THE POLITICIZATION OF THE STATE

  1. To what extent is the hypothesis that in the post-colonial era, state institutions that promote and protect the rights entrenched in the constitution has been sufficiently compromised by the executive branch of the state so as to undermine the integrity of the democratic order promised by independence?institutions_header
  2. There is no doubt that President Mugabe would vehemently dispute any proposition that the separation of powers doctrine has been respected to the letter of the law under his watch.
  3. Many have warned South African of the dangers of following the ZANU-PF model of statecraft. As observed by William Gumede in an article entitled: “Africa: How we killed our dreams of freedom,” http://www.newstatesman.com/politics/2007/04/liberation-movements-zimbabwe , Zimbabwe is not alone in generating uncomfortable experiences for its citizens in the name of nationalism and patriotism.
  4. The umbilical cord that existed during the colonial era between the security apparatus and the ruling elites has been strengthened in the post-colonial era leaving citizens as hostages of the ruling parties.
  5. In the human rights domain, examples are abound about the role of police in undermining the rule of law but in the corporate world, apart from the experiences of the land reform, where the right to land (as an asset class) of white Zimbabweans, irrespective of their direct or indirect role in the colonial project, were constitutionally suspended; there are very few examples of how the politicisation of the state has manifested itself in post-colonial Zimbabwe.
  6. Indeed, a number of corporate actors have been fingered in corruption scandal but the Gono era with the whistle-blower incentive scheme managed to expose many corporate players to the justice system and remand prison.
  7. What is significant, however, is that of all the business actors who were targeted none of them was convicted of the crime that resulted in the limitation of rights via the operations of the police and other organs of state.
  8. Since I have no personal experiences in respect of the other matters that have been reported in the media, I can only share my limited experiences, insights and ideas with respect to what I have been exposed to.maxresdefault
  9. With respect to the extradition matter, the state actors who are directly mentioned in the papers that formed part of the application as follows:
  10. Mr. Eddington Alois K. Munatsi – who signed the letter of 22 May 2014 as the Acting Secretary for Justice, Legal & Parliamentary Affairs. Since the signing was on a Saturday it is not clear whether he was rented to act only in respect of my matters.
  11. Ms. Judith Tsamba, the then Provincial Magistrate.
  12. Mr. Joseph Musakwa, the then Director of Public Prosecutions
  13. Mr. Augustine Chihuri, National Commissioner of the ZRP
  14. Mr. Joseph Jagada, the then Chief Law Officer
  15. Mr. Mabunda, the then CID Superintendent
  16. At my bail hearing on 27 May 2004, a team of six members of the ZRP were in attendance. One of the officers I recognized at the hearing was Mr. Gora, the then Assistant Commissioner of Police.
  17. At that stage, Hon. Chinamasa had not surfaced as the driver of the project for all the actions were emanating from the RBZ.
  18. In fact, one would not expect a Minister of Justice to be ceased with foreign exchange matters as would later unravel.
  19. Until the extradition application, the interactions in respect of the cession court order and allegations arising therefrom were between SMM’s executive and directors with the officials of the RBZ.
  20. The principal actors from the RBZ’s side were Dr. Gono was paying the role of puppet master with Hon. Fortune Chasi and Mirirai Chiremba as the attack dogs.
  21. It was only after the dismissal of the extradition application that Chinamasa surfaced through an extraordinary government gazette in which four business actors were specified in terms of the operation of the Prevention of Corruption Act.
  22. Prior to the 9th of July 2004, the operative Act was the Exchange Control Act and the Externalisation Statutory Instrument in which externalization was classified in the same category as treason and any alleged person could be detained beyond the 48 hours without being charged.
  23. The law that has been associated with Makamba who was the person to whom the Act was firstly invoked and as a consequence he was remanded in custody for about 7 months. Other victims like Muponda, Kuruneri and others were to follow.
  24. Between 30 June and 9 July 2004, it would appear that my file as well as that of the NMB executives that; were also specified on the same day were transferred to Chinamasa. Chinamasa at the material time was the Minister of Justice and one naturally would have expected him as a lawyer to apply his mind independently as to the nature of the allegations and his role as an actor in the value chain of justice.
  25. It would appear that the facts of the matter confirm that he either acquiesced to Dr. Gono, who at the time was the unelected Emperor of Zimbabwe or he was part of the enterprise to undermine the rule of law and in so doing confirm the allegations of Zanufication of state organs.
  26. The effect of specification will be addressed later but what is important is that in the SMM matter the cause of action in the extradition matter was not fraud and externalisation as corruption was not one of the charges for which the warrant of arrest was issued.
  27. It is important to note that what was being alleged in the extradition matter had nothing to do with the cession court order and in fact no mention of it was made yet the disputed order was granted on 6 May 2004 and was the excuse used by Dr. Gono to assume the control and management of SMM without any court order.
  28. This was done through the convening of board meetings of SMM at the RBZ building and allowing Chasi to draft resolutions that were then passed. In fact, the minutes of SMM’s board that were in the various litigations on the SMM matters were minutes drafted under the supervision of Chasi.
  29. Following my specification, I thought naively like former VP Mujuru & Co thought that reason would prevail and lawyers like Chinamasa would not sink as low as to attempt to imagine crimes and act on them.
  30. Any layman would know that corruption is often associated with wrongdoing on the part of an authority or through means that are illegitimate, immoral, or incompatible with ethical standards and that it often results from patronage and is associated with bribery.
  31. In the specific case of SMM, one could not imagine how this allegation could take a life of its own independent of what was being alleged. If the allegation was that a cession court order granted by a South African judge had led to the prejudice of SMM, then one would at the very least have had to produce the bank statements showing the diversion of funds as a consequence of the cession court order.
  32. In this case, even Chinamasa wearing his legal hat would have been compelled to request the particulars of the claim of corruption. The only problem that all the actors mentioned above and the others whose names are not on the paper faced was that no diversion of funds took place as alleged pursuant to the cession court order.
  33. Although I was specified on 9 July 2009, the then Assistant Commissioner of Police, Mr. Mangoma, was only appointed as my investigator on 13 August 2004.
  34. By appointing a police officer to investigate corruption related to exchange control matters, it becomes clear what was really at play.
  35. Notwithstanding the fact that the extradition application was dismissed and the warrant of apprehension that was issued by Ms. Tsamba on 17 May 2004 remained in force. The warrant was in respect of charges of fraud related to exchange control transactions.
  36. Hon. Chinamasa knew that I was not a resident of Zimbabwe and so did Chasi who I met in Sandton by accident immediately after the dismissal of the extradition application.
  37. So from 9 July 2009, Gono faded from the frontline of attack and was now working through his subordinates.chinamasa-neww
  38. Now turning to the role of the police service in this travesty of justice, attached hereto is a supporting affidavit deposed to by Mr. Mangoma in support of Hon. Chinamasa’s answering affidavit in respect of the application to review and set aside the specification order.
  39. You will note in the affidavit that he alleges that he knew me in connection with two cases of externalisation of foreign currency and certainly not in respect of any corruption allegations that informed his appointment.
  40. The allegations were now refined as follows: “that Dr. Mudekunye, the then Chairman of SMM, and myself had acted in connivance and externalised (as fact) US$18.5 million, Canadian $628,071.84 and South African Rand 4,515,367.15.”
  41. The said amounts were allegedly represented as having been realised through the exports of asbestos fibre from Shabanie-Gathsmine.
  42. Having set out the cause of action as above, one would have expected Mr. Mangoma to state where the alleged offence was committed. Surely an offence in the currencies mentioned above, could not have been committed in South Africa as the lawful currency of South Africa is the Rand.
  43. In addition, it would be self-evident that the currencies in question were not lawful currencies of Zimbabwe.
  44. What is being alleged is that funds were externalised yet no facts are presented that the funds in question were received in any jurisdiction in which case the bank statements of the recipient or relevant companies could have been subpoenaed to confirm the amounts since the allegations relate to specific numbers.
  45. No bank statements were shown in support of bold statements about a crime being committed. In this case, you are not presented with the body, yet bold allegations of murder are made.
  46. The absurdity of the allegations only become clearer after reading the statement of Mr. Mangoma that: “the money was supposed to have been remitted to the RBZ.”
  47. One would know that the statement is inconsistent with how the funds actually flowed. Export proceeds were not paid to the RBZ as it was not the RBZ that was the exporter in the first place.
  48. The exporter would have been SMM and it is SMM that could only complain about not receiving what was due to it in respect of goods sold and delivered to the end customer. Another additional step that would have been required to be pleaded would have been a confirmation by the end customers that they had paid to the order of SAS, as agent, the amount that was meant to be remitted to SMM as the principal.
  49. No details are provided by Mangoma in support of the allegations because if SAS never received the funds, then there would have been nothing to pass on to SMM.
  50. In addition, SAS is a South African company and there is no supporting affidavit from the SA Police Service confirming that the funds that allegedly were paid to SAS from SMM’s customers were diverted to another source, which would have satisfied one of the key elements of fraud.Zimbabwe_flag
  51. By voluntarily sharing this information, one hopes that people like Mr. Mpinga who believe that Zimbabwe is the best country to do business can be honest enough to see Zimbabwe in the broader context of the ordinary people who are subjected to this kind of primitive policing.
  52. In fact, after his appointment, I did call Mr. Mangoma to arrange for an appointment since he was claiming under oath that it was difficult to interview but he refused to do so.
  53. I also arranged for the officers of SAS to visit Zimbabwe to clarify any issues related to the exports of SMM handled by SAS. When the people met with Mr. Mangoma all they were told is that he had instructions to arrest me and was less concerned about the SAS matters.
  54. This is what happens when the centre no longer holds, things fall apart. The relevant question then becomes when it became apparent that things had fallen apart.
  55. I can only speak to what has been revealed to me.

By: Tapuwa Chitambo (Friends of SMM)

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