FOSMM WHATSAPP THREAD ON 22 OCTOBER 2016 – The Presidential Powers

  1. [2:30 PM, 10/22/2016] Stanley: Good afternoon My name is Stanley …. I am a member of the 1873 Network and also a participant in a group called Friends of SMM. FOSMM is a registered trust in terms of the laws of Zimbabwe. It is led by Advocate T. Mavula who is based in Zimbabwe.

I have become an ardent follower of contesting views on the facts and circumstances regarding the acquisition of SMM’s UK registeted parent company, SMM Holdings Limited (SMMH) by Africa Resources Limited (ARL), a company beneficially owned by Mr Mutumwa Mawere who is also a member of the network as well as a friend of SMM.

I have been discussing on a show that I Host, the boiling point, the burning issue of corruption. It occurred to me that the SMM story remains largely masked in darkness and speculation especially with respect to the facts and circumstances of its takeover by government using public power and it’s eventual demise under the control of a state appointed Administrator.

A number of questions arise especially the one that has been introduced into the FOSMM public square by Gandanga, the SG of FOSMM, regarding the need to share insights into the role of public office bearers in a constitutional democratic order with a view to answering the question whether Zimbabwe is and has been a constitutional democracy.

Because of FOSMM, we are compelled on this radio conversation to limit our insights to the facts and circumstances of SMM.

Allow me to pose questions that will assist us in better understanding the true nature of public power and how easily it can be abused without anyone noticing.

As you are well aware, the last human experiment by migrants is the USA whose founding fathers were men of ideas and critical minds.

I am compelled to use their ideas about the design and operation of a government as a working reference.

  1. [2:40 PM, 10/22/2016] MD Mawere: You can screenshots
  2. [2:45 PM, 10/22/2016] Stanley: What lessons do we learn from the facts of SMM? Which executive orders where used in respect of SMM? How and by whom were they invoked? What rights where infringed.
  3. [2:54 PM, 10/22/2016] Shingai Ndoro: Don’t we have enough references in our own constitution for the exercise of public power?
  4. [2:54 PM, 10/22/2016] Adv. Thuto Mavula: The Presidential Powers (Temporary Measures) Act was invoked to pronounce the Statutory Instrument that gave birth to the Reconstruction Act
  5. [2:55 PM, 10/22/2016] Adv. Thuto Mavula: This in essence gave the executive the law making powers which are in a Democratic state normally the privilege of the LegislaturePresident-Mugabe-officiates-at-the-8th-parliament
  6. [2:55 PM, 10/22/2016] Shingai Ndoro: What should have been the grounds for invoking presidential powers?
  7. [2:58 PM, 10/22/2016] MD Mawere: Do you believe that President Mugabe respects the independence of the other organs of state?
  8. [2:58 PM, 10/22/2016] Adv. Thuto Mavula: By so doing the doctrine of separation of powers was eroded thereby undermining the rule of law and constitutional democracy. We then see a second outlet of law making outside the prescribed process
  9. [2:58 PM, 10/22/2016] Stanley: You are correct. That is where FOSMM comes in. We just wanted to highlight that the quest for constitutionalism knows of no border or nationality. Humanity is indivisible and using any example does not detract from the point that has to be made.
  10. [2:59 PM, 10/22/2016] Adv. Thuto Mavula: He may respect their existence but not their independence. As seen is his omnipresence in all arms of gvt
  11. [2:59 PM, 10/22/2016] Tinashe Mpasiri: I certainly believe so, just as much as I believe that he believes in The Rule of Law, only that he doesn’t know what it is.
  12. [2:59 PM, 10/22/2016] Shingai Ndoro: I struggle with people who use far away examples when our constitution already has the references.
  13. [3:00 PM, 10/22/2016] Shingai Ndoro: Can someone responds.

What should have been the grounds for invoking presidential powers?

  1. [3:01 PM, 10/22/2016] Adv. Thuto Mavula: Reverting
  2. [3:01 PM, 10/22/2016] +27 73 738 4237: Doe the role of a President include reasons or steps used to hastily invoke instrument and temporary laws? Will these laws be used from then onwards or tailor made ones are used and discarded after their purpose?
  3. [3:02 PM, 10/22/2016] MD Mawere: What limitations are imposed on him by the operation of the constitution
  4. [3:09 PM, 10/22/2016] Adv. Thuto Mavula: Section 110 -113 expressly states the requirement of consultation. The presidential powers have to be used after or in consultation with Cabinet or Parliament
  5. [3:10 PM, 10/22/2016] Adv. Thuto Mavula: Any decree or pronunciation of law must be made with the input of the organs cited above as a check on use if the presidents executive power
  6. [3:13 PM, 10/22/2016] Adv. Thuto Mavula: This means there is need for him to substantiate his chosen course of action before these organs and they have to debate upon it and agree on it before the president can declare it to the public.that’s the mechanism to place a limit or balance in the use of executive power
  7. [3:13 PM, 10/22/2016] Shingai Ndoro: Will anyone answer my question?
  8. [3:14 PM, 10/22/2016] Adv. Thuto Mavula: I thot we are answering as we are discussing the executive power as defined by s110-113
  9. [3:15 PM, 10/22/2016] Shingai Ndoro: There is no answer to my question yet!
  10. [3:21 PM, 10/22/2016] MD Mawere: State of emergency. It a temporary weapon with a limited shelf life
  11. [3:23 PM, 10/22/2016] MD Mawere: Is your question answered
  12. [3:26 PM, 10/22/2016] MD Mawere: In terms of s113 of the constitution and the enabling act
  13. [3:27 PM, 10/22/2016] Shingai Ndoro: Not answered. Let me restructure the question.
  14. The Reconstruction Order was issued using SI 187 of 2004 that had been created using Presidential Powers (Temporary Measures).

What were the constitutional grounds to invoke the PPTMs?

  1. [3:30 PM, 10/22/2016] MD Mawere: To clothe the President with temporary law making Powers to deal with emergencies that the legislature cannot handle or could not have foreseen in the ordinary course of business
  2. [3:31 PM, 10/22/2016] MD Mawere: National interest
  3. [3:32 PM, 10/22/2016] Shingai Ndoro: What emergencies?

Any emergency?

Or specific emergency?

  1. [3:36 PM, 10/22/2016] MD Mawere: Specific emergencies as per your previous posting which sets out the limited nature of the privilege. Trying to get your posting
  2. [3:38 PM, 10/22/2016] MD Mawere: Do you still have a copy of the postings? I lost my record. State of emergency – Wikipedia, the free encyclopediaen.wikipedia.org
  3. [3:41 PM, 10/22/2016] Shingai Ndoro: A “state of emergency” is when government can suspend and/or change some functions of the executive, the legislative and/or the judiciary during this period of time. It alerts citizens to change their normal behavior and orders government agencies to implement emergency plans.

A “state of emergency” can arise 1) if there is a threat to safety or public order ; 2) during a time of natural or human-made disaster, 3) during a period of civil unrest, or 4) following a declaration of war or situation of international/internal armed conflict.

Zimbabwe’s Old Constitution (section 31J(1)) : The government may declare that the whole or part of Zimbabwe is in a state of emergency or or a situation has necessitated a state of emergency.

States of emergency in South Africa are governed by section 37 of the Constitution and by the State of Emergency Act, 1997. The President may declare a state of emergency only when “the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency” and if the ordinary laws and government powers are not sufficient to restore peace and order.

The declaration is made by proclamation in the Government Gazette and may only apply from the time of publication, not retroactively. It can only continue for 21 days unless the National Assembly grants an extension, which may be for at most three months at a time. The High Courts have the power, subject to confirmation by the Constitutional Court, to determine the validity of the declaration of a state of emergency.

Emergency measures may not indemnify the government or individuals for illegal actions. They may impose criminal penalties, but not exceeding three years’ imprisonment. They may not require military service beyond that required by the ordinary laws governing the defence force. An emergency measure may be disapproved by the National Assembly, in which case it lapses, and no emergency measure may interfere with the elections, powers or sittings of Parliament or the provincial legislatures. The courts have the power to determine the validity of any emergency measure.

Emergency measures cannot violate the rights to life and to human dignity; the prohibition of discrimination on the grounds of race, sex or religion; the prohibition of torture or inhuman punishment; and the right of accused people to a fair trial.

In Brazil, can be declared on the following circumstances: 1) Serious disturbance with national impact; 2) Inefficiency on the Defense State previously decreed; 3) Declaration of war; 4) Response to foreign armed aggression.

In Canada, there are different levels of emergencies: Public Welfare Emergency, Public Order Emergency, International Emergency, and War Emergency.pachikoro-parliament-building-1

In Germany, the Emergency Acts state that some of the basic constitutional rights of the Basic Law may be limited in case of 1) a state of defence, 2) a state of tension, or 3) an internal state of emergency or disaster (catastrophe).

In Hong Kong, a state of emergency can declared to prohibit public gatherings, issue curfew orders, prohibit the movement of vessels or aircraft and appoint special constable all under Chapter 245 (“Public Order Ordinance”) of Hong Kong Law.

In Spain, there are three degrees of state of emergency: alarm or alert, exceptional circumstance and siege.

In the United Kingdom, the proclaimation of emergency regulations under the Civil Contingencies Act 2004 is when there is case of any seriously fatal threats to human welfare, human society, and the environment, such as warfare or terrorism. These regulations last for seven days unless confirmed otherwise by Parliament.

Source: https://en.wikipedia.org/wiki/State_of_emergency

  1. [3:41 PM, 10/22/2016] MD Mawere: 👍
  2. [3:44 PM, 10/22/2016] Shingai Ndoro: Can we have this issue taken to court if it hasn’t?
  3. [3:44 PM, 10/22/2016] MD Mawere: What would be the legal question?
  4. [3:44 PM, 10/22/2016] Shingai Ndoro: There was no emergency related to SMM!!!!
  5. [3:45 PM, 10/22/2016] MD Mawere: Is the exercise of discretion subject to interpretation and subjectivity
  6. [3:46 PM, 10/22/2016] MD Mawere: There was a clause that it could be declared in the national interest. Let me check
  7. [3:57 PM, 10/22/2016] Shingai Ndoro: Was this in the SI or the Act?
  8. [4:01 PM, 10/22/2016] Shingai Ndoro: Oh ok
  9. [4:01 PM, 10/22/2016] Shingai Ndoro: Now it’s clear for me.
  10. [4:01 PM, 10/22/2016] MD Mawere: 👍👍👍
  11. [4:02 PM, 10/22/2016] Shingai Ndoro: Now, what economic interests were under threat?
  12. [4:02 PM, 10/22/2016] MD Mawere: Rule by law is always crafted to achieve an end
  13. [4:03 PM, 10/22/2016] Tawanda Madamombe: I dont think thats the right question though,assuming that the president can use his discretion
  14. [4:03 PM, 10/22/2016] MD Mawere: We have to start to look at the Act to see if someone was generous enough to define the animal
  15. [4:03 PM, 10/22/2016] Shingai Ndoro: Let’s interrogate further
  16. [4:04 PM, 10/22/2016] Shingai Ndoro: Would the act have a definition of economic interest?
  17. [4:04 PM, 10/22/2016] Tawanda Madamombe: And taking into cognisance smm was responsible for 10% of the budget
  18. [4:05 PM, 10/22/2016] Tawanda Madamombe: *Exports
  19. [4:05 PM, 10/22/2016] MD Mawere: As you are aware no notice was published of intention to make regulations
  20. [4:08 PM, 10/22/2016] Shingai Ndoro: Because of (3)
  21. [4:09 PM, 10/22/2016] MD Mawere: What do you make of 2
  22. [4:10 PM, 10/22/2016] Shingai Ndoro: Did he get representations?
  23. [4:11 PM, 10/22/2016] MD Mawere: How can one make representations if not notified
  24. [4:21 PM, 10/22/2016] MD Mawere: You hear Chinamasa’s own words as to why he borrowed state of emergency powers
  25. [4:23 PM, 10/22/2016] Shingai Ndoro: Did SMM settle the state debts after the reconstruction order?
  26. [4:23 PM, 10/22/2016] Shingai Ndoro: Did the reconstruction order affect shareholding?
  27. [4:23 PM, 10/22/2016] MD Mawere: Which debts and which SMM?
  28. [4:24 PM, 10/22/2016] Shingai Ndoro: What ever debts they were claiming
  29. [4:25 PM, 10/22/2016] MD Mawere: Indeed that is another drama that will unfold. We can follow Chinamasa’s reasoning first. What Department of State was he in charge of at material time?
  30. [4:26 PM, 10/22/2016] MD Mawere: If you are indebted to a creditor would it not be within the right of the creditor to assert the rights in a court of law?
  31. [4:27 PM, 10/22/2016] MD Mawere: Could it have been the intention of the legislature to clothe the President with powers that would violate the fundamental rights entrenched in the constitution – right to a fair hearing before an independent tribunal and the separation of powers?
  32. [4:28 PM, 10/22/2016] Tinashe Mpasiri: Justice, Legal and Parliamentary Affairs
  33. [4:31 PM, 10/22/2016] MD Mawere: How would he known about the affairs of SMM in the ordinary course of business?
  34. [4:32 PM, 10/22/2016] Shingai Ndoro: Good question
  35. [4:33 PM, 10/22/2016] Tinashe Mpasiri: Surely not. As SMM was a private company conducting its business. Its business had nothing to do with the Ministry.
  36. [4:35 PM, 10/22/2016] Stanley: What was his interest in SMMdepartment-of-justice-seal-billboard-2014-650x430
  37. [4:35 PM, 10/22/2016] MD Mawere: Intimately for that matter. What would have occurred to permit the department of justice to be ceased with matters of finance let alone the enforcement of claims that have not become due but are to occur in the future
  38. [4:35 PM, 10/22/2016] Shingai Ndoro: Again very good “legal” questions.
  39. [4:36 PM, 10/22/2016] Shingai Ndoro: What had the state owned entities done to bring to the justice minister the issue of debts?
  40. [4:36 PM, 10/22/2016] MD Mawere: There is no supporting affidavit from the different state organs confirming the capacity and incumbency of Chinamasa to act on their behalf as debt collector
  41. [4:37 PM, 10/22/2016] MD Mawere: The Minister does not disclose any interface with any of the underlying creditors nor does he seek any statement of indebtedness to rely upon.
  42. [4:49 PM, 10/22/2016] Shingai Ndoro: Has this been tested legally?
  43. [4:50 PM, 10/22/2016] MD Mawere: Which aspect?
  44. [4:50 PM, 10/22/2016] Shingai Ndoro: The above involvement of the justice minister
  45. [4:52 PM, 10/22/2016] MD Mawere: Indeed but when judges are part of the prosecution team, you can appreciate the consequences. But now as FOSMM it is important to note the possible circumference of the case.
  46. [4:52 PM, 10/22/2016] MD Mawere: By FOSMM no.
  47. [4:53 PM, 10/22/2016] Shingai Ndoro: Should this not be tested?
  48. [4:53 PM, 10/22/2016] MD Mawere: That is why we have FOSMM to generate debate and possibly resolve
  49. [4:53 PM, 10/22/2016] Tinashe Mpasiri: it should be tested and i call upon legal experts to assist us in this regard.
  50. [4:53 PM, 10/22/2016] MD Mawere: 👍
  51. [4:54 PM, 10/22/2016] Stanley: why has it not been tested, what the hold up
  52. [4:54 PM, 10/22/2016] Stanley: *whats
  53. [4:54 PM, 10/22/2016] Shingai Ndoro: This needs an answer
  54. [4:54 PM, 10/22/2016] MD Mawere: First we need to define the legal and factual questions
  55. [4:55 PM, 10/22/2016] Shingai Ndoro: Is a reconstruction order meant to affect shareholding?

Do the shareholders lose their rights?

  1. [4:55 PM, 10/22/2016] MD Mawere: As I said SMM ceased to be a company on 6 September 2004 when its board was dismissed and it became an organ of state through administrative fiat.
  2. [4:56 PM, 10/22/2016] MD Mawere: Indeed. The first act was to remove directors appointed by shareholders without notice to them. What is this Act
  3. [4:57 PM, 10/22/2016] MD Mawere: What happened after the dismissal of the board is fixed in the mind of an extra judicially appointed Administrator
  4. [4:59 PM, 10/22/2016] MD Mawere: You can read the regulations and the Act to see the mechanism through which shares can be lost
  5. [5:24 PM, 10/22/2016] Adv. Thuto Mavula: This raises the question of locus standi. If a debt arise from a guarantee and that’s the cause of action, the Finance Minister and RBZ chief were the proper parties to raise the claim before the courts as creditors on behalf of the state.

The minister of justice as an overseer of the judiciary in any event should not have been a litigant in a proceeding for adjudication in his domain

  1. [5:26 PM, 10/22/2016] Adv. Thuto Mavula: This us the same predicament arising from Mnangagwa being Min of Justice and VP at the same time. He dips in both Executive n Judiciary and Legislature
  2. [5:26 PM, 10/22/2016] MD Mawere: Is it fact that the Minister of Justice acted at the instigation of state owned entities
  3. [5:27 PM, 10/22/2016] MD Mawere: How so when the VP and Minsters are all members of the same branch of government
  4. [5:29 PM, 10/22/2016] Adv. Thuto Mavula: As raised above there is no proof if his appointment to represent except via the Recon Act
  5. [5:29 PM, 10/22/2016] Shingai Ndoro: It’s not factual
  6. [5:30 PM, 10/22/2016] MD Mawere: In his sworn statement he makes no representations that he was authorised except that his entry point is the Recon law
  7. [5:30 PM, 10/22/2016] Adv. Thuto Mavula: The set up doesn’t promote or give effect to seperation of powers
  8. [5:31 PM, 10/22/2016] MD Mawere: How so when no conflict arises
  9. [5:32 PM, 10/22/2016] MD Mawere: I thought separation of powers is in relation to the three branches of government
  10. [5:37 PM, 10/22/2016] Adv. Thuto Mavula: Is it healthy for one individual to be the VP(Executive) , Min of Justice (Executive n Judiciary) and Leader if Partly(Legislature)?
  11. [5:38 PM, 10/22/2016] MD Mawere: What does a VP do in Mugabe’s Ecosystem
  12. [5:38 PM, 10/22/2016] Shingai Ndoro: We are drifting off, me thinks.
  13. [5:39 PM, 10/22/2016] Adv. Thuto Mavula: Trying establish Chinamasa’s position in relation to the proceedings in light of Rule of Law
  14. [5:39 PM, 10/22/2016] MD Mawere: It is part of literacy I should think
  15. [5:39 PM, 10/22/2016] Shingai Ndoro: Ok
  16. [5:40 PM, 10/22/2016] Adv. Thuto Mavula: Not just their existence only but even in their functions
  17. [5:40 PM, 10/22/2016] Stanley: 👍🏽
  18. [5:42 PM, 10/22/2016] MD Mawere: How does the fact that Mugabe’s assistant also has a government department to administer create conflict
  19. [5:43 PM, 10/22/2016] MD Mawere: For all you know, the VP are technically underemployed knowing that Mugabe rarely delegates foreign travel let alone chairing if cabinet
  20. [5:45 PM, 10/22/2016] Adv. Thuto Mavula: Let me do due diligence and demonstrate my point w relevant citations in a bit
  21. [5:46 PM, 10/22/2016] MD Mawere: 👍
  22. [5:46 PM, 10/22/2016] Shingai Ndoro: In South Korea, the education and finance ministers are co-deputy prime ministers. Without a ministry, a VP is idle.
  23. [5:47 PM, 10/22/2016] MD Mawere: 👋🏾👋🏾👋🏾
  24. [5:49 PM, 10/22/2016] Adv. Thuto Mavula: So they shld assume other functions even if it violates fundamental principles of constitutionalism
  25. [5:50 PM, 10/22/2016] MD Mawere: Where and how would constitutionalism be violated?
  26. [5:50 PM, 10/22/2016] Shingai Ndoro: Which principle is violated?
  27. Being a justice minister doesn’t make him part of the judiciary.
  28. [5:54 PM, 10/22/2016] Adv. Thuto Mavula: Are saying the Justice minister has no influence in the affairs and conduct of the judiciary? Appointments and so on
  29. [5:55 PM, 10/22/2016] MD Mawere: What is the doctrine of separation of power
  30. [5:55 PM, 10/22/2016] MD Mawere: Powers
  31. [6:00 PM, 10/22/2016] Adv. Thuto Mavula: Let me attend to the issue of violations and separation Shortly
  32. [6:01 PM, 10/22/2016] Shingai Ndoro: The issue of separation of powers isn’t absolute.
  33. Please read Federalist Paper #47 by Madison.
  34. [6:02 PM, 10/22/2016] Shingai Ndoro: There are overlaps.

Ministers are appointed out of the Legislature taking from the British model.

  1. [6:02 PM, 10/22/2016] MD Mawere: Powers are not vested in persons but in institutions
  2. [6:05 PM, 10/22/2016] MD Mawere: The President appoints judges but in the exercise of their duties the judges must act in an impartial and independent manner
  3. [6:05 PM, 10/22/2016] Adv. Thuto Mavula: Agreed but I m pointing to the result flowing from that
  4. [6:06 PM, 10/22/2016] MD Mawere: What turns on this argument in respect of the matter in forum
  5. [6:12 PM, 10/22/2016] Adv. Thuto Mavula: Locus standi and involvement of Chinamasa in the matter as Min of Justice. But its a peripheral issue that shldnt have taken much time
  6. [6:18 PM, 10/22/2016] Stanley: Cdes I still haven’t gotten the answers to the questions I posed
  7. [6:19 PM, 10/22/2016] Stanley: These are the questions i asked
  8. [6:19 PM, 10/22/2016] Stanley: Asked?
  9. [6:21 PM, 10/22/2016] Stanley: Am asking this questions because I want the the question answered for my listeners. Where under president Mugabe using the SMM facts can be considered to be a bonafide
  10. [6:21 PM, 10/22/2016] Stanley: Constitutional democracy
  11. [6:22 PM, 10/22/2016] Stanley: Help me answer the question. I want to package the program that deals with this issue
  12. [6:23 PM, 10/22/2016] Tinashe Mpasiri: One lesson is abuse of public power by a public office bearer.
  13. [6:50 PM, 10/22/2016] Adv. Thuto Mavula: separate and independent powers
  14. [6:50 PM, 10/22/2016] MD Mawere: Thanks.
  15. [6:50 PM, 10/22/2016] MD Mawere: 👍👍👍
  16. [6:52 PM, 10/22/2016] Adv. Thuto Mavula: Powers of one branch are not in conflict with powers of the other branches
  17. [6:54 PM, 10/22/2016] MD Mawere: In this case the task at hand is to determine whether the facts of SMM should scare any person who believes in constitutionalism.
  18. [8:17 PM, 10/22/2016] Stanley: Still no answers
  19. [8:17 PM, 10/22/2016] MD Mawere: May be you can leave it until tomorrow.
  20. [8:17 PM, 10/22/2016] MD Mawere: What time do you want to leave
  21. [8:18 PM, 10/22/2016] Stanley: In 20min
  22. [8:18 PM, 10/22/2016] MD Mawere: OK tx
  23. [8:18 PM, 10/22/2016] MD Mawere: Is adv not online
  24. [8:19 PM, 10/22/2016] Stanley: Seems he’s offline for now

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