployment is through a two-thirds majority vote of the total National Assembly.

To have a clear understanding of how consistent the Constitution places this responsibility to the deployment of the military on the President's hands and only the President is when you review section 100. Section 100 is generally centred on persons who are given authority to act in capacity of the President (Acting Presidents) when he/she is away. The section clearly states that these persons have all other power of the President except powers (a) to deploy the military, (b) enter into any international convention, treaty or agreement, (c) to appoint or revoke appointment of a Vice-President, Minister or Deputy Minister, and (d) reassign or assign members of the executive or the administration of any Act of Parliament.

The sin of November 2017 was further exacerbated by a dangerous precedent set from the ruling made by the other arm of government the judiciary in a ruling made by Judge President Justice Chiweshe. In a petition brought to the High Court by parliamentarians Joseph Evurath Sibanda and Leonard Chikomba who argued that the military intervention was constitutional. In the judgment, Justice Chiweshe said that the intervention was necessary to stop the elected first respondent's constitutional function, seeing that his duties were now being influenced by those around him, who were not elected using section 212. The judgment gave the second respondent the right to act in the manner that allowed him to deploy the military without orders from the Commander-in-Chief. This judgment has created an unfavourable trend through this precedent ruling and issues surrounding this must be dealt with immediately.

The issue of setting up a commission of enquiry with foreign representatives is another waste of resources as this will not achieve anything concrete as this is just a show to the international community that something is being done. Rather, an internal process with all of Zimbabwe's political and civil society players must be conducted with a common objective of self reflection. This waste continued with the opposition MDC Alliance hiring lawyers from South Africa and Nigeria to be their representatives in their ConCourt application. Why and how do we continue to spend these little resources we currently have on things we already have capacity to conduct for ourselves?

In my previous opinion writings, I have always been of the view that the November 2017 sin could have been circumvented by removing two clauses from our current Constitution.

The President is aware of these clauses as these were used against him before by the former President. At an election rally before the recent polls, the President points to these tools as he said: "I am aware of plans within my party Zanu PF that when I resoundingly win the presidential and parliamentary election, some members want to remove me using the impeachment mechanism. However, our Constitution has tools that when we see that you are no longer a member of our party we have that right to chase you out of the party and Parliament altogether." Literally speaking, the first tool is section 129 (K) and the other is the clause that says the Vice-President serves at the pleasure of the President.

If political parties and their presidents continue to be allowed to use these tools political solutions will be difficult to apply to party disputes. This situation will warrant the military to continue to be used to settle political issues, especially in Zanu PF.

The other two major issues highlighted by Zidera 2018 to which I will combine in my explanation is that of government implementing commitments of the 2013 Constitution like devolution. The other is on the government taking immediate actions to unify the politically divided country.

On these issues, I am very aware of the President's comments borne from instincts of being a lawyer and thus use precedents. The President refers to the case of former British Prime Minister Harold Wilson who won the British election of 1964 by just four seats. Wilson formed a government without the opposition. Here is just another case of how lawyers make decisions. The President and Zanu PF are yet to look back through a process of broad-based political self-reflection establishing trends on how this politically polarised situation has fared for Zimbabwe over the last 19 years.

Never mind the intentions of the President on progressing this country if no self reflection and attempts to unify the nation are done urgently, the same old divisional challenges will continue to haunt us.

On the issue of devolution, just observing the distribution of the final election tallies and ministerial appointment, especially on the provincial ministry appointments, challenges arising from recent history will continue to persist on this issue. In all the major cities, the likes of Harare, Bulawayo or even Mutare, the opposition MDC Alliance got most of the votes in these cities and provinces. In an ideal devolution setup, the opposition has the mandate to control and influence the direction of resources in those critical provinces.

The worrisome part about provincial ministerial appointments made by the President are attempts by the Zanu PF-led government to maintain control in places that it has no mandate by saying that the appointed provincial ministers will now exercise executive powers on elected provincial councils. This is total rubbish, for we can reflect on the recent chaos in Harare where former town clerks like Mushore and Ncube had executive powers exercised on them, thus had their tenure revoked by the executive, not the elected power of that area. The power to make appointment and revoke appointment of these key positions lay in another ministry called Local Government that might be occupied by sometimes elected individual yes, but the member might not be from that area.

If the Bill governing devolution is not borne from a broad-based consultative process and the Zanu PF majority Parliament passes the Bill without the opposition input, the same problems of yesterday will continue to exist.

The other issues requiring self reflection cited in Zidera are on human rights violations in the Gukurahundi and Murambatsvina events to which I will not explain much. The importance of the Murambatsvina review is to assist with the current issue where the government is trying to clean up our major cities that are now in a bad state. The Gukurahundi self-reflection will assist the nation to heal on grievances that lay in the various tribes of Zimbabwe.

Reviewing Zidera has importantly highlighted to me how and why other countries achieve so much and continue to be successful in their agreed policy programmes. You can really see the level of honesty in the processes evident in the information gathering methods used and issues cited in the initial and subsequent Zidera Act. What really got me inspired was the self reflection process the Americans conducted, expressed in the amendment of 2018. Variable and circumstances that had changed in the Zimbabwean context we acknowledged with some being removed for that policy. The variables and circumstances that arose between the seventeen years had to be added to the Act all in an attempt to aid us Zimbabweans to conduct our own honest broad-based self-reflection process.

The United States process involved senators meetings with the countries' opposition after the November 2017 events, various visits to the country prior and during the election before the final Bill and Act being passed by President Trump.

White people know that we African people always like to lie to ourselves and exercise wishful thinking in our conduct. So I will end with words from former South African President under apartheid rule PW Botha to his cabinet in 1985 and I quote "We are not obliged even the least to try prove to anybody and to the blacks that we are superior people. We have demonstrated that to the blacks in 1001 ways. The Republic of South Africa that we know of today has not been created by wishful thinking. We have created it at the expense of intelligence, sweat and blood. We do not pretend like other whites that we like the blacks. The fact that blacks look like human beings and act like human beings do not necessarily make them sensible human beings. Hedgehogs are not porcupines and lizards are not crocodiles because they look alike. If God had wanted us to be equal to the blacks, he would have created us all of a uniform colour and intellect. But he created us differently; Whites, Blacks, Yellow, rulers and the ruled.

"Intellectually, we are superior to the Blacks; that has been proven beyond any reasonable doubt over the years. I believe that the Afrikaner (Boer) is honest, God-fearing person, who has demonstrated practically the right way of being. By now everyone of us has seen it practically that the Blacks cannot rule themselves. Give them guns and they will kill each other. They are good in nothing else but making noise, dancing, marrying many wives and indulging in sex. Let us all accept that the BLACKMAN is a symbol of poverty, mental inferiority, laziness and emotional incompetence. Isn't it plausible? Therefore that the Whiteman is created to rule the BLACKMAN and here is a creature (BLACKMAN) that lacks foresight. The average Black does not plan his life beyond a year."

Stay Blessed

Terence Simbi writes in his personal capacity