What is the Government’s policy on indigenization? The recent spat between Morgan Tsvangirai and Saviour Kasukuwere leaves us all bewildered. First, Kasukuwere tells the world that the government has “confiscated” all the mines and they have forfeited their assets and earnings to the state. Then the Prime Minister tells the world to ignore the Minister as this is not really government policy. Finally the Sunday Mail tells the world that Morgan is a plagiarist for quoting verbatim sections of a legal opinion from an organization that is “hostile” to the government.
If I were a business man or the owner or shareholder of a mine, I would be wondering what the heck is going on. Is there one government position or two? Do I believe the Prime Minister or a Minister? And if I go back through time and look at all the comments prior to the past week, weren’t they both in agreement that indigenization is a “good thing”? Just like land reform was a “good thing”?
As Julie Andrews says, let’s start at the very beginning! And start with the basis for this “government”, the Global Political Agreement (GPA) and Constitutional Amendment number 19. And let’s ask the question about whether the “Minister” is actually a Minister. Saviour Kasukuwere was one of the 10 extra Ministers sworn in by the President in February 2009, and these Ministers are illegal since the Constitution says we can only have 31 Ministers, and not 41. The matter is pending in the Supreme Court after a very strange judgement in the High Court by Justice Chiweshe.
It seems that the distinguished judge thought that it was not ultra vires the Constitution to have more Ministers than the Constitution allows because to uphold the Constitution would upset the running of the country. Of course, why let a little thing like the law get in the way of government. By the way, the court case was instituted against the 10 offending Ministers, the President and the Prime Minister, and they were represented by none other than the Attorney-General: the very same Attorney-General that MDC-T would like dismissed and replaced! I suppose sometimes your enemy is your friend, but the deeper question – whether Kasukuwere should be making regulations at all has by-passed everyone.
Then, of course, we have the wonderful regulations made by the Minister. As RAU pointed out quite some time ago – Racketeering by Regulation – it is very doubtful whether the regulations would pass the scrutiny of the courts. These are probably unconstitutional in many respects (and the Parliamentary Legal Affairs Committee agrees), they exceed the powers granted the Minister by the Act itself, and anyhow the Act is so badly drafted that it is difficult to know what is meant in the Act in a good many respects. However, no-one in the government or the business community has thought it desirable to see what the courts might have to say on the matter: why let a little law get in the way of business. But given what was just said about the challenge to the number of Ministers, perhaps it is not a good idea to ask the courts to interpret the law.
And we haven’t even got down to the thorny question about who is indigenous? This is the really fun bit. According to the Act, this means a person who has suffered discrimination because of one’s race before 18th April 1980. However, it does not clearly specify that you have to be Zimbabwean, and thus anyone (presumably only in Africa) can be a discriminated person and ask for share of the Zimbabwean pie. The generosity of those drafting this legislation is boundless, and it is strange that half of Africa hasn’t made their way down here to get some diamonds or platinum.
But, of course, that was not what was intended. The intent was to create black economic empowerment, but this looked stupid 30 years after Independence: what was the government doing all this time if not empowering indigenous people? Or was it another ploy like the land? 20 years after Independence ZANU PF wakes up to the fact that people have still not got land – never mind that less than 1% thought that this was an important issue in 1999 when asked by the Afrobarometer – and 30 years after Independence ZANU PF realizes that there are minerals in the ground that the “people” are not sharing in. Like Chiadzwa, for example, where all the local people are “sharing” in the bounty through near slave labour.
If this all was not so serious, it would be a laugh a minute. The non-Minister makes some non-regulations for some non-people about some very real things. But that’s life in the topsy-turvy land of Zimbabwe, and we haven’t even got round to talking about the non-constitution ahead of the non-elections!