FOSMM WHATSAPP THREAD ON 19 NOVEMBER 2016 – Constitutional Talk

  1. [4:59 AM, 11/19/2016] +1 (780) 838-1646: Cde Ras: nothing has gotten into my mind or pockets lol
  2. [5:06 AM, 11/19/2016] +1 (780) 838-1646: Consttn says Parly’s primary law making power must not be delegated. Hwever Parly can delagate power to make SIs. problem is Consttn does not prohibt SIs from amending a principal Act. Thats my argument
  3. [5:08 AM, 11/19/2016] +1 (780) 838-1646: So as we all know Bob used SI to amend the principal Act and there is no Constnal provision prohibiting that
  4. [5:10 AM, 11/19/2016] +1 (780) 838-1646: So all these arguments that an SI or a Regulation or PPTMA can not amend principal Act cld be sensible and logical but as we may all know, Constitutionality of something is not based on whethrr what was done makes sense or not but rather on whether what was done is consistent with the Consttn or not
  5. [5:13 AM, 11/19/2016] +1 (780) 838-1646: in my view to prevent all this, the Consttn shld have prohibited SIs from amending an Act of Parly as well as Consttn.It shld also have clearly prohibited PPTMA from being invoked to amend any Act of Parly. That was not done and that gives politicians space to manouvre in these kinds of situations
  6. [5:16 AM, 11/19/2016] +1 (780) 838-1646: In any case, what is “Parliament’s primary law making power”? Is there an Act of Parly defining that? Courts will hv big room to interpret that statement.
  7. [5:17 AM, 11/19/2016] +1 (780) 838-1646: Finally we shld learn from these situations to improve the supreme law and Acts of Parly.Otherwise crafty politicians wl continue to capitalize on the ambiguilties of the supreme law
  8. [5:27 AM, 11/19/2016] MD Mawere: What is the limitation imposed in relation to law making?
  9. [5:32 AM, 11/19/2016] MD Mawere: The use of SIs in a normal functioning system cannot be dismissed but it can’t be habitually used to make it the norm Law to back bond notes gazetted | The Heraldwww.herald.co.zw
  10. [5:41 AM, 11/19/2016] MD Mawere: http://www.herald.co.zw/law-to-back-bond-notes-gazetted/
  11. [6:25 AM, 11/19/2016] +1 (780) 838-1646: Dziva: I fully agree.
  12. [6:27 AM, 11/19/2016] MD Mawere: Thanks. Perhaps we can ask the underlying premise on which the delegated law making powers are or should be exercised.
  13. What kind of morality should underpin this framework?
  14. [6:28 AM, 11/19/2016] +1 (780) 838-1646: very valid questions Dziva
  15. [6:33 AM, 11/19/2016] +1 (780) 838-1646: I think exercise of delegated pwr shld be underpinned on fairness and national interest/common good. However these shld be clearly defined so that there is a clear legally binding definition of what is fairness and common good. And there shld be clear punitive measures such as suspension or impeachement if one wrongly exercises delegated pwr
  16. [6:38 AM, 11/19/2016] MD Mawere: Can an unconstitutional act be cured by legislation?law
  17. [6:58 AM, 11/19/2016] +263 77 514 6759: No. The national assembly and all other organs of the state are subject to the constitution as the supreme law. Unless such amendment is allowed by the constitution itself such a process would be ultra vires the constitution therefore invalid. In my view it is only the constitutional court upon being approached which could make such a pronouncement and cause for amendment. I
  18. [7:00 AM, 11/19/2016] +263 77 514 6759: Though arguable, I have a similar argument though a bit different but similar argument which I have taken to the supreme Court I will update the group on the matter.
  19. [7:00 AM, 11/19/2016] +27 74 097 0906: We can agree that there are limits to the exercise of legislative powers whether exercised directly or temporarily through the agency of a President
  20. [7:11 AM, 11/19/2016] +27 74 097 0906: Are you aware that the morality of the impugned reconstruction legislation used in respect of SMM was premised on the following principles:
  21. The state is a superior creditor.
  22. The state comprises not an independent juristic person but all entities duly established in terms of legislation as juristic person. If you look at the regulations and the successor act, the state is not defined. This raises the question whether one Act or regulations can automatically and arbitrarily subordinate the operations of other laws. In this case, the reconstruction creates powers for the Minister of Justice and not the Court to appoint an Administrator in respect of a company that in the ordinary course of business may have a bill that is not due to a state entity. Without the knowledge and consent of the relevant state entity, the reconstruction law allows the Administrator to accept the claims of any such state entity as claims enforceable under the reconstruction legislation.

Let us go step by step.

  1. [7:24 AM, 11/19/2016] +263 77 257 3823: This is very powerfully thought out.
  2. We need what Norman had done to include this without any hesitation.

I’m impressed hey.

  1. [7:25 AM, 11/19/2016] +27 74 097 0906: Should we burden Norman or add our voice as ideas come into thought.
  2. [7:45 AM, 11/19/2016] +263 77 257 3823: He had come up with a draft and I’m saying can this be added on that.
  3. [7:47 AM, 11/19/2016] MD Mawere: Thanks. Let us be the change. Should we burden one individual at this stage or think aloud?
  4. [8:01 AM, 11/19/2016] +263 77 514 6759: That’s marvellous. The reconstruction also arrogates the administrator the sole responsibility to declare the reconstruction a failure with the court’s oversight role opening floodgates for abuse. The report on the progress of reconstruction was done more than six years ago and the administrator is simply enjoying the fruits from amnest
  5. [8:03 AM, 11/19/2016] +263 77 514 6759: Amenities making it abundantly clear that the process has failed but alas . It’s interesting I want to see what the court will say about the court challenge we filed so far
  6. [8:03 AM, 11/19/2016] +263 77 257 3823: When was the filing? What was the filing about?
  7. [8:04 AM, 11/19/2016] +263 77 514 6759: Without the court’s oversight role
  8. [8:05 AM, 11/19/2016] +263 77 514 6759: 2 months back. Seeking a declaratur on the failure of the reconstruction and to open gates for creditors to sue
  9. [8:06 AM, 11/19/2016] MD Mawere: Failure is part of implementation but we are trying to develop a better understanding of the morality informing the enterprise
  10. [8:06 AM, 11/19/2016] +263 77 257 3823: With which court?
  11. [8:07 AM, 11/19/2016] +263 77 514 6759: That’s another facet in my view it’s well conceived
  12. [8:07 AM, 11/19/2016] +263 77 514 6759: Byo high court
  13. [8:07 AM, 11/19/2016] +263 77 257 3823: Oh ok
  14. [8:09 AM, 11/19/2016] MD Mawere: Something that violates the constitution can never produce secure income. Do you think the cause of action makes sense? It is talking about the distribution of the proceeds of unconstitutional schemes.
  15. [8:31 AM, 11/19/2016] Tapuwa Chitambo: Schemes clothed by Presidential powers. Our challenge should be to question the limitations of these powers by the constitution.
  16. [8:39 AM, 11/19/2016] +263 73 214 5751: By Eddie Cross

Looking back over the past sixteen years since we started this fight with Zanu PF, there are three examples of their total failure to behave as a responsible governing Party that standout for me.

Eddie Cross

Eddie Cross

The first was Marange. In 2000 a young geologist, working for De Beers Diamond Mining Company, found diamonds in quantity along the banks of the Save River.

After extensive sampling and trenching he reported back to his superiors in South Africa that the find was of little value and should not be pursued. In 2006 he packed up his camp and went back to his home base leaving behind a Land Rover shell and some rubbish.

In London a group of white Zimbabweans watched the Ministry of Mines website and waited for the De Beers claims to lapse. When they did they flew out and took up the abandoned claims and resumed exploration. They were assisted by the discovery of a computer disc in the Land Rover shell cubby hole, which contained the results of 6 years of De Beers exploration. In six weeks they found diamonds of gem stone quality.

The discovery was disclosed in a notice to the London Stock market as it was going to influence the value of ACR Shares. The Minister of Mines was informed and immediately took steps to take the claims away from their rightful owners.

They protested, went to Court, won their case but it made no difference. A “diamond rush” ensued and over 40 000 small scale miners swarmed over the site extracting diamonds worth many millions of dollars.

When they woke up to the size and value of the diamond field, the Zanu PF Party took steps to take over the discovery – driving the thousands of small scale miners off the site with bullets, dogs and poison spray.

They then formed 8 companies – all with the State owned and controlled Zimbabwe Mining Development Corporation as a 50 per cent or more partner and started mining in earnest. Heavy duty earthmoving equipment was purchased together with large processing plants to extract the diamonds from thousands of tonnes of sand. An airport capable of taking passenger aircraft with a control tower and armed defense was constructed.

In the next 8 years they extracted 140 million carats of raw diamonds with a face value of $17 billion. A mere $600 million (0,42 per cent) found its way to the State coffers. The rest vanished. When auditors were finally ordered onto the site, they found 8 companies with run down and broken machinery and equipment. 60 000 hectares of mine dumps and excavations and combined losses before tax of nearly $100 million.

Had this discovery been made in Botswana, 70 per cent of the gross revenue from sales would have accrued to the State ($12 billion) and GDP would have grown by $48 billion over the 8 years – $6 billion a year or increasing the GDP per capita in 2015 from $14 000 to $19 000, confirming the position of Botswana as a middle to upper income State, the wealthiest State per capita in sub Sahara Africa.

Instead, Zimbabwe slid, in the same period to the position of the poorest country in per capita terms in Africa at $1200, 10 per cent of the average income in Botswana, a small piece of semi desert. In the process we over supplied world markets and drove prices down to the detriment of all other producers. Botswana was forced to draw on its hard earned reserves to make up the decline in the value of sales.

All along Zanu PF leaders understood exactly what should have been done at the start and once all the easy mining was done and they were left with the much harder and more sophisticated task of hard rock mining for diamonds, they announced that they were going to consolidate the 8 mining companies into one and start mining and selling diamonds on the open market.

Even then, they have completely messed up the new arrangements, there is still no transparency, the same collection of crooks is in charge and Zimbabweans still derive no benefit at all from what is perhaps the largest discovery of diamonds in the past century.

The second was ZISCO. At Independence in 1980 Zisco Steel was the second largest integrated steel plant in Africa. It employed some 6000 workers in a network of companies that produced rolled steel, long products, reinforcing rods and wire.

Half its output was exported. By 2008 it was a broken, almost abandoned shell, producing nothing but scrap metal for dealers. Its associated town, Redcliff was a shadow of its former self, short of water, a bankrupt Town Council and virtually all its residents unemployed.

The GNU changed all that – the new MDC Minister (Ncube) took up the challenge and negotiated with the third largest Indian steel maker to take over the plant, get it back up again and producing double its pre Independence volume of steel and steel products and developing a large iron ore mine to produce and export pig iron pellets for export in bulk to the world market – $10 billion dollars of new investment. The commodity cycle was at its peak and the project managers viewed the enterprise as a real opportunity.

In October 2010 the deal was signed by the State President watched by the Prime Minister. Then the project ran into Zanu PF. The Minister of Mines allocated the mining rights to the iron ore (40 billion tonnes or reserves) to army officers and Zanu PF heavyweights.

They in turn demanded payment of many millions of dollars for access to these mining rights that should have been simply part of the deal. A 4 year wrangle ensued, the commodity super cycle ended and the global markets for iron ore fell from $140 a tonne to $35. The deal with ESSAR collapsed.

Today all we have is an abandoned plant, derelict subsidiaries, caretakers on site and thousands of unpaid, workers who sit at home and do nothing. Zimbabwe imports all its needs from the world market in the form of finished products. The $500 million of accumulated debts and liabilities of the company are being assumed by the Ministry of Finance as yet another addition to our national debt burden.

Then there is the Fuel Pipeline. In 2010 the MDC Minister of Energy, identified the possibility of constructing a new pipeline for petroleum products from Beira to Harare and then on to Francistown and the Congo.

Six regional States bought into the project and negotiations were started with a South African Company that specialized in pipeline operations. The project, when full developed, would have been headquartered in Harare, would have employed the 400 000 tonnes of underground storage at Mabvuku and cost $3,2 billion.

The annual turnover of the project would have been $9 billion a year and it would have improved security of supply, provided for stocks of product and reduced the pump price of fuel across the entire region.

By the middle of 2013 the negotiations were complete; all that was needed was the Ministers signature following Cabinet approval. The 2013 elections intervened and a new Zanu PF Minister was appointed. He immediately accepted a bribe to switch the project to fuel trading companies in violation of the fundamental principles laid down by regional States for the project.

It is now 3 years since the project was ready for handover and nothing has been achieved. The deal is totally gridlocked by inter Party squabbles and fights over who will control the old pipeline that is being used to siphon off hundreds of millions of dollars into private pockets and fears that the new pipeline will put the old one out or business.

The combined loss to Zimbabwe in terms of capital investment from these three projects runs to over $15 billion – the loss in terms of annual output or turnover is even greater – potential annual turnover is estimated at $17 billion.

With the multiplier effect on GDP, this would have trebled the annual GDP of Zimbabwe from $14 billion to over $40 billion. Annual tax revenues of double the present level; all sacrificed on the altar of one man’s ego and his Parties greed.

It is my conviction that Zanu PF is totally beyond redemption and only a change of government can turn things around in Zimbabwe today.

– See more at: http:/in/nehandaradio.com/2016/06/01/three-examples-hopeless-failure/#

  1. [8:44 AM, 11/19/2016] +263 77 514 6759: The constitutionality of the act is undoubtedly unlawful but interests in the whole cause differ. All the same if the reconstruction act is declared unlawful gates will open for litigation against smm. Similarly if the reconstruction is declared a failure the same will result. Creditors especially workers are interested in recovering their dues and nothing more.there cause of action is the unendless reconstruction which barring them from litigating to recover their dues. The mine now is a university and an individual who is employed elsewhere but owed money will not labour much about constitutionality or otherwise but implimentation on the status quo. Be that as it may it is quite an immaculate idea wholesomely to challenge the constitutionality of the Act. For example the very proviso that requires a prospective litigant to approach another litigant before suing is abundantly unconstutional. And a lot more
  2. [8:59 AM, 11/19/2016] Tapuwa Chitambo: Mr Mudisi can u pliz explain further👇🏿

For example the very proviso that requires a prospective litigant to approach another litigant before suing is abundantly unconstutional. And a lot more

  1. [10:01 AM, 11/19/2016] +27 76 660 8500: Is that a ruling of the court on any matter? This morning something was bothering me friends in my sleep. This was the Legislative power delegated to any other body. It is clear that the legislature has power to legislate as it represents the people and whatever it legislate is therefore taken to represent the will of the people. These are the principles of Constitutionalism that they surrender their rights to do certain things like decide laws to representatives. Of however this body delegates such authority to any other person and the law so enacted infringes on the rights of many substantial then such law fails to pass master of constitutionalism and cannot stand as it violate the tenets of government as a representative of the people. Rights of many cannot be limited by those who have not been so mandated to do so. The Temporary Measures Act is ideal for the State of emergency and the need for urgency and therefore cannot be extended to economic problems which do not put the country’s security and sovereignty at risk. The Act is therefore flawed and must be challenged to be declared on those basis because it is on this premise that it was enacted. We need to act decisively in terms of these cases and attack relentless until the gvt of these thieves collapses.
  2. [10:08 AM, 11/19/2016] +263 73 411 3006: You are ignorant!!!
  3. [10:10 AM, 11/19/2016] MD Mawere: I am not sure how far this line of thinking will take us. The ideology is that the elephant in the room is rational and always acts in the public interest.
  4. [10:17 AM, 11/19/2016] +263 77 257 3823: @jnsmusara did you see the Herald story that the government have realized the foolishness of the SI on bond notes and have not done the right thing by gazetting an amendment bill before it’s taken to parliament?
  5. [10:47 AM, 11/19/2016] +263 73 339 4424: Mabhiza where are yu madzegwara
  6. [10:47 AM, 11/19/2016] +263 77 514 6759: There are two judgments to that effect however it was before the new constitution which guarantees equality and protection before the law as well as right of access to courts. If challenged under such constitutional arguments obviously they won’t survive.
  7. [10:49 AM, 11/19/2016] +263 77 514 6759: The failure to challenge some of these laws is not attributable to lack of will or knowledge but primarily it’s about resources and secondarily absence of willing litigants
  8. [10:53 AM, 11/19/2016] +27 76 660 8500: Okay I cannot claim I am not ignorant. Would it not help to educate me than just state that I am ignorant.
  9. [10:54 AM, 11/19/2016] MD Mawere: 👋🏾👋🏾
  10. [10:55 AM, 11/19/2016] +263 77 257 3823: We once had grounds for state of emergency as prescribed by the Old and new constitutions.constitution-coloring-page
  11. PPTMA is supposed to be the instrument for a state of emergency.
  12. [11:02 AM, 11/19/2016] +263 77 514 6759: State of emergence is the actual existence or a situation which may emmidiately lead to a state of emergency but honestly how would that arise at smm. Stooges. Big global fraud in a tiny nation.
  13. [11:03 AM, 11/19/2016] +27 76 660 8500: That is absolutely true and a funding model would be a better plan to deal with this and earlier I fell short of saying maybe the FOSMM must be a Foundation that fights in a manner similar to the Helen Suzman Foundation and should tackle issues pertain8ng to individuals and general gvt failure as this would easily create ease of getting funding. The SMM matter will also thus find closure through this channel. Which if agreed upon could have to change the name and finding a more suiting name.
  14. [11:04 AM, 11/19/2016] +263 77 257 3823: We long discovered here that the SMM issue did not need state of emergency powers at all as it lied outside the meaning of a state of emergency.
  15. [11:04 AM, 11/19/2016] +263 77 514 6759: Up voted. That’s great. Thieving
  16. [11:05 AM, 11/19/2016] +263 77 257 3823: I would like the FOSMM to be modeled along the lines of the Free Market Foundation.
  17. May be.
  18. [11:07 AM, 11/19/2016] MD Mawere: Let your wish be implemented by all.
  19. [1:09 PM, 11/19/2016] +263 77 257 3823: After being advised that SI133/16 is unconstitutional the govt has been forced to table an Reserve Bank of Zimbabwe Amendment Bill in Parliament.

This RBZ Bill is an admission by govt that SI 133/16 is illegal and unconstitutional. The SI should therefore be withdrawn or repealed.

Zanu PF has a majority in Parliament so the Bill is supposed to sail thru with easy. However, Zanu PF MPs have been put in a fix. Their Zanu PF Party will weep them into line and force them into voting in favour of this Bill which will not serve their interests or interests of their voters. Bond Notes are unpopular and are feared to bring back the hyperinflation days of 2008.

  1. [1:41 PM, 11/19/2016] +27 78 202 5720: Presidential Powers Temporary Measures Act isnt a long term solutuion. The bill was going to go through parliament either way. PPTMA is applicable for 6 months.
  2. [1:48 PM, 11/19/2016] +263 77 257 3823: What did the SI achieve in the interim?
  3. [2:46 PM, 11/19/2016] MD Mawere: To cover lack of planning.
  4. [2:50 PM, 11/19/2016] +263 77 257 3823: I’m still wondering what ground was covered from the date of the SI on 31Oct to date.
  5. [2:55 PM, 11/19/2016] MD Mawere: What they knew is that there was no cash and what they want is the end and less about the means.
  6. [3:15 PM, 11/19/2016] +27 76 660 8500: Tonite we are expecting the Zimbabwe Diaspora Vote Coalition on radio so font miss it. Over seventeen organisations which include political parties and CSO signed an MOU to get the diaspora vote for Zimbabweans. Tune in 6 to 9pm tonite.
  7. [3:15 PM, 11/19/2016] +27 76 660 8500: Remember its easy to listen, download the 1873FM app on play store or through TuneIn and stream.
  8. [8:38 PM, 11/19/2016] +263 77 376 6805: Advocate Mahere and other activist who were arrested yesterday have been released on$ US100 bail each.
  9. [8:52 PM, 11/19/2016] +263 77 700 5959: I think she wants to take the same route that was taken by the likes of Beatrice Mtetwa, Jestina Mukoko…
  10. [8:53 PM, 11/19/2016] +263 77 376 6805: Im supporting her all the way
  11. [8:55 PM, 11/19/2016] +260 97 7508519: Democracy vs autocratic. Obvious autocratic wins
  12. [8:56 PM, 11/19/2016] +263 77 700 5959: not always. Democracy will win eventually. the will of the people.
  13. [8:56 PM, 11/19/2016] +27 78 202 5720: I think she has 2018 in mind
  14. [8:57 PM, 11/19/2016] +263 77 700 5959: Yah. She is doing all the ground work now.
  15. [8:58 PM, 11/19/2016] +27 78 202 5720: Yes
  16. [8:59 PM, 11/19/2016] +263 77 376 6805: She is fighting for a good cause
  17. [9:01 PM, 11/19/2016] +27 78 202 5720: Politician are lead by an invisible desire for power which manifest as fighting for a good cause.
  18. [9:03 PM, 11/19/2016] +260 97 7508519: Democracy will win when there is great paper work along the process and not the outcome.
  19. [9:45 PM, 11/19/2016] +1 (780) 838-1646: @Sovereign: publishing of the Bond Notes in the Gazette is actually a sign that Gvnt is moving fwd with the bond notes law. It does not suggest Gvnt admitting error
  20. [9:49 PM, 11/19/2016] +1 (780) 838-1646: Gvnt thru Chinamasa has deposed an affidavit defending invoking of PPTMA to introduce bond notes.Its therefore incorrect to say Gvnt has backed off
  21. [9:50 PM, 11/19/2016] +1 (780) 838-1646: what solutions is Mahere proposing? It does not help to just oppose without offering alternativs
  22. [10:17 PM, 11/19/2016] +263 77 234 2053: So much for Chinamasa being a brilliant lawyer. He now wants to legitimise an illegal process taking advantage of the national assembly majority
  23. [10:19 PM, 11/19/2016] +263 77 234 2053: But ka Cde Musara argument dzenyu idzi kana musina kudyiswa makananzva zvikanzi change your stance
  24. [10:58 PM, 11/19/2016] +1 (780) 838-1646: Not all Cde…my argument is Consttn does not define what “parliament’s primary law making power is” and also does not prohibit use of SI to amend principal Act
  25. [10:58 PM, 11/19/2016] +1 (780) 838-1646: Not at all*
  26. [10:59 PM, 11/19/2016] +1 (780) 838-1646: Gazette says the Bond Notes Law came into effect on Oct 31 2016
  27. [11:01 PM, 11/19/2016] +1 (780) 838-1646: Going to Parly after invoking PPTMA is what the PPTMA says president shld do
  28. [11:01 PM, 11/19/2016] +1 (780) 838-1646: Cde Ras: u are not explaining hw the process is illegal. Why are u ignorinf the fact that the Consttn does not prohibit SI from amending a principal Act of Parly?

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