Issue 507 of the MDC Today (28.01.13), quoting Tendai Biti’s criticism of the indigenisation programme, is likely to draw snorts of derision from the companies affected by Minister Kasukuwere’s policies.
Kasukuwere demands that non-indigenous companies dispose of 51% of “their shares” to black Zimbabweans. This demand immediately appears to be nonsense to lawyers and those with any accounting or business skills. Companies do not own the shares – shareholders do. One cannot legally compel companies to dispose of that which they do not own and over which they have no control.
This is recognised by the Indigenisation and Economic Empowerment Act which is only intended to apply to share transactions and provides that where shares change hands on account of mergers, demergers, and unbundling, the result transaction must leave 51% of the shares in the hands of Indigenous Zimbabweans. The Regulations are only in conformity with the Act where they provide for this. The remaining 80% of the Regulations are not permitted by the Act and invalid.
Yet, rather than stating as much, Biti picks on merely one of many invalid provisions of the Regulations, the Community Share Ownership Schemes, and points to the fact that these are not provided for in the Act. In so doing, Biti follows in the footsteps of the MDC-dominated Parliamentary Legal Committee, which, despite having been provided with cogent legal opinions on the matter to the contrary, has approved the broad tenor of Regulations as constitutional and in conformity with the Act, rather than rejecting them as they ought.
Even more astonishingly, Biti expresses wonderment that companies are parting with cash in order to deal with the stream of unlawful directives that emanate from Kasukuwere and the NIEEB. Yet the MDC-T is an active participant in this extortion. Several government departments now demand compliance with these directives, and the invalid Regulations, before they will process paperwork for foreign and investor companies – for example, the Zimbabwe Investment Authority and the Immigration Department, to name but the first two which come to mind. Companies wishing to renew their Investment Licences through the Zimbabwe Investment Authority are told by the Board to get clearance from Kasukuwere first.
There is no law which requires this.
This Board falls under an Act administered by the MDC-T Minister of Economic Planning and Investment Promotion. Yet it continues to enforce Kasukuwere’s unlawful directive in this regard without a murmur, let alone any action, from the MDC-T Minister, Elton Mangoma.
Similarly, those seeking investor residence permits are required to gain clearance from Kasukuwere. The permits fall under the Immigration Act, co-administered by an MDC-T Minister, Theresa Makone, who likewise has done nothing to counteract this unlawful requirement.
So why is Biti surprised when companies find that the only way out is to make a donation which will assist ZANU PF in dispensing largesse prior to the elections? What surprises the affected companies is that the MDC-T chooses to whinge about the indigenisation policies while simultaneously to aiding and abetting the extortion, rather than doing that which is well within its power to bring it to an end.
29 January 2013