Attempts to scuttle indigenisation

If there is one perennial truth about revolutionary processes, such as the current indigenisation reform programme, it is that they typically endure bruising challenges during which some battles may be lost before the war is won.

This truism explains the raging demonisation of the indigenisation programme that has preoccupied some malcontents in our midst over the last few weeks with specific reference to the Zimplats transaction whose precarious promise is now in jeopardy under the cloud of treachery posing as due diligence.
 
Witness how what started mid last month as an alleged media expose of alleged corruption in the implementation of the Zimplats Indigenisation Transaction has now come full circle with growing indications that the alleged expose is in fact nothing but a spirited media scam that is yet to be exposed and whose main objective is to subvert the indigenisation policy as a whole in the vain hope of robbing Zanu-PF of the foundation of its revolutionary policy platform ahead of the forthcoming make-or-break plebiscite.

There are five critical and very important developments that not only attest to this truism but which also need to be dispassionately unpacked in order to understand and explain what is going on. These are that:

 Not even one out of some seven or so scurrilous allegations against the Zimplats Indigenisation Transaction that were sensationally and recklessly made in the media by people who should know and do better has been either sustained or proven.  To the contrary, some of the false allegations'such as that British courts will have jurisdiction over the Zimplats transaction'have been quietly dropped while others such as that Brainworks had "amassed" and "looted" over US$45 million that had been allegedly paid to the consultancy firm have been scandalously dropped with no explanation or apology and have been replaced by new claims that Brainworks billed for US$17 million which has not only been paid but whose payment is in dispute between Zimplats and the National Indigenisation and Economic Empowerment Board (Nieeb).

    Some three weeks ago Finance Minister Tendai Biti who has not minced his dirty words against the indigenisation reform programme - especially the community share ownership schemes - has clandestinely approached Implats in Johannesburg and threatened them with all manner of punitive fiscal measures if the company which has majority shareholding in Zimplats does not pull out of the term sheet it signed with Nieeb on 11 January 2013.

    Last Wednesday and Thursday the Reserve Bank of Zimbabwe (RBZ) unprocedurally if not illegally summoned Zimplats with no reference to the Ministry of Indigenisation and Economic Empowerment to pressure the company to effectively get it to abandon its current indigenisation plan in favour of the so-called supply side model which does not require the indigenous population to take any equity on the basis of the discredited Maslow's hierarchy of needs.

    Last Monday and Tuesday Zimra visited the offices of Zimplats and Brainworks over a transaction which everybody now knows is yet to be finalised beyond the non-binding term sheet signed on 11 January 2013 apparently with a specific purpose of undermining community share ownership schemes that the Minister responsible for Zimra, Tendai Biti, has opposed in ways that have exposed his political agenda against the empowerment of Zimbabwean communities.

    Last Monday the Anti-Corruption Commission scandalously and corruptly sought to use false allegations reported by the Daily News but which that newspaper has failed to either sustain or prove to launch an ill-fated and illegal probe against Nieeb whose nefarious political agenda against Zanu-PF is conspicuous to anyone with a functioning mind.

Further elaboration of each of these five telling developments should help contextualise and explain the current onslaught against the indigenisation reform programme whose malice and falsehoods know no bounds.

The first development to take note of is that none of the seven sensational allegations that were initially planted some two weeks ago by the RBZ have been sustained or proven beyond amateurish smoke-and-mirrors.  None. For the record, those allegations about the Zimplats Indigenisation Transaction included that (1) the term sheet is a final agreement; (2) that the Zimplats transaction is inconsistent with Zanu- PF's indigenisation ideology of total ownership of the country's natural resources by the indigenous population; (3) that Zimbabwe's platinum resources have been undervalued under the transaction; (4) that the transaction requires the indigenous entities to pay 10 percent interest per annum; (5) that the transaction has been sealed without the necessary consultations in or approval by regulatory authorities in government; (6) that the transaction is to be adjudicated in London by British courts under English Law allegedly to the mockery of President Mugabe's stance that Zimbabwe will never be a colony, again; and that  Brainworks Capital, who are the transaction's indigenous advisors, have been paid or have looted US$45 million for their advice to the detriment of taxpayers.

As things stand right now, none of these allegations have withstood any scrutiny whatsoever and none of them will ever be proved or sustained beyond cheap propaganda. Out of the seven sensational allegations made some two weeks ago, five have been altogether abandoned as if they were never mentioned in the first place. Two are still lingering on in the most dishonest of ways. One of these two is the allegation made two weeks ago to the effect that Brainworks were paid or looted US$45 million from the Government through Nieeb. This has turned out to be untrue in every material respect. Faced with the untruth, its perpetrators have revised the allegation to now claim that Zimplats has refused to pay US$17 million to Brainworks for its advisory services on the Zimplats Indigenisation Transaction and they have claimed that this is a scandal when it is a pending issue for negotiation in the final agreements that are subject to approval by regulatory authorities.

The revised allegation is a startling acknowledgment that the claim that US$45 million had been paid to or looted by Brainworks was in fact false and criminally defamatory.  While the revised allegation still maintains that the US$17 million charged by Brainworks will be charged to taxpayers, there is absolutely no evidence of that from any source whatsoever including from the widely publicised Zimplats letter which clearly indicates that there's a dispute between Nieeb and Zimplats about who will pay Brainworks, which dispute is yet to be resolved.  The suggestion that the dispute over the payment of the US$17 million means that taxpayers will foot the bill is a farfetched falsehood because the worst case scenario is clearly that the shareholders of an indigenised Zimplats will foot the bill, failure of which Brainworks will have to bite the dust.

It should go without saying that the difference between shareholders and taxpayers is as obvious as not to warrant any explanation yet the lie has been told that taxpayers will foot the bill. While the Zimplats letter disowning the Brainworks invoice was highlighted and celebrated by opponents of the indigenisation reform programme who interpreted it to mean that Minister Saviour Kasukuwere and Brainworks were "badly exposed", the simple truth is that the letter confirmed the fact that the Zimplats Indigenisation Transaction has not been finalised and that the term sheet signed on 11 January 2013 only represents non-binding work in progress whose finalisation is still up in the air subject to a host of issues including approval by some of the same regulatory authorities that are behaving badly before the fact. More specifically, only a fool who does not understand corporate politics will take the Zimplats letter on the payment of advisory services as the final word on the matter. It goes without saying that Nieeb will respond and the beat will go on. Just watch the space.

The second development worth of note in connection with the current onslaught against the indigenisation reform programme is that some three weeks ago, and in anticipation of the carefully planned, co-ordinated and choreographed so-called media expose of alleged but unproven corruption and looting in the Zimplats Indigenisation Transaction, Finance Minister Biti approached Implants and threw spanners to deter Implants from getting Zimplats to finalise and implement the term sheet that Zimplats signed with Nieeb on 11 January 2013 with a view to concluding it by June 30, 2013.  The irrefutable evidence on this is there for anyone to see. Let Minister Biti say "nyo" and all hell will break loose.   Otherwise this is a story yet to be told and it shall be told in the same way as the sun shall rise tomorrow.

In a very disappointing way, the third development that is central to the unfolding saga of orchestrated opposition to the indigenisation reform programme, the RBZ summoned Zimplats last Wednesday and Thursday and abused its institutional power to scare and frighten the company from proceeding with the implementation of the term sheet it signed with Nieeb on January 11 2013. More specifically but rather astonishingly the RBZ, among other scare tactics not worth mentioning, charged that Zimplats should not have signed the term sheet without its prior approval. This is astonishing and very unfortunate because the RBZ has previously said it is a statutory advisor to the Government. But surely, there must be a difference of day and night between advising the Government and advising or directing the private sector of which Zimplats is but only a part.

It is one thing for the RBZ to assert that Nieeb should have consulted it before signing the term sheet but quite another thing for the same central bank to charge that Zimplats should have sought its prior approval before signing the same term sheet. On what basis? Under what law? Is the RBZ also purporting to be advisors to Zimplats in the same way it is advisors to the Government? Is that not an illegal conflict of interest? Does the RBZ not know that the Zimplats has a board which, in terms of the Companies Act, is the appropriate statutory authority to approve the term sheet as a framework of issues to be agreed upon before reaching substantive agreements that are subject to the approval of regulatory authorities that include the RBZ?

Apart from inappropriately and illegally seeking to advise Zimplats on its term sheet with Nieeb, the RBZ falsely claimed in its meetings with Zimplats last Wednesday and Thursday that it has authority to approve the valuation of assets of an indigenising company. This claim is false and has no factual or legal basis. It is strange that Government advisors can also claim to have a decision veto on matters that are in the decision discretion of the Government. The valuation of any asset or resource is subject to the market and not to the whims and caprices of malcontents whose harmful political agenda is too apparent for all to see.
 
The fourth development that should cause serious concerns among progressive forces is that last Monday and Tuesday Zimra visited the offices of Zimplats to ostensibly determine whether the company had paid any tax for the US$10 million donation it made to the Mhondoro-Ngezi-Zvimba Community Trust. Zimra authorities shockingly maintained that the donation was a dividend and thus subject to 15 percent withholding tax that Zimplats should have deducted as an agent of tax authorities. What dividend?

Put simply, Zimra authorities who visited Zimplats last Monday and Tuesday wanted the Mhondoro-Ngezi-Zvimba Community Trust to pay tax on the $10 million donated to the Trust by Zimplats on incredulous grounds that the amount was not a donation but a dividend to the community which is expected to hold 10 percent of Zimplats should the indigenisation transaction succeed. It is as strange as it is shocking that Zimra wants the Mhondoro-Ngezi-Zvimba community to pay tax as shareholders of Zimplats when they are not shareholders given that the Zimplats Indigenisation Transaction is still subject to negotiations and is thus yet to be finalised. The fact that Minister Biti has attacked community share ownership schemes makes the Zimra tax attack on the Mhondoro-Ngezi-Zvimba community more than suspicious.

Perhaps the most shocking fifth development is that last Monday on February 25 the Anti-Corruption Commission sought to secure documents from Nieeb in a manner and against the background of a public scenario that smacked of gross and intolerable corruption by the very same body that has the constitutional responsibility of guarding against the very scourge of corruption it exposed itself to.
On February 28, the Daily News reported that "the Zimbabwe Anti-Corruption Commission (Zacc) says it has opened investigations into what is turning out to be one of the biggest scams in post-independence Zimbabwe.

"Zacc spokesperson Godwills Shana confirmed yesterday the anti-corruption commission body was probing 'Nieebgate' scandal after noting the Daily News' exclusive exposes on the matter".

It has to be acknowledged that this indeed may very well be the biggest scam since post-independence Zimbabwe because never before in the life of Zimbabwe's independence has any regulatory authority used a section of the media to manufacture and peddle such blatant and malicious lies as have been witnessed against the indigenisation reform programme. This is definitely a first and hopefully also a last since Zimbabwe's heroic independence.
 
A shameful footnote to this sad chapter is that there's an affidavit that is publicly circulating in some media circles favoured by the malcontents who are fighting the indigenisation reform programme signed on Monday February 25 by Sukai Tongogara ' the general manager of investigations in the Zimbabwe Anti-Corruption Commission who scandalously and corruptly averred under oath that "upon receipt of reliable information (namely and predictably from the Daily News), there are reasonable grounds that Abuse of Duty as a public officer as defined in Section 174 of the Criminal Law [Codification and Reform] Act, Chapter 9:23 was committed in Harare. I do hereby apply for a search warrant to be issued so that the following documents are secured in order to assist the Zimbabwe Anti-Corruption Commission in its investigations:
(i) Register of all Mining Companies that have complied with the Indigenisation and Economic Empowerment Act as at this date.
(ii) Copies of any Agreements entered into between the Mining Companies and/or the Government and the Communities.
(iii) Contract documents concerning the engagement of Top Harvest (linked to Mutumwa Mawere) to render Consultancy Services on Indigenisation to the Government.
(iv) Contract documents concerning the engagement of Brain Works to render Consultancy Services on Indigenisation to the Government.
(v) Community Ownership Trust documents concerning Unki Mine, Mimosa Mine, Zimplats, Murowa Diamonds (only launched on February 21 in the middle of the false storm) and;
(vi) Any other documents that may have relevance to the above-mentioned (thereby disclosing the fishing nature of the search warrant in the hope of mining documents).

It is unimaginable how such a scandalous and manifestly corrupt affidavit can be sustained in any court of law. In the first place, it is common cause that Section 14(4) of the Anti-Corruption Commission Act (Chapter 9:22) provides that an officer of the Commission who, like Sukai Tongogara, intends to make any search, entry, or seizure for purposes of the law should (a) "notify the officer commanding the police district in which the officer intends to make the search, entry or seizure and (b) be accompanied by a police officer assigned to him or her".

The fact that Sukai Tongogara and those working with and behind her had no qualms about getting her to simply sign a scandalous affidavit and yet they were unwilling or unable to enlist the support of the Zimbabwe Republic Police  as required by the law shows beyond any reasonable doubt that the action against Nieeb intended by the Anti-Corruption last Monday on February 25 was baseless, illegal, corrupt and therefore criminal and constituted criminal abuse of duty that needs to be investigated by relevant authorities in terms of the very same section of the Anti-Corruption Act that Sukai Tongogara illegally sought to use against Nieeb without disclosing any cause and without following the law but hoping to succeed on political grounds.

It is also notable that the source of "the reliable information" that Sukai Tongogara claimed to rely on in her scandalous and corrupt affidavit that can never be upheld by any court of law is the Daily News which confirmed as much in its lead story published on Thursday February 28 in which it reported that "Zacc spokesperson confirmed yesterday that the anti-corruption body was probing the 'Nieebgate' scandal after noting the Daily News' exclusive exposes".  Since when in a constitutional democracy do exclusive lies replace the rule of law? Developments around the Zimplats Indigenisation Transaction are very revealing and the time has come for relevant authorities to smell the coffee and to take notice of the unfolding media scam whose very clear but scandalous agenda is to scuttle the whole indigenisation thrust and under the false cover of due diligence.