kempton makamure labour law journal vol 3, 2011 : legal and constitutional reforms on...

Kempton Makamure Labour Law Journal Volume 3: 2011

______________________________________________________

LEGAL AND CONSTITUTIONAL REFORMS ON

INDIGENISATION, ECONOMIC EMPOWERMENT AND

WORKERS’ RIGHTS.

ISSN: 2223-5337

______________________________

Product of the

Kempton Makamure

Labour Law Lecture

Series, Faculty of Law,

University of Zimbabwe

Kempton Makamure Labour Law Journal Vol. 3, 2011: Legal and Constitutional Reforms on Indigenisation, Economic Empowerment and Workers’ Rights

1

Kempton Makamure Labour Law Journal

Volume 3: 2011

Legal and Constitutional Reforms on Indigenisation, Economic

Empowerment and Workers’ Rights.

Product of the

Kempton Makamure Labour Law Lecture Series

Faculty of Law, University of Zimbabwe

ISSN: 2223-5337

KMLLLS Board Zimbabwe Labour Centre Rosa Luxemburg Stiftung Open Society Initiative

Faculty of Law for Southern Africa

University of Zimbabwe


2

THE KEMPTON MAKAMURE LABOUR LAW LECTURE SERIES BOARD, FACULTY OF LAW, UNIVERSITY OF ZIMBABWE (2010-2012) The Kempton Makamure Labour Law Lecture Series and Journal Board has the vision of developing

a leading Southern Africa labour law development platform in the service of the working class and

toiling masses, consistent with the dialectical and historical materialist world outlook that Kempton

Makamure held and fought for most of his life.

Coordinator: Munyaradzi Gwisai Editor-in-Chief: Lenin Tinashe Chisaira Editorial Board: Talence Temba Tawanda Katsuro Shamiso Nyagura Tafadzwa Miti Nelson Mashizha Tinashe Didymus Makuyana Julian Herman This issue graciously supported by: Commercial Law Institute, Univ. of Zimbabwe

Zimbabwe Labour Centre Rosa Luxemburg Foundation Open Society Initiative for Southern Africa (OSISA)

ISSN Number: 2223-5337 To assist, fund, support and become a Friend of the Kempton Makamure Labour Law Lecture Series

please get in touch at:

Kempton Makamure Labour Law Lecture Series (KMLLLS) Board Faculty of Law

University of Zimbabwe P.O. Box MP 167

Mount Pleasant, Harare Tel / Fax: +263 4 333556 E-mail: [email protected]

Published by: Kempton Makamure Labour Law Lecture Series Board,

Zimbabwe Labour Centre Copyright: © 2011 Kempton Makamure Labour Law Lecture Series Board,

Zimbabwe Labour Centre & The Authors Disclaimer: All works may be cited or reproduced, provided the source is acknowledged.

The views and opinions expressed in the articles in KMLLJ are those of the author(s) and do not necessarily reflect the views or opinions of the editors, the reviewers, the publishers or the supporting law faculty.

mailto:[email protected]


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TABLE OF CONTENTS

The Kempton Makamure Labour Law Lecture Series Board, Faculty of Law, University of

Zimbabwe (2010-2012) .................................................................................................................................................... 2

The Editor’s Note

Lenin Tinashe Chisaira ........................................................................................................................................................... 4

The Historical and Contextual Background to Indigenisation and Empowerment Reforms:

Government’s Perspectives

Hon. Saviour Kasukuwere ..................................................................................................................................................... 6

Business Perspectives on Indigenisation and Employee Share Ownership Schemes

Tawanda Nyambirai ............................................................................................................................................................. 14

“A Revolution benefits those who start it...” The Working Class and the Indigenisation and

Empowerment Agenda in Zimbabwe

Munyaradzi Gwisai ................................................................................................................................................................ 19

Civic Society Perspectives on Indigenisation, Economic Empowerment and Workers Rights.

Dr. Lovemore Madhuku ........................................................................................................................................................ 50

Indigenisation, Empowerment and the Working Class (Keynote Address)

Hon. Prof. Aurthur G.O. Mutambara ................................................................................................................................ 55

Conference Programme .................................................................................................................................................. 61

Journal Orders ...................................................................................................................................................................... 62


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THE EDITOR’S NOTE

LENIN TINASHE CHISAIRA1

The Indigenisation and economic empowerment debate in Zimbabwe has taken centre

stage in the country as and beyond at the time we conducted the Kempton Makamure

Labour Law Lecture Series 2010. However, the discourse has mainly taken place between

the ruling elite, politicians, multinationals (MNCs) and the black indigenous elites.

We were honoured during the lecture with the presence and powerful speeches from the

Minister of Youth, Indigenisation and Economic Empowerment, Hon. Saviour Kasukuwere.

Delivering the key note address was the Deputy Prime Minister, Hon. Prof. A.G.O.

Mutambara. Then academics Dr. Lovemore Madhuku and Cde Munyaradzi Gwisai also

delivered highly-interesting papers and speeches. The bulk of the presentations and papers

at the Lecture form part of this Kempton Makamure Labour Law Journal.

The theme of the Lecture and of this journal was mainly informed by the need for the

inclusion of working class interests and voice in the Indigenisation and economic

empowerment discourse in Zimbabwe. Of special interest was to encourage debate on the

benefits and implementations of empowerment models such as the Employee Share

Ownership Schemes. It is however up to the reader or student of economic empowerment

to make a judgment after perusing the diverse papers/presentations in this volume. As a

board, the KMLLLS group have tried their best to make sure that diverse voices from the

highest levels in academia, government, civil society and business are included.

The anti-Indigenisation camp is usually fronted by local representatives and sympathisers

of multinational capital, especially in the banking sectors and these do not normally shy

from expressing their opposition to the indigenisation agenda. The Zimbabwean context

has however seen some of the energetic opposing views against Indigenisation emanating

from local elites. In this volume, local banker and lawyer, Mr. Tawanda Nyambirai presents

a well-researched presentation that looks at the alternatives which he argues, the

Zimbabwean government should have looked at instead of selectively targeting non-

indigenous owned business. His presentation at the Kempton Makamure Labour Lecture

which was delivered at the New Lecture Theatre 400, University of Zimbabwe was

punctuated by applause and cheers from students.

Munyaradzi Gwisai, a well-known socialist and academic argues that the purpose of

indigenisation is to punish foreign capital for its perceived support of the opposition. In

addition, the empowerment model was formulated to reward black elites in the ruling

Zanu-Pf. He highlights that the same model was adopted in Russia at the fall of the Soviet

1 LL. B (Hons) student & Editor-in-Chief, Kempton Makamure Labour Law Lecture Series and Journal Board (2010-2012), Faculty of Law, University of Zimbabwe


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Union and only serves to ensure a long season of Zanu-Pf domination, given the party’s

control of the commanding heights of the Zimbabwean economy. His conclusion is very

insightful though:

The Zimbabwe indigenisation programme contains some positive and radical elements but an

analysis of its framework shows that it is fundamentally aimed for the benefit of the black

bourgeoisie, especially those aligned to the ruling party and state.

For his party, Hon. Kasukuwere, whose presentation on government perspectives is the

first in the journal, seems to point out that Indigenisation and economic empowerment will

reward the elites, the workers and the community members alike. As said before, it is up to

the reader, student, economist, politician, businessperson or researcher who will utilise

this journal to come to his/her own conclusion about the Indigenisation program in

Zimbabwe.

The arrangement of the articles starts with the one on government’s perspective to enable

Minister Kasukuwere to set the stage. Then Mr Nyambirai gives the business side and Cde

Munyaradzi Gwisai provides a working class perspective. The remaining two articles

include the keynote address at the lecture delivered by Prof Mutambara , then a civil

society perspective on indigenisation given by Dr. Lovemore Madhuku. It is pertinent to

point out that Dr. Madhuku was talking both as a civil society practitioner, in his capacity as

Chairperson of the National Constitutional Assembly (NCA) and as an academic.

This Volume 3 of the Kempton Makamure Labour Law Journal follows two earlier volumes

published by the KMLLLS Board. The titles of the volumes published so far as follows:

i. Kempton Makamure Labour Law Journal Vol. 1, 2004: Jurisprudence and Jurisdiction of the Labour Court under the new Labour Act.

ii. Kempton Makamure Labour Law Journal Vol. 2, 2009: Constitutional Reform in Zimbabwe: Labour, Gender and Socio-economic Rights.

iii. Kempton Makamure Labour Law Journal Vol. 3, 2011: Legal and constitutional Reforms on Indigenisation, Economic Empowerment and Workers’ Rights.

This volume would not have been successful without the active participation of many

people and institutions. There was great discourse as a result of the active participation

and efforts of University of Zimbabwe students, the speakers and the membership of the

2010-2011 Kempton Makamure Labour Law Lecture Series and Journal Board. Financial

assistance came from the generous support of the Rosa Luxemburg Foundation/Stiftung,

the Zimbabwe Labour Centre and TN Holdings. Solidarity Forever.


6

THE HISTORICAL AND CONTEXTUAL BACKGROUND TO INDIGENISATION AND EMPOWERMENT REFORMS: GOVERNMENT’S PERSPECTIVES

HON. SAVIOUR KASUKUWERE2

Introduction

It is indeed an honor to address you all here at the Kempton Makamure Labour Lecture Series

on the topic ‘Historical and Contextual Background to Indigenisation and Empowerment

Legal and Constitutional Reforms: Government Perspective’. I will take this opportunity to

walk you through various issues relating to the historical and contextual background of the

Indigenisation and empowerment agenda in Zimbabwe. These issues include the historical

background to Indigenisation and economic empowerment; state of Indigenisation in selected

sectors of the economy, policy and economic imperatives, policy strategies, the legal

framework, governments’ perspective on workers and community rights vis-à-vis ownership

of the means of production.

Historical Background of the Indigenisation and Economic Empowerment Agenda in

Zimbabwe

Allow me to begin my presentation by giving you a brief background of Indigenisation and

economic empowerment. The country requires an economy that can meet the needs of its

entire people irrespective of race in a sustainable manner. This is only possible if the

economy is all inclusive and thus founded on full potential of all persons and communities

throughout the country. This would constitute the foundation of an economy characterised

by growth, employment and equity. The colonial era purposefully and systematically

restricted the majority of Zimbabweans from meaningful participation in the economy, the

assets of the people were destroyed and access to skills and employment opportunities for

black Zimbabweans was restricted. Wealth accumulation was left for the white minority,

while the black majority was condemned to under development.

The majority of the people live in conditions of extreme poverty due to limited

opportunities to participate in the mainstream economy as a result of racial imbalances

inherent in the colonial system of governance and development, in which the black

majority was discriminated against socially, economically and politically. This colonial

system was geared to serve the interests of the white minority.

Black Zimbabweans resisted this apparent colonial conquest and alienation of their

resources. Thus the armed struggle was waged for political independence, social and

2 Minister of Youth, Indigenisation and Economic Empowerment, Republic of Zimbabwe


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economic justice. The vision of an economy that meets the aspirations of the majority was a

central element of this struggle.

The ultimate objective of our struggle was to have a free and democratic Zimbabwe, whose

socio-economic and political system would serve to improve the standard of living for the

majority of the Zimbabwean people.

With the onset of independence, the major challenges to the Zimbabwean Government has

been to remove the barriers and limitations inhibiting the participation of indigenous

Zimbabweans in the mainstream economy. Despite successes achieved notably in the

social sectors and some professionals like accounting and legal professions, entrenched

inequalities continue to characterise the economy and act as a deterrent to growth,

economic development, employment creation and poverty eradication. Thirty years since

independence, vast racial inequalities in the distribution of and access to resources, wealth,

income, skills and employment opportunities persist

Societies characterised by entrenched racial or ethically defined wealth patterns of

disparities are not likely to be socially and politically stable; therefore, the medium to long

term sustainability of economics, characterised by inequality, is vulnerable. It is imperative

that racial inequalities are eliminated as this is a prerequisite for peace, stability and

ultimately sustainable economic growth.

The Indigenisation and Economic Empowerment strategy is necessary. Government

intervention is necessary in order to address systematic exclusion of the majority of

Zimbabweans from full participation in the country. The legal and structured exclusion of

indigenous majority from economic power began in the 1890s with dispossessions of land

and was consolidated throughout the 20th century. The defining feature of the colonial era

was the use of judicial and extra judicial measures to restrict and severely control access to

resources by black Zimbabweans. Indigenous Zimbabweans were given very little room to

access technical and scientific knowledge thereby underlining their positions as underdogs

in the society.

The impact of this systematic disempowerment not only resulted in a landless indigenous

majority with restricted access to skills development, but also deliberately prohibited

indigenous people from generating self-employment and entrepreneurship indigenous,

Zimbabweans were systematically deprived of viable business opportunities in the

following ways:

The colonial era confined the majority of the blacks to homeland areas which were not

only the poorest in terms of resource endowments, infrastructural developments and


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business opportunities, but also lacked dynamic business infrastructure and

environment.

Enforced racially segregated areas not only uprooted millions from their places of

residence but also led to large capital losses and virtually destroyed the fabric of

indigenous small enterprises.

The drastic curtailment of property ownership rights of the black majority made it

impossible for them to acquire assets that could serve as collateral for loan financing. It

also excluded black Zimbabweans from the long run in the process of capital accrual or

growth.

In 1980 with the advent of independence the democratic new government embarked upon

a comprehensive programme to provide a legislative framework for the transformation.

New laws restored rights to land and tenure, introduced specific active measures to

overcome the distortions in the labour markets as well as providing new economic

opportunities to the historically disadvantaged black majority. These measures included

increased access to health and human resources development of small and medium scale

enterprises cooperatives, introduction of the growth points concept, preferential treatment

of local suppliers in procurement, establishment of indigenously owned financial

institutions and the land reform programme. In spite of all these efforts there was no

comprehensive legal framework for advancing the participation of black Zimbabweans in

the economy.

The post-independence era also witnessed the amendments to the Constitution of

Zimbabwe and formation of indigenous lobby groups demanding increased opportunities

to participate in the economy. These groups included the Indigenous Business

Development Centre (IBDC), Affirmative Action Group (AAG) and the Indigenous Business

Women’s Organisation (IBWO).

Policy Framework

The government’s first policy framework on the Indigenisation of the economy was first

published in February 1998.This policy led to the creation of the National Investment Trust

of Zimbabwe in order to spearhead the participation of indigenous Zimbabweans in the

economy.

The policy was revised in October 2004 with the adoption by Cabinet of the ‘Revised Policy

Framework for the Indigenisation of the Economy’. This policy framework provided the

principles for the Indigenisation and Economic Empowerment legislation, culminating in

the promulgation of the Act [Chapter 14:33]3, which was assented to by the President in

January 2008 to become part of our national law.

3 Indigenisation and Economic Empowerment Act.


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The revised Policy Framework for the Indigenisation of the Economy is premised on the

following fundamental principles:

The conviction that Indigenous Zimbabweans must own and primarily benefit from the

exploitation and utilisation of their God given resources

The commitment to underpin our political sovereignty through economic independence.

The principle of equal opportunities for all and the need to eliminate ownership of

wealth along racial lines.

That we indigenous Zimbabweans are responsible for and committed to determine our

own destiny.

The policy objectives of the revised policy framework for the Indigenisation of the economy

are:

To economically empower the previously disadvantaged Zimbabweans by increasing,

mainly through economic expansion their participation in the economy so as to create

wealth and eradicate poverty.

To create conditions that will enhance the economic status of the hitherto disadvantaged

Zimbabweans by facilitating their contribution to and benefit from the economic

development of the country.

To democratise (increase access to) ownership of the productive assets of the country.

To promote the development of a competitive domestic private sector that will spearhead

economic growth and development.

To develop a self-sustaining economy in which there are opportunities for all

Zimbabweans to attain better and satisfactory living standards.

Policy Strategies

In order to accelerate the Indigenisation process the government adopted six main policy

strategies which are:

1. Increasing private investment and participation in the economy by promoting the

establishment of new indigenous enterprises, joint ventures, buying of shares in existing

companies; privatisation of state enterprises; takeovers; employee share ownership

schemes or trusts and subcontracting by large businesses to indigenous companies.

2. Promoting industrialisation of the economy

3. Land redistribution to provide indigenous people with productive and adequate land in

order to broaden the stakeholder base.

4. Promote skills development programmes which would empower the indigenous

majority for active participation in the economy.

5. Mobilisation of financial resources for medium term to long term finance.

6. Review those laws that constrain Indigenisation and economic empowerment.


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Creation of the National Investment Trust in Zimbabwe

The National Investment Trust Fund was created by the Government of Zimbabwe in

September 2000 to promote the cause of Indigenisation among Zimbabweans. Its mandate

was to promote the acquisition of shares in previously government owned enterprises, to

assist indigenous people to acquire Greenfield projects through provision of funding

projects, funding management buy mismanagement buy outs and bridging finance.

The Indigenisation and Economic Empowerment Act provides the legal framework for the

implementation of the Indigenisation and economic empowerment agenda in a market

driven economy. The Act is a strategic and transformative legal framework aimed at

mainstreaming indigenous Zimbabweans into the economy in a cross cutting manner

The Indigenisation and Economic Empowerment Act [Chapter 14:33].

Noteworthy provisions under the Indigenisation and Economic Empowerment Act to are:

The key objective of the Act is to achieve at least 51% indigenous shareholding in the

majority of businesses in all sectors of the economy.

The provision that indigenous Zimbabweans must be equitably represented in the

governing bodies in all these businesses.

The provision for the establishment of the National Indigenisation and Economic

Empowerment Charter. The Charter will provide for ethical business conduct for all

businesses and outlines the fundamental principles, which have to be observed and

followed by businesses as they undertake their day to day activities.

The provision for the establishment of the National Indigenisation and Economic

Empowerment Fund. The Fund will provide financial assistance for share acquisition,

warehousing of shares under employee share ownership schemes or trusts, management

buy ins and by outs, business startups, consolidation and expansion.

Ladies and Gentlemen, I would like at this juncture to take note of the Indigenisation and

economic empowerment fund policy and strategic thrust in resource mobilisation of the

working class, the inherent owners of ESOPS and the middle class who actively participate

in management buy outs and buy ins as the government rebuilds the middle class through

the above mentioned funding windows.

General Regulations and Workers


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Part IV of the Indigenisation and Economic Empowerment Act provides that the Minister,

after consultation with the National Indigenisation and Economic Empowerment Board,

can make regulations providing for any matters required or permitted to be prescribed or

which in his or her opinion are necessary or convenient to be provided for in order to

achieve the objectives of the Act4.

It is under this purview that the government saw it fit to legislate for meaningful

streamlining of local communities and workers into the mainstream economy through

encouragement of employee share ownership schemes.

Employee Share Ownership Schemes or Trust

The Regulations encourage that Employee Share Ownership Schemes or Trusts be

established and taken into account in assessing the extent to which a business complies

with the requirements of the Act. Such schemes or trusts shall be constituted through a

Deed of Trust registered with the Deeds Office.

Government’s Rationale and Perspective

The Government has noted that workers have been sweating out capital investment and

productivity and profits are at an all-time high. Whilst Government recognises the

importance of good corporate governance and good management principles in general

there is no substitute for ownership in terms of motivating employees and management to

be productive. This arrangement has the following advantages:

Increased productivity

Improved industrial relations Attracts, retains and motivates key and competitive employees

Improved retirement security

Reduced demand on social responsibility

Seeks to achieve broad based Indigenisation and encourage ownership by various

indigenous groups as well as redressing gender imbalances.

Besides ownership, management control should also be in the hands of indigenous

Zimbabweans as this reflects indigenous empowerment in terms of policy formulation and

decision making within a business.

It is Government’s perspective that it is human nature that almost all individuals want to

establish economic security for themselves and their families as soon as possible during

their working years. In today’s fast moving world everyone knows that merely having a job

4 See also s. 3(4) of the Act.


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does not ensure economic security the only real assurance of economic security is through

the ownership of capital.

Industrial enterprises increase at a much faster rate and at a much greater rate than other

types of capital; hence government has noted that the value of industrial enterprises

represents a much greater portion of the wealth of a nation than all other forms of capital.

Accordingly, in view of the fact that almost all individuals desire economic security and in

view of the fact that the vast majority of a nation’s wealth is represented by industrial

enterprises, it is clear that economic security can be achieved only if the economic system

of the country is structured to provide the maximum opportunity for the indigenous people

of that country to acquire stock ownership in that country’s industrial enterprises. In any

system there are always losers and the Government of Zimbabwe is determined to ensure

that it places the working class at a centre of any resource ownership reform as they drive

the transformation vehicle reforming the racially skewed economic ownership structure.

History has taught us that the collapse of communism was a result of a flaw in the system

which promised equality but stifled any form of individual initiatives such as placing a

modicum of purchasing power into the hands of workers in the form of employee share

ownership schemes.

Conclusion

Let me conclude by observing that indigenous Zimbabweans irrespective of skill or class

position agree across the board that the economic activities in the country are dominated

by non-indigenous Zimbabweans. Government concedes that the empowerment of

workers is central to success in the new knowledge driven enterprises. Whilst the

government of Zimbabwe recognises the historic role of the working class in economic

progress towards an equitable society, the progressive role of the middle class cannot be

over emphasised, hence the Government’s Indigenisation and Economic Empowerment

Agenda has to rebuild the Zimbabwean middle class which had almost disappeared.

The Indigenisation and Economic Empowerment agenda has opened a new chapter of

African discourse anchored on ideas of economic democracy, and need for the development

of a national bourgeoisie class built around popular livelihood, popular participation and

popular capitalism in an open society.

We stand firm on our principles, any company that is doing business in Zimbabwe must

have a clear plan, agreed to by my ministry to comply with 51% Indigenous shareholding

requirement as prescribed by the law. We remain resolute in enforcing the Indigenisation

legislation and punitive measures for non-compliance such as cancellation of business

licenses shall be enforced.


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I urge all of you to be wary of traitors among us black people who are being used as the

biggest defenders of white capital. I thank you.


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BUSINESS PERSPECTIVES ON INDIGENISATION AND EMPLOYEE SHARE OWNERSHIP SCHEMES

TAWANDA NYAMBIRAI5

Introduction

The need to empower historically disadvantaged people is well recognised internationally. In

its resolution that prohibits discriminatory treatment, the United Nations Economic and

Social Council exempted from the prohibition, special measures designed to overcome past

discrimination against certain groups6.

What is controversial about the Zimbabwe Indigenisation program is that:

The timing of the implementation program will make the program compete financial

resources with businesses that require capitalisation.

The program over emphasises the acquisition of a controlling shareholding interest in

companies that are majority owned by non-indigenous people at the expense of other

alternatives that could bring prosperity to indigenous people.

The program fails to correctly identify the parties whose obligations it should be to fund the

correction of marginalisation of the indigenous people, or to come up with corrective

measures that have the least impact on the economy generally.

The Timing of the Implementation of the Indigenisation was wrong.

As at 4 October 2010 the Zimbabwe Stock Exchange was capitalised at US$3.796 billion.

The Zimbabwe Stock Exchange is generally undervalued. From the point of view of a well-

resourced buyer who is optimistic about the future of this country, this is the time to buy,

and therefore to implement the empowerment program. However, a closer analysis of the

companies and the environment in which they operate shows that this is not the right time

for the implementation of the empowerment program.

At independence, the country had a GDP of $6.7 billion7. Although some short spells of

economic decline were experienced over the years, the economy generally grew to a GDP of

$8.4 billion in 1997, except for 2001 and 2002 when the country’s GDP grew to $10.3

5 Chief Executive Officer, TN HOLDINGS LIMITED 6 United Nations Economic and Social Council: Commission on Human Rights: Sub-Commission on the Promotion and Protection of Human Rights: Fifth Session: Agenda Item 4, Adopted at its 22nd Meeting, on 13 august 2003, 7 http://www.tradingeconomics.com/zimbabwe/gdp-us-dollar-wb-data.html


15

billion and $21.9 billion respectively, the economy has been in general decline, with the

2009 GDP being $4.4 billion8.

From a high of $444.3 million or 7.32% of GDP in 1998, Net Foreign Direct Investment

inflows were at US$52 million in 2008 and $60 million, or 1.3% of GDP in 20099. As at 18

June 2010, the total banking sector deposits amounted to $1.8 billion of which 90% are

short term, against loans and advances of $1.1 billion10.

All these statistics show that there is not enough capacity in the economy, not only to fund

the recapitalisation of business, but also fund the acquisition of interest in business, let

alone the acquisition of majority interest. Therefore, the implementation of the

Indigenisation program is at a time when focus must be on recapitalising business to bring

them back into productivity introduces a competing demand on the limited financial

resources available in the economy. Those indigenous people who will be fortunate enough

to succeed in getting a piece of the foreign owned business will be saddled with a heavy

burden to recapitalise the business. As it is, both locally owned and foreign owned business

in Zimbabwe are grossly undercapitalised, with a significant number of them under care of

maintenance. Beyond illegal expropriation of foreign owned business without

compensation, there is no viable funding model for Indigenisation right now.

Local banking institutions do not have the capacity to fund Indigenisation. They simply do

not have a deposit base with sufficient tenor to fund the program. Foreign lending

institutions are not lending to Zimbabwe, with the little facilities extended to Zimbabwe,

largely by Afreximbank, being targeted at working capital and capital expenditure for

business. Government itself has no money, with total foreign debt of $6.1 billion.

Introducing an Indigenisation levy on business at this stage will cripple them as all

business is battling to survive at the moment.

It is for these reasons and not political reasons often quoted why business and investors

have reacted negatively to the announcement of the plans to implement the Indigenisation

program now.

The Objective of the Indigenisation program is wrong

8 IMF: Zimbabwe: Challenges and Policy options after Hyperinflation, p 14 9 Gwenhamo F (2008). The Role of Institutional Factors; Foreign Direct Investment; net Inflows (BOP; US Dollar) in Zimbabwe. (2010) http://www.tradingeconomics.com/zimbabwe/foreign-direct-investment-net-inflows-bop-us-dollar-wb-data.html 10 Mid-Year Monetary Policy Statement, July 2010, page 8


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The main objective of Indigenisation legislation is to put the ownership of the majority

shareholding in Zimbabwe business in the hands of indigenous Zimbabweans. Ownership

does not necessarily translate to prosperity, or an increase in wealth. Recent corporate

actions such as the reported listing of Masawara on the alternative exchange in London,

AIM shows that experienced Zimbabwean business people have learnt the lesson that a

small piece of a bigger cake is much bigger and better than a big piece of a small cake.

Zimbabweans are among the very few of the populations in the emerging markets who had

a good culture of saving through investments in the stock market and in the money market

through unit trusts. Prior to the collapse of the Zimbabwe economy, our Stock Exchange

was among the best performing stock exchanges on the continent. There are thousands of

Zimbabweans who have direct investments on the Stock market, with several thousands

more having indirect interests through pension funds.

The emphasis on majority ownership of Zimbabwean businesses by indigenous people as

the ideal negates the significant benefits that could be achieved through the inculcation of a

culture of investment and saving.

I had the privilege in 2006 of talking to one of the wealthiest white Zimbabweans, Mr. Roy

Turner at his very modest house. I was leading the recapitalisation of Kingdom Financial

Holdings Limited prior to its merger with Meikles. Roy was one of the top ten shareholders

of Kingdom Financial Holdings at that time, so I had to meet with him to ask for support.

His story needs to be told properly in the Indigenisation context, yet I do not know it all.

The little I understood from our conversation is that Roy most probably was a civil servant

for most, if not all his working life. He saved a percentage of his monthly income, every

month and invested it in the stock market. He participated in every new listing that took

place, being a minority shareholder invariably in every listed company which he invested.

His example shows that prosperity, or wealth is not necessarily brought by the ownership

of a majority interest in a company.

Our experience with land reform has taught us that they are some finer issues that are

more important than mere control or ownership of a business undertaking. Giving

ownership, or control of a business to someone who knows very little about business, or

who has no passion for a particular business will yield no better result than the production

of the so called cellphone farmers.

If the objective of the empowerment program was to the indigenous people more

prosperous, or wealthier, the following pursuit would have been worthwhile.


17

The Introduction of an Environment that is Conducive to the Re-introduction of

Share Option, and Share Ownership Schemes of Employees

Share option schemes for employees were very fashionable and played a significant role in

the empowerment of employees. The schemes tended to align the interests of the

employees with those of other equity holders and thus play a significant role in increasing

profitability of business and reducing incompatibilities in the work place that normally

result in work stoppage through collective job action, or lock outs. In these schemes, the

burden of funding an acquisition of interest in the business was considerably reduced as

the time gap between the granting of share options and the date of exercise of options,

usually 3 to 10 years, allowed for significant capital growth with the result that a part

disposal was enough to fund the purchase of the whole grant. However, these schemes

were discontinued when ZIMRA decided to levy capital gains tax on the value of the full

grant on the date of exercise of the option even if the employee did not dispose of his

shares. This eroded the benefits of empowerment. The Indigenisation legislation should

have encouraged such schemes by reversing the adverse tax determinations by ZIMRA that

tended to disempower the indigenous people.

The Indigenisation legislation should have introduced rewards for companies that

implement the profit sharing schemes for employees. Profit sharing schemes do not come

with a burden to inject financial capital into a business. Instead they recognise the value of

human capital in driving the profitability of a business. The Indigenisation legislation could

assist in making it clear that tax deductible, and by granting Indigenisation credits to

companies that allow profit sharing with employees.

At a time when locally owned companies require recapitalisation, the Minister of

Indigenisation and Empowerment should recognise long term loans, business transactions

perhaps on a profit sharing basis and other investments by foreign owned businesses with

locally owned businesses as warranting Indigenisation credits.

The Indiscriminate Targeting of Non–Indigenous Companies is wrong

The Indigenisation regulations target business generally to contribute to the payment of an

Indigenisation levy. Consequently, business that did not benefit from the marginalisation of

indigenous people prior to independence would be required to carry the burden of paying

for sins they did not commit. Even businesses owned by indigenous people might find

themselves carrying the same burden. Further, the targeting of non-indigenous

Zimbabweans whether or not they benefited from wrongs committed on indigenous people

is wrong or immoral.


18

From the GDP statistics that have already been referred to, most of the growth in

Zimbabwe economy took place after independence. There was more foreign direct

investment into the country than they was before independence because of economic

sanctions imposed after the Unilateral Declaration of Independence (U.D.I.)11. Most of the

sectors of the economy, including agriculture, mining, horticulture, tobacco, manufacturing

and tourism saw significant investment after independence than before. To now turn on to

those investors who supported the independence government by investing into various

sectors of the Zimbabwean economy on the basis that they are non-indigenous is not only

unfair, but is unwise as foreign investors tend to avoid countries that are not consistent

with application of their policies.

Thus, a policy focused on social responsibility, empowerment of communities in areas

endowed with natural resources, equitable remuneration and labour policies, the

protection of the environment, prevention of transfer pricing, prevention of export of raw

natural resources without value edition, and the full repatriation of export proceeds would

have been more effective as priorities for the Zimbabwe Indigenisation program. Thank

you.

11 1965


19

“A REVOLUTION BENEFITS THOSE WHO START IT...” THE WORKING CLASS AND THE INDIGENISATION AND EMPOWERMENT AGENDA IN ZIMBABWE MUNYARADZI GWISAI12

Introduction

From the end of 2007 the Zimbabwe state promulgated radical nationalist economic laws

aimed at fundamentally restructuring the colonial-inherited property relations of production

in the country in a manner similar to the Fast Track Land Reform Programme. The latter had

led to the expropriation of white farmers and their substitution by the black bourgeoisie. The

general aim is to use Indigenisation as a launch-pad for accelerated economic transformation

into a developed capitalist economy anchored by black bourgeois elite in partnership with

global capital, the central aim of the black middle classes in the anti-colonial struggle. The

second objective is a political one, namely, the survival and long-term political reproduction

of the political elites in the ruling party, Zanu PF, who face unprecedented social and political

revolts. Indigenisation is to be used as the central strategy to rally popular support, just like

land was used in the preceding decade.

Indigenisation in Zimbabwe

The cornerstone law is the Indigenisation and Economic Empowerment Act (“the Act”) and

supporting subordinate legislation.13 The declared objective of the Act is to ensure at least

fifty-one per centum ownership and control of every public company and other significant

businesses by indigenous Zimbabweans, who are defined to primarily mean blacks.

Auspiciously, the Act’s date of commencement was set for 17 April 2008, a day before the

National Day of Independence and a month after the March 2008 General Elections.

The purpose of this article is to give a general critique of the Indigenisation and

empowerment laws in relation to their underlying theoretical underpinnings and their

potential viability in changing the country’s economy and legal and political superstructure.

Bolshevik leader, Leon Trotsky had argued that this was highly unlikely given the national

bourgeoisie’s myriad but subordinate ties to the elites of the Global North, the uneven and

inequitable structure of the global economy in favour of the later and the national

12 Munyaradzi Gwisai teaches Labour Law and History of Roman and Roman Dutch Law at the Faculty of Law, University of Zimbabwe. He is the chairperson of the Zimbabwe Labour Centre and a long-standing member of the International Socialist Organisation (Zimbabwe). 13 [Chapter 14:33]; the Indigenisation and Economic Empowerment (General) Regulations, S.I. 21 of 2010 as amended by the Indigenisation and Economic Empowerment (Amendment) Regulations, 2010 (No.2), S.I. 116 of 2010 and the Indigenisation and Economic Empowerment (General) (Amendment) Regulations, 2001 (No. 3) S.I. 34 of 2011 as read with Government Gazette (Extraordinary) General Notice 114 of 2011


20

bourgeoisie’s greater fear of triggering social revolution from the lower classes which will

sweep away all capitalists including the national ones.14 However, contrary to Trotsky’s

prognosis, starting in the second half of the 20th century, the national bourgeoisie of several

countries in the Global South were able to make such unlikely breakthrough including

South Korea, Malaysia, Singapore, and most importantly India and China.

A key aspect of these countries’ development path was that ownership and control of key

portions of the national economy was by the state and, or indigenous elites supported by a

strong authoritarian state. We explore to what extent the legal framework that underlies

the Zimbabwean Indigenisation programme can be able to facilitate such similar

breakthrough and whether in fact the laws are beneficial to all indigenous Zimbabweans, in

particular working people, as they claim.

Global Historical Context: Unprecedented Crisis of Capitalism

The Indigenisation phenomena is not peculiar to Zimbabwe but has occurred across the

Global South taking various forms. These have included the opportunistic and corrupt

types as those associated with the privatisation programmes of the 1980s and 1990s in

places like Egypt, Nigeria, Zambia and today the BEE programme in South Africa. Other

examples have included genuine but ultimately doomed nationalist initiatives to counter

the debilitating impact of the crisis of neoliberal capitalism as we have seen with the

nationalisation programmes in Venezuela and Bolivia.

The Indigenisation and economic nationalism phenomena arises from the current

structural general crisis of capitalism, especially the failure of the IMF-inspired neoliberal

policies, which has seen growing class struggles between the capitalist classes and working

people as well as intra-ruling class struggles between the multinational elites of the Global

North and the national elites of the Global South. The struggles of working people for an

equitable share of the product of their labour or natural resources of their communities,

has forced elites to make concessions such as employee and community share ownership

schemes or global elites to make concessions in the form of indigenisation arrangements.

The overall aim is to co-opt and stifle militant class struggle and pre-empt social revolution

which will overthrow the entire capitalist order.

The basic cause of the above general crisis of capitalism is the disjuncture between today’s

capitalist private and nation-based relations of production in contradiction to productive

forces which have outgrown the nation state and become globalised requiring an

accompanying global legal and political superstructure based on globalised socialised

14 Trotsky L, Permanent Revolution and Results and Prospects (Pathfinder, 1970)


21

property and production for human need rather than private profit, in other words

socialism.

Not surprisingly bourgeois elites resist this logical dynamic and instead try various

reformist (non-revolutionary) alternatives, of which indigenisation programmes are

increasingly important.

The Zimbabwe Context: Rising Struggles in Periphery Neo-Colonial States

The disastrous failure of the neoliberal Economic Structural Adjustment Program (ESAP)

policies of the 1990s and the accompanying mass impoverisation of working people and

sections of the middle classes led to massive social and political revolts which eventually

led to the formation of a formidable trade union-led but business and Western supported

cross-class party, the Movement for Democratic Change, (MDC) led by Morgan Tsvangirai.15

In order to survive, President Mugabe and Zanu PF, from 1999 onwards, made a partial

reversal on the neo-liberal policies and rallied rural support by embarking on a violent Fast

Track Land Reform Programme based on a nationalist and anti-Western axis whilst also

massively escalating state repression against the opposition, trade unions, civic society and

the private media.16 In response global, local business elites and Western governments put

the economy under siege through formal and informal sanctions which together with the

fall in agriculture production had by early 2008 led to a near collapse of the economy with

inflation over 250 million.

Not surprisingly, the political fortunes of Zanu PF have taken a dramatic and

unprecedented decline. It lost the February 2000 Constitutional Referendum and lost to

MDC parliamentary seats in virtually all urban constituencies in the April 2000 general

elections. In the March 2008 Elections, Zanu PF for the first time lost its parliamentary

majority to the combined opposition with Tsvangirai defeating Mugabe in the first round of

the presidential elections. Zanu PF and Mugabe have only remained in power because of

repression and the Government of National Unity established under the SADC – brokered

September 2008 Global Political Agreement between Zanu PF and the two MDC formations.

However, the coalition government has been very fragile and conflict is again on the rise

with elections likely to be held within the next year. Such elections are likely to be a

milestone that could possibly signal the end of the Mugabe regime.

15 See generally: Bond P and Masimba M, Zimbabwe’s Plunge: Exhausted Nationalism, Neo-Liberalism and the Search for Social Justice (University of Natal Press, 2002); Gwisai M, “Revolutionaries, Resistance and Crisis in Zimbabwe” in Zeilig L (ed.), Class Struggle and Resistance in Zimbabwe (New Clarion Press, 2002) 16 ibid


22

Thus the ruling nationalist elites have come under unprecedented siege from an

ideologically hostile and powerful internationally and business -supported opposition. In

such battle for their very survival, the bedrock strategy of the ruling party elites has been

to try and rally popular support around a strategy based on authoritarian political and

economic nationalism: to threaten business with expropriation if it continues supporting

the opposition and portraying such opposition as puppets of Western imperialism and

Rhodesian settler capital. The Fast Track Land Reform Programme allowed them to

remobilise their rural poor support base and survive the elections of the last decade. The

attempt now is to extend the same to the rest of the economy through the indigenisation

agenda as the country’s political crisis reaches a defining climax.

The Zanu PF elites also have a long term vision beyond immediate political survival, namely

fundamental restructuring of the property relations in the country to give local black elites

a more significant role in the commanding heights of the economy in partnership with

global capital but doing so in a partisan manner that favours elites aligned to the ruling

party. Should they succeed in this that will lay the basis for them and their successors’ long-

term political dominance in the country as the new major economic class in the country, as

we saw in post-Soviet Union Russia or Nigeria, post the military juntas?

This is why an increasing number of hitherto non-Zanu PF black elites are being lured

towards the indigenisation and empowerment agenda although calling for it to be more

inclusive of the various sections of the black elites. Prominent amongst these are Deputy

Prime Minister Arthur Mutambara and banker Nigel Chanakira. On the other hand, black

business elites with close ties to local white and international capital, such as banker

Tawanda Nyambirai, who feel they may not stand to gain are vigorously opposed. Also in

opposition, albeit more cautiously, are many workers and most trade union leaders

together with their intellectual mentors like academics Lovemore Madhuku and Brian

Raftopoulos. These, who, just barely surviving from the recent economic horrors and

mindful of the fate of farm workers in the land reform programme, are fearful that the

indigenisation programme could herald a second if not worse economic collapse and loss of

their livelihood. In a society with over 90% unemployment they hold dear to their jobs

even if these only largely give them starvation slave wages. Hence the 2011 ZCTU May Day

Commemorations were held under the theme: “Respect our Rights: Save the economy: Save

our Jobs,” a thinly veiled attack on the indigenisation agenda.

The Zanu PF elites are unlikely to be deterred. Too much is at stake. And drawing lessons

from and taking advantage of the land reform programme, the ruling nationalist elites feel

big business, especially in mining, will play ball cognisant of what happened to the white

farmers. Just to make sure, they seek to draw foot soldiers for the programme through

initiatives that will grant some share of the indigenised wealth to sections of the working


23

class and peasantry, but as in the land reform programme, a subservient and ultimately

insignificant share.

General Summary and Critique of the Indigenisation Laws

Whilst the Indigenisation and Economic Empowerment Act is the centre-piece of the indigenisation

programme, it is pertinent to remember that the legal frame-work governing indigenisation is in

fact broader, affecting diverse areas of the law including constitutional, property, company, tax and

labour law. Besides statute and common law, international law is also of significance. Below we

make a summary of some of the most important salient aspects of the indigenisation laws including

scope and application, implementation measures, funding and enforcement.

Objective, Scope and Application

The main objective of the Act is the indigenisation of the economy and the economic

empowerment of “indigenous Zimbabweans.” Section 2(1) of the Act defines “indigenous

Zimbabwean” as:

“any person who, before the 18th April, 1980, was disadvantaged by unfair discrimination on

the grounds of his or her race, and any descendant of such person, and includes any company,

association, syndicate or partnership of which indigenous Zimbabweans form the majority of

members or hold the controlling interest.”

This definition would first and foremost mean “indigenous Zimbabweans” are local black

people, because these were the ones who were primarily excluded, explicitly by law and

indirectly through various measures and policies, from equal participation in the economic

and political domains during colonialism, in favour of whites. Conversely it would therefore

exclude all whites. It also on the face of it potentially it may or may not apply to mixed race

persons and those of Indian or Asian descent to the extent to which it is shown they got

preferential racial treatment under colonialism. However, this is a vague and unsatisfactory

area of the law and is a gap that needs redress. The equivalent South African law for

instance explicitly includes “coloureds and Indians” in the definition of “black people.” 17

Also problematic with the definition is that on the face of it excludes the state and statutory

corporations, expressing both the elites’ objective of directly enriching themselves as well

as their ideological neoliberal hostility to anything remotely connected with nationalisation

which is associated “with failed and discredited socialism.”18

17 s 1 of the Broad-Based Black Economic Empowerment Act 53 of 2003 defines “black people” as “a generic term which means Africans, Coloureds and Indians.” 18 For detailed discussion on this point refer to page 20 infra


24

Detractors of the indigenisation programme and legal philosophers of a positivist bend

argue that such laws violate the fundamental human rights of freedom from discrimination

on grounds of race or national origin and the right to equal protection of the law which are

enshrined in the Declaration of Rights of the Constitution of Zimbabwe and international

human rights law.19 That they in fact amount to reverse racism, especially against non-

indigenous persons who may well have built their business after independence or that the

definition of “indigenous Zimbabwean” is too loose potentially extending to even the

Maoris in New Zealand. 20 A related argument is that the laws amount to an

unconstitutional and illegitimate violation of the right to property.21

These arguments are not sustainable. Institutionalised, state and law enforced racial

discrimination against all strata of black people was the centre-piece of the colonial legal

and political system. This was achieved through a plethora of legal instruments including

constitutional laws, general statutes expropriating land and other means of production like

cattle from the local blacks and vesting it in the colonial state and white settlers; 22

institutionalised discrimination against black farmers; 23 prohibition of blacks from

engaging in commerce and retail in the major urban centres or mining;24 or discrimination

against black workers; discrimination in education opportunities or the right to vote and

hold public office including in the judicial.25 Modern jurisprudence and international

human rights law recognise that the right to equality and freedom from discrimination

19 Cited provisions include sections 23 and 18 of the Constitution of Zimbabwe. The freedom from unfair discrimination is provided in most international and regional human rights instruments such as: Arts. 2 and 7 of the United Nations Universal Declaration of Human Rights (1948); Arts 14 and 26 UN International Covenant on Civil and Political Rights (1966); and Art 2 of the African [Banjul] Charter on Human and Peoples Rights, 1981. See generally – Zimbabwe Lawyers for Human Rights, “Submissions on the Indigenisation and Economic Empowerment (General) Regulations, 2010” Legal Monitor 2010 20 Matyszak D, “Everything you ever wanted to know about Zimbabwean Indigenisation and Economic empowerment legislation: But then some (quite rightly) were too afraid to ask,” (Unpublished, Research and Advocacy Unit, Harare, 2010); Gonzales S, “Affirmative Action and the jurisprudence of equitable inclusion: Towards a New Consensus on gender and race relations” 7 Journal of Baha’i Studies 2 (1988); Chivale T, “Public policy for private gain? Unpacking and reviewing the agenda and objectives of the empowerment policy in Zimbabwe with particular reference to the Indigenisation and Economic Empowerment Act (Chapter 14:33)” (LLBs Dissertation, 2011, University of Zimbabwe) 7 - 9 21 ZLHR, “Commentary on the new Indigenisation Requirements for the Mining Sector,” Legal Monitor, 18 April 2011 22See generally: The Matabeleland Order in Council, 1894; Southern Rhodesia Order in Council, 1898; the Matabeleland Cattle Proprietary Regulations No 49 of 1895; the 1923 Southern Rhodesia Constitution; the 1969 Rhodesia Constitution, s 80 and the Land Tenure Act, No. 55 of 1969. For judicial confirmation of the initial expropriation of the blacks see – In re Southern Rhodesia 1919 AC 221. Generally, see Palley C, Constitutional Law of Southern Rhodesia (&&&) 110; Phimister I, An Economic and Social History of Zimbabwe 1890 – 1948: Class Struggle and Capital Accumulation (Longman, London, 1988) 23 Over and above the unjust and discriminatory land tenure system cited above see also statutes like the Maize Control Act, 1930; and the Land Husbandry Act, 1951 (&&&) 24 See ILO, Labour Conditions and Discrimination in Southern Rhodesia (ILO, Geneva, 1978) 25 Legislation like: Registration of Natives Regulations, 1895; Master and Servants Ordinance No 5 of 1901; Education Ordinance No 1 of 1903; Immorality Suppression Ordinance No 9 of 1903 and the Industrial Conciliation Act No 10 of 1934. See generally Gwisai M, Labour and Employment Law in Zimbabwe: Relations of work under neo-colonial capitalism (ZLC and CLI, Harare, 2006) 17 - 20


25

includes within it the right to effect remedial and restitution laws, policies and measures in

favour of historically and socially disadvantaged groups, such as women and racially or

ethnically marginalised groups like blacks. This is in order to ensure that the law achieves

substantive equality as opposed to mere formal equality.26 Thus the Human Rights

Committee on the International Covenant on Economic and Social Rights has noted:

“Not every differentiation of treatment will constitute discrimination if the criteria for such

differentiation are reasonable and objective and if the aim is to achieve a purpose which is

legitimate under the covenant.”27

The principle is now directly incorporated under section 23 (3)(g) of the Constitution of

Zimbabwe which states that nothing contained in any law shall be held to unlawful

discrimination to the extent that the law in question relates to:

“... the implementation of affirmative action programmes for the protection or advancement of

persons or classes of persons who have been previously disadvantaged by unfair

discrimination...”28

It is also recognised in most recent regional constitutions, statutes and international

human rights laws.29 In fact the equivalent South African statute explicitly states its

objective as to empower “black people” and is so worded.30 The racially-based and gender

inequitable consequences of colonialism cannot be addressed without such remedial and

restitution measures such as affirmative action and mandatory quotas for the adversely

affected groups. The argument that the definition is so broad as to accompany all blacks

including foreign ones is not persuasive. The term being defined is “indigenous

Zimbabwean.” (emphasis added). It follows therefore that the historically disadvantaged

person on race grounds has to prove first that she or he is a “Zimbabwean” before they can

qualify. Unless one can therefore prove Zimbabwean nationality one cannot qualify.

Right to Property and Indigenisation

26 Currie I and Johan de Waal, The Bill of Rights Handbook 5th ed. (Juta, Wetton, 2005) 201; National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) paras 60-61; United Nations, The Legal Empowerment of the Poor, United Nations General Assembly Sixty Fourth Session, Item 58 Parag 3. 27 General Comment No. 18. See generally, Sithole G, “‘A Revolution benefits those who start it.’: A Critique of the Indigenisation and Economic Empowerment Act [Chapter 14:33] 2008 and the Indigenisation and Economic Empowerment (General) Regulations, 2010” (LLBs Dissertation, 2011, Faculty of Law, University of Zimbabwe) 24 - 25 28 Inserted by s 4 of Act 5 of 2005 – Constitution of Zimbabwe Amendment No. 17 29 For instance, s 9 (2) of the Constitution of South Africa; Art 23 Constitution of Namibia; Art 2, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979; Art 2, the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, 2003; and the SADC Declaration on Gender and Development, 1999, Para H (ii) 30 See s 2 as read with s 1 of the Broad-Based Black Economic Empowerment Act 53 of 2003


26

The indigenisation laws also raise issues pertaining to property, whether they are a

legitimate infringement on the right to property enshrined under constitutional and

international laws.

A broad right to property is recognised under some but not all international human rights

instruments. For instance, Article 17 of the Universal Declaration of Human Rights

provides:31

1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property.”

Section 16 (1) of the Constitution of Zimbabwe provides for protection from compulsory

deprivation of property other than in the specified circumstances. It provides that, subject

to the special provisions on compensation for the compulsory acquisition of land for

resettlement in terms of section 16A, “no property of any description or interest or right

there in shall be compulsorily acquired excerpt under the authority of a law” that requires:

(a) in the case of land ... that the acquisition is reasonably necessary for the utilisation of the

land for: (A) resettlement for agricultural or other purposes; or (B) for purpose of land

reorganisation, forestry, environmental conservation or the utilisation of wild life or other

natural resources; or (C) for the relocation of persons disposed in consequence of the

above; or

(b) in “the case of any property, including land, or any interest or right therein, that the

acquisition is reasonably necessary in the interests of defence, public safety, public order,

public morality, public health, town and country planning or the utilisation of that or any

other property for a purpose beneficial to the public generally or to any section of the

public;” and

(c) that the specified acquisition formalities in relation to due notice, compensation and right

to appeal to the courts are fulfilled.

The term “property” has been held to be of very wide meaning... “(it) seems to embrace the

widest possible range of property,”32 because it refers to “property of any description or

interest therein.” This is also consistent with the common law position which provides for

31 See also – Art 14 of the African [Banjul] Charter on Human and Peoples’ Rights (1981). Note though that no such right is provided under both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. There is a debate as to whether in fact the right to property is a fundamental human right – see Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) paras 71-4; Currie and Johan de Waal op cite 533 32 Hewlett v Minister of Finance 1981 ZLR 571 (S) at 590


27

an all-embracing definition of right to property, covering protection of:33 ownership of

property; rights in property, including rights to use, dispose, alienate the property or

exclude other people from it; and to interests in property, such as protection from acts or

measures that lead to an unlawful diminution of the value of the property.34 Therefore

under the Zimbabwean constitution the right to property is not absolute. The state is

entitled to enact laws providing for compulsory acquisition of all property as long as such

laws are reasonably necessary for a specified public purpose, 35 and comply with the

following acquisition formalities:36

(a) reasonable notice of the intention to acquire the property is given;

(b) payment of “fair compensation for the acquisition before or within a reasonable time” of

the acquisition, with the exception that there is no obligation on the state to pay

compensation for agricultural land compulsorily acquired for resettlement;37

(c) provides an obligation on the acquiring authority, if the acquisition is contested, “to apply

to the High Court or some other court before, or not later than thirty days after, after the

acquisition for an order confirming the acquisition;” and

(d) enables a party whose property has been acquired “to apply to the High Court or some

other court for the prompt return of the property if the court does not confirm the

acquisition,” and to appeal to the Supreme Court; and

(e) “enables any claimant for compensation to apply to the High Court or some other court for

the determination of any question relating to compensation and to appeal to the Supreme

Court” excerpt that that such law need not make this provision where the property is land

which is substantially unused or used for agricultural purposes, environmental

conservation, utilisation of wild life or other natural resources and for resettlement.

The above is consistent with those international instruments that provide for the right to

property. For instance, Art 14 of the African [Banjul] Charter provides:

“The right to property shall be guaranteed. It may only be encroached upon in the interest of

public need or in the general interest of the community and in accordance with appropriate

laws.”

33 See Linington G, Constitutional Law of Zimbabwe (Legal Resources Foundation, Harare, 2001) 447; Currie I and Johan de Waal, op cite 536 - 537 34 In Diepsloot Residents Association v Administrator, Transvaal 1993 (3) SA 49 (T) the establishment of a squatter settlement near an established suburb was held to violate property rights through alleged increased crime and pollution from such settlement. 35 Section 16(1) (a) (i) (ii). See also Art 14 of the African [Banjul] Charter on Human and Peoples’ Rights (1981) 36 Section 16(1) (b) (c)(d)(e) and (f) 37 Section 16(1) (a) (i) (ii). See also Art 14, African [Banjul] Charter on Human and Peoples’ Rights (1981).


28

Further it is now a well-established principle of international law and constitutional

practice to a people’s right to national economic sovereignty, to ownership and control of

natural resources and strategic businesses essential to national development38 including

the righty of the state to expropriate private property for the public and social good.39

The above framework on property laws implicates the Zimbabwean indigenisation laws in

several ways. Firstly, whether in fact the indigenisation laws do not amount to compulsory

acquisition of property and whether such compulsory and discriminatory acquisition is

constitutional. Given the wide ambit of the meaning of “property” discussed above, strong

arguments may be made that the laws do in fact amount to compulsory acquisition in so far

as they: adversely restrict or prohibit the right to ownership in the prescribed areas by

non-indigenous Zimbabweans and compelling the sale of majority shareholding or

controlling interests in businesses to indigenous Zimbabweans; discriminate against such

businesses in procurement by government and statutory bodies and are likely to lead to

the diminution of the value of such businesses due to a market restricted to indigenous

persons yet these are persons without much means. It can also be conceivably argued that

at the expiry of the five years should a non-indigenous owner of a business be unable to

find a buyer at the market value of the property, the effect of the Regulations would be to

force them to sell at a rate potentially much lower than the market value to buyers in the

indigenous market.

These measures may therefore potentially be held to be deprivations that amount to

expropriation or compulsory acquisition and for which therefore “fair compensation” must

be paid.40

The question may then arise whether the Act and Regulations are not ultra vires section

16(1) of the constitution. One notes that section 16(1) (a) (i) and (ii) does not explicitly

provide for the ground of redressing of historical or social discrimination as a specified

permissible public purpose ground.

However, there are two pegs on which the constitutionality of the indigenisation laws may

be hung, although whether these are zhing zhongs or not is left for determination by the

38 Art 2 (1) of the International Covenant on Economic, Social and Cultural Rights, 1966; Arts 13 and 14 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979 and Art 22 African [Banjul] Charter on Human and Peoples Rights, 1981. See generally, Simbi O, “The Defence, Enforcement and Funding of Socio-Economic, Labour and Gender Rights” 2 Kempton Makamure Labour Journal 99 (2009) p 101 -103 39 See s 25 Constitution of South Africa; Art 86 Constitution of Mozambique and Art 40 (8) Constitution of Ethiopia; Arts 302-303 Constitution of Venezuela and Art 313 Constitution of Bolivia. 40 Hewlett v Minister of Finance 1982 (1) SA 502 (ZSC); Harksen v Lane 1998 (1) SA 300 (CC); and generally I Currie and Johan de Waal, supra 552


29

courts. The first one is to rely on the generic category of - “a purpose beneficial to the

public generally or to any section of the public.” It may be argued that compulsory

acquisition to promote indigenisation is reasonably necessary to the public in general and

to blacks as “a section of the public,” because:

“a country that is characterised by racially defined wealth disparities may not be socially or

economically stable... (further) ‘the medium to long-term sustainability of such unequal

economies is vulnerable...the socio-political and moral imperative to redress racial

discrimination, is also an imperative dictated by the need for sustainable growth.’ ”41

A better constitutional frame-work though, is like the one provided in section 25 of the

Constitution of South Africa, which provides:

“(2) Property may be expropriated only in terms of law of general application-

(a) For public purposes or in the public interest; and

(b) ....

(4) For the purposes of this section –

(a) The public interest includes the nation’s commitment to land reform, and to reforms to

bring about equitable access to all South Africa’s natural resources; and

(b) Property is not limited to land.”

The above is an explicit provision that directly brings in the principle of equitable

redistribution of all property. The Zimbabwean provision is open to subversion by an

ideologically hostile bench and this is why restructuring of the entire property clause in

any proposed new constitution to include the economic interests of the state and its

obligations to fulfill its socio-economic obligations of citizens, is necessary, if socialisation

of private property, including indigenisation, is to be placed on firmer constitutional pillars.

The second reason is linked to the first, namely that such nationally and racially

discriminatory measures are permissible under section 23(3) (g) of the constitution as

earlier discussed. Further international law recognises the right of peoples and nations to

development and to sovereignty over national resources and wealth. For instance the

African Charter provides for various peoples economic rights, including: to economic

development (Art. 22); to freely dispose of their wealth and natural resources as individual

states or regionally which right is to be exercised in the exclusive interests of the people,

and in no case shall the people be deprived of it (Art 21); and the right to existence (Art.

41 P Benjamin, T Raditapole and M Taylor, Black Economic Empowerment: Commentary, Legislation & Charters (Cheadle Thompson & Haysom Inc Attorneys and Juta, Cape Town, 2009) 1-4


30

20).42 Indigenisation and empowerment programmes, especially where these are broad-

based, can be a powerful tool of realising the socio-economic rights of the majority. The

experience of the Asian countries has shown that a necessary pre-requisite for sustainable

economic development that breaks through the bonds of neo-colonialism is that the

majority or significant section of national resources and wealth must be controlled by the

state and/or the national bourgeoisie. Such national economic sovereignty is recognised in

many recent constitutions and set-ups. For instance, the Botswana state has a majority

stake in the diamond industry, the country’s most valuable economic asset, whilst the

Constitution of Venezuela provides for exclusive state ownership of the “petroleum

industry and other industries, operations and goods and services which are in the public

interest and of a strategic nature.”43

Funding and Compensation issues

Besides the issue of whether indigenisation is compulsory acquisition and lawful, other

related and potentially contentious areas are those relating to the funding of the

programme, the applicable compensation and the role of the judiciary.

If we are correct that the indigenisation laws may potentially amount to compulsory

acquisition of property, then “fair compensation” must be paid before or within a

reasonable time from the acquisition. This will likely present huge problems for the

indigenisation programme, especially around questions of the amount, timing and manner

of compensation and valuation of disposed property as beset the land question for two

decades until Constitution of Zimbabwe Amendment Act No. 16 of 2000 put finality to the

matter through the new section 16A.

The financing and funding arrangements under the Act and Regulations are problematic

and will likely undermine the realisation of the programme. The Act simply calls for

majority share-holding to become vested in indigenous Zimbabweans. It then provides for

the establishment of a National Indigenisation and Economic Empowerment Fund, funded

by amongst others a special indigenisation levy on any private or public company and any

42 Art. 1 of the International Covenant on Economic, Social and Cultural Rights (1966) provides for the right of all peoples to freely dispose of their natural wealth and resources without prejudice to international law and that in no case “may a people be deprived of its own means of subsistence.” Art. 2(1) places a duty on the state to progressively achieve the full realisation of the people’s economic rights “to the maximum of its available rights.” 43 Articles 302 and 303. See also Art. 313 of the Constitution of Bolivia (2008); and Articles 3 and 45 of the Constitution of Mozambique.


31

other business in Zimbabwe,44 and whose objects include the financing of share

acquisitions and warehousing of shares for employee share ownership schemes and

management buy-ins.45 The Regulations as amended place an obligation on the non-

indigenous businesses to “dispose a controlling interest” to indigenous Zimbabweans

within five years. The term “dispose” means “sell, donate or otherwise dispose.”46

The clear and unmistakable impression therefore is acquisition of shares through

commercial market mechanisms or gratuitous donations or loans by the non-indigenous

sellers. The Zanu PF elites seem here to be afraid to go the land reform route which in fact

allowed expropriation without compensation, where the former colonial power did not pay

the disposed white farmer.47 Indeed so strong was the feeling against creating any

impression of expropriation that the term originally used in the Regulations of “cede” was

repealed and substituted with “disposal.”48

The idea of the indigenisation levy and Fund is sound but faces insurmountable practical

problems. It would have been preferable to indicate a minimum threshold for the levy in

the Act to ensure that a minister may not buckle under pressure and impose too low a levy,

given the likely resistance from big business against any significant levy. Then there is the

little matter that such levy needs the approval of the Finance Minister and parliament.49

Given the neoliberal and Western orientation of current Finance Minister Tendai Biti and

his MDC party and that the MDC formations have a majority in Parliament, the idea of the

levy is as good as dead under the current dispensation... and with it therefore the

indigenisation programme. This provision is a clear own goal by the Zanu PF elites who

then had unfettered parliamentary power to craft the Act as they saw fit.

Assuming even that the Fund was to be operational there is a further problem relating to

the mechanism for valuation of the shares to be disposed of. If this is left to the market

value then the Fund or indigenous Zimbabweans in general do not have the capacity to pay

for the billions of dollars required, just like they were unable to do so under the Willing

Seller Willing Buyer arrangement of the Lancaster House Constitution.

44 S 17 (1) of the Act 45 S 12 (2) of the Act 46 S 2 (b) of S.I. 116 of 2010 47 S16A (1) (ii) Constitution of Zimbabwe 48 See for example s 3 (a) of S.I. 21 of 2010 (original). 49 S 17 (1) (3) of the Act


32

A fundamental crying out omission in the Act, Regulations and the National Indigenisation

and Economic Empowerment Charter is the silence on the method to be used for valuing

the shareholdings to be “disposed” of. Such silence will be taken to imply a current market

value basis, more so given the establishment of the National Indigenisation and Economic

Empowerment Fund.

Perhaps cognisant of the above weakness, there has been a belated attempt to redress this

in General Notice 114 of 2011 relating to the mining sector. The Notice obliges the disposal

of the shareholding to “designated entities” within six months of the date of its

publication50. Such entities include the Indigenisation Fund; the Zimbabwe Mining

Development Corporation; a statutory sovereign wealth fund; or an employee share

ownership scheme or management share ownership scheme or a community share

ownership scheme. Critically it introduces a new, non-market based valuation model for

the shares to be disposed of, namely that the:

“value of the shares or other interests required to be disposed of to a designated entity ...shall

be calculated on a basis of valuation agreed between the Minister and the non-indigenous

mining business concerned, which shall take into account the State’s sovereign ownership of

the mineral or minerals exploited or proposed to be exploited by the non-indigenous mining

business concerned.”51

This is a much better and more radical arrangement than previous ones because it

incorporates a non-market based valuation model which takes into account the sovereignty

of the state over the minerals concerned, in other words the right to national economic

sovereignty and development. This is what should have been done in the Act and

Regulations originally.

Problems remain though. An agreement on the valuation between the seller and the

Minister is required; meaning that without the consent of the seller there will be no

transaction. However, the tight time framework of six months within which to indigenise

may induce the sellers to reach an agreement. Moreover, because of the precedence of the

land reform programme many of the big miners may not want a repeat and be disposed

towards an agreement. Already newspaper reports indicate that the biggest miners in

50 S 3 (1) of General Notice 114 of 2011. The date of publication being 25 March 2011, meaning the deadline is 26 September 2011 51 S 3 (2) of General Notice 114 of 2011


33

platinum, gold and diamonds have complied with the provisions of General Notice 114 of

2011 and submitted their provisional implementation plans.52

Should disagreement remain however, there is the likelihood of big business challenging

both the legality and constitutionality of the Notice and Regulations. The Minister has

already signaled his impression that the state may not have to pay anything under the

Notice, something akin to the situation with the land reform programme. The first line of

attack is likely to be that the Notice is ultra vires the principal Regulations and Act in so far

as it compels a six months’ compliance period when the Regulations provide for a five

years’ period. Secondly that disposal to the state or statutory corporations amounts to

nationalisation and that this is not provided for in the Regulations or Act as such entities

are not included within the definition of “indigenous Zimbabwean.”

The key argument though is likely to be that such fast tracked indigenisation within a non-

market based valuation system amounts to compulsory acquisition and that “fair

compensation” has not been paid.53

The courts have developed a class-biased approach as to what amounts to “fair

compensation.” In May v Reserve Bank of Zimbabwe,54 Dumbutshena CJ gave the general

standard to be used when he interpreted the then applicable term “adequate”

compensation to mean that the compensation:

“must be ‘sufficient’ to compensate the owner for the loss of his property, without imposing an

unwarranted penalty on the public because the acquisition is effected in the interest of the

public or community. The interest of the owner of the property must of necessity be balanced

with the interest of the public from whom the money paid in compensation comes.”55

Although this standard seems to call for the need to strike a balance between the public

interest and the interests of those affected by the acquisition, meaning the compensation

payable is not necessarily the equivalent of the market value of the property but may be

52 “Government starts evaluating empowerment proposals,” The Herald 11 May 2011 p B1. Amongst those reported by Minister Kasukuwere to have submitted include Implats (Impala Platinum) and Angloplats (Anglo Platinum). 53 In terms of s 16 (1) (c) Constitution of Zimbabwe 54 1986 (3) SA 107 (ZSC) 119 55See also: Former Highlands Residents, in re Ash v Department of Land Affairs [2002] 2 All SA 26 (LCC); and A Einsenberg “Different Formulations of Compensation Clauses” (1993) 9 SAJHR 412


34

less,56 reality in bourgeois courts shows the contrary. Experience from South Africa, for

instance, shows that the bourgeois courts will make the market value “pivotal to the

determination of compensation” because they claim that this is the only truly objectively

quantifiable indicator:57 In one major case it was held:

“... the equitable balance required by the Constitution for the determination of just and

equitable compensation will in most cases best be achieved by first determining the market

value of the property and thereafter by subtracting from or adding to the amount of the

market value, as other relevant circumstances may require.”58

The above legal framework is an open invitation to the powerful propertied non-

indigenous local and international capitalists to try and neutralise the whole indigenisation

programme through drawn out and unending litigation, especially centred around a

demand for compensation at or around the prevailing market value, as they successfully

did with the land question for two decades. This alone, will sink the programme as a viable

national indigenisation strategy, thus vindicating Trotsky’s argument of the national

bourgeoisie as cowardly and incapable of fully taking on imperialism. Like the willing seller

willing buyer model, the above compensation and valuation model will make shares

prohibitively expensive and therefore unrealisable even for broad layers of the national

bourgeoisie save for a tiny cliché of politically well-connected elites, as we are seeing today

with the “Black Economic Empowerment” programme in South Africa.

Surely the lessons that the nationalist elites in Zanu-Pf must have learnt from their two

decades’ cat and mouse fight with the white farmers and courts is that it is not enough to

provide for a public financing mechanism like the Indigenisation and Empowerment Fund,

and leave the valuation and compensation model based on free-market principles or

ultimate dispute resolution in the hands of the civil courts. Whatever funds are

accumulated through the former are sure to be wiped out in no time yet without achieving

the objective of not only a broad-based indigenisation programme but also fundamental

restructuring of property relations amongst the bourgeois class itself.

If the Zimbabwean nationalist elites are really serious about an indigenisation programme

that empowers the black national bourgeoisie as against international and local white

capitalists and gives them a chance to achieve the historic breakthrough achieved by their

counter-parts in Asia, then the way to go is that of section 16A of the constitution. In other

56 Former Highlands Residents, in re Ash v Department of Land Affairs [2002] 2 All SA 26 (LCC); A Einsenberg “Different Formulations of Compensation Clauses” (1993) 9 SAJHR 412 57 Currie and Johan de Waal, op cite, 556 58 Former Highlands Residents, in re Ash v Department of Land Affairs [200] 2 All SA 26 (LCC)


35

words, during the current constitutional reform exercise, extend the property

compensation and valuation model used for the historic land reform programme to all

forms of property. Such model calls for a historically and socially determined system of

compensation and valuation at three levels:

Firstly, to specify in the manner of section 16A (1) that the Zimbabwean state or

indigenous Zimbabweans shall not be liable for a specified bulk portion of the amount to be

paid for the disposed share-holding, say two thirds. Compensation for this shall be the

responsibility of the former colonial power(s) through an appropriate restitution fund

established by such power(s), and that if the former colonial power(s) fail to pay such

compensation, the Zimbabwe state and indigenous Zimbabweans shall have no obligation

to pay for such share-holding.

Secondly that in relation to the minority portion to be paid by indigenous Zimbabweans,

say one third, the state, through an appropriate broad-based mechanism, shall prescribe

maximum rates to be paid, with the valuation of the amount to be paid taking into account

specified “ultimate and overriding considerations,” modeled on those already incorporated

under section 16A (1) and (2) of the constitution and international laws, including:

(a) that ‘under colonial domination the people of Zimbabwe were unjustifiably disposed of

their land and other resources without compensation;’59

(b) the people consequently took up arms in order to regain their land, resources and political

and economic sovereignty and this ultimately resulted in the Independence of Zimbabwe in

1980;

(c) the people of Zimbabwe must be enabled to reassert their rights and regain ownership of

their land, resources and all property;

(d) the obligation of the state under international law to facilitate the people’s rights to

economic development; to freely dispose of their wealth and natural resources, to

adequate means of existence and the duty on the state to progressively achieve the

peoples’ socio-economic rights to the maximum of the nation’s available resources;

(e) the history of the ownership, use and occupation of the property;

(f) the price paid for the property when it was last acquired;

(g) the cost or value of improvements on the property;

(h) the current use to which the property and any improvements on it are being used;

(i) any investment which the State or public may have made which improved or enhanced the

value of the property and any improvements on it;

(j) the resources available to the state and indigenous Zimbabweans in implementing the

programme of indigenisation and economic empowerment;

59 See generally M Gwisai, “Constitutional Reform in Zimbabwe: History and Way Forward” 2 KMLLJ 26 (2009)


36

(k) any financial constraints that necessitate the payment of share-holding in installments,

dividends or loans from the indigenised business, over a period of time;

(l) ‘and any other relevant factor that may be specified in an Act of Parliament.’

Thirdly and finally that a right to appeal to the courts on issues concerning compensation is

excluded and the courts’ jurisdiction generally ousted in exactly the same manner as under

the current provisions applicable to land for resettlement.60

The above propositions are not out of this world and would ideally be placed in any new

people-driven constitution but can still be inserted either principal Act or Regulations on

indigenisation. As already discussed the current compensation and valuation model used

by the courts seeks to strike a balance between the persons affected and the public interest.

For any bench other than one deeply intoxicated with racist positivist ethos, the factors to

consider in assessing fairness of compensation must surely include the social and historical

context of the property and law in general, if justice and fairness is to be achieved. I

couldn’t put it better than Gubbay ACJ (as he then was) did in Zimnat Insurance Co. Ltd v

Chawanda: 61

“Today the expectations amongst people all over the world, and particularly in developing

countries, are rising ...The Judiciary can and must operate the law so as to fulfill the necessary

role of effecting such development...The opportunity to play a meaningful and constructive role

in developing and moulding the law to make it accord with the interests of the country may

present itself where a judge is concerned with the application of the common law, even though

there is a spate of judicial precedents which obstructs the taking of such a course...If judges

hold to their precedents too closely, they may well sacrifice the fundamental principles of

justice and fairness for which they stand...’When these ghosts of the past stand in the path of

justice clanking their medieval chains the proper course is for the judge to pass them

undeterred.”

In any case as again discussed earlier, there is no unanimous consensus amongst jurists

that the right to property is a fundamental human right that should hold the sacrosanct

position that positivism seeks to give it, with some constitutions and core international

human rights instruments not even providing for it or providing for the nationalisation of

key sectors of the national economy.62 Thus the historical realities of racial discrimination

60 Provisos to section 16(1) (f) of the Constitution of Zimbabwe 61 1990 (2) ZLR 143 (S) 62 Supra Note 13 giving examples of the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social and Cultural Rights. Currie and Johan de Waal (2005) at 533 point out that the Canadian Charter of Rights and Freedoms of 1982 and the New Zealand Bill of Rights Act of 1990 do not provide for a property clause. On the other hand,


37

and dispossession of colonialism, the need to advance the interests of those groups that

were historically disadvantaged and the right national economic sovereignty and

development are concrete factors that a court or policy maker must take into account in

deciding what is “reasonably necessary in the interest ... of the utilisation of that or any

other property for a purpose beneficial to the public generally or to any section of the

public,” 63or what constitutes “fair compensation.”64 More so when the constitution now

explicitly recognises affirmative action for the advancement “of persons or classes of

persons who have been previously disadvantaged by unfair discrimination,” as a

permissible and legitimate public policy tool and measure.65 Indeed major capitalist

corporates are doing exactly that when they give share-holding to their employees in

broad-based employee share-ownership schemes, either fully gratuitously or partially free

or for it to be paid by loans guaranteed by the company or from future dividends.66

Such subordination of all forms of property to historical and equitable considerations is

directly done in the Constitution of South Africa, considered to be one of the most

bourgeois democratic constitutions in the world. Section 25 reads:

(3) The amount, timing, and manner of payment of compensation must be just and equitable,

reflecting an equitable balance between the public interest and the interests of those

affected, having regard to all relevant factors, including –

(a) The current use of the property;

(b) The history of the acquisition and use of the property;

(c) The market value of the property;

(d) The extent of direct state investment and subsidy in the acquisition and beneficial capital

improvement of the property; and

(e) The purpose of the expropriation.

(4) For the purposes of this section –

(a) The public interest includes the nation’s commitment to land reform, and to reforms to

bring about equitable access to all South Africa’s natural resources; and

(b) Property is not limited to land.”

The failure by the Zimbabwean nationalist elites to so suitably amend the national

constitution or so structure the valuation and compensation model in the Act and

exclusive state ownership is provided for in prohibited in fundamental areas of the national economy like the petroleum industry and natural gas industry under the constitutions of Venezuela (Arts 302 – 303) and Bolivia (Art 313). 63 Section 16(1)(a)(ii) Constitution of Zimbabwe 64 Section 16(1) (c) ibid 65 Section 23(3)(g) 66 See the Kutula Scheme run by Anglo-American and claimed to be the biggest broad-based empowerment scheme in South Africa in which the workers got 50 per centum of their share-holding gratuitously.


38

Regulations is a severe indictment on its seriousness to really take on big and international

capital and truly indigenise the economy.

How much Indigenisation?

The issues of how far the indigenisation of the economy goes and who amongst the

indigenous Zimbabweans will benefit and to what extent are crucial points, in relation to

the class character of the laws and their efficacy as tools to counter the general crisis of

capitalism.

The degree of ownership by indigenous persons is stipulated under section 3 of the Act as

read with the Regulations, namely “at least fifty-one per centum of the shares of every

public company and any other business.” This is to be attained within at least five years

from the date of commencement of the Regulations, that is 1st March 2010 or

commencement of any business thereafter.67

These provisions also apply to mergers or restructuring of companies that require to be

notified to the Competition Commission under the Competition Act [Chapter 14:28] or in

instances of unbundling or demergers of business or relinquishment of a controlling

interest in a business or proposed new investments where the net asset value of business

in question is at or above the prescribed thresholds, which is currently set at US500 000.68

In the latter instances indigenous shareholding must be accompanied by equitable

representation of the indigenous Zimbabweans in the governing body of the resultant

business or a controlling interest in relation relinquishment and new investments.69 The

term “controlling interest” is all-encompassing, meaning in relation to -:

(a) A company, means the majority of the voting rights attaching to all classes of shares in

the company;

(b) Any business other than a company, means any interest which enables the holder

thereof to exercise, directly or indirectly, any control whatsoever over the activities or

asserts of the business.70

The Minister is authorised to prescribe a lesser share than fifty-one per centum or a lesser

interest than a controlling interest provided in so doing he or she shall prescribe the

67 Section 3(1)(a) of the Act as read with s 3 S.I. 21 of 2010 68 Section 4 (1) S.I. 21 of 2010 69 Section 3(1)(b) (c) (d) and (e) 70 ibid


39

general maximum timeframe within which the fifty-one per centum shares or controlling

interest shall be attained.71 Further a portion, up to the prescribed figure, of the minimum

51 per centum indigenous quota, may be in the form of credits given for fulfilling specified

“socially and economically desirable objectives.” 72

In a manner following South African statutes this is defined broadly to include: undertaking

specified development work; beneficiation of raw materials, technology transfer, is

permissible where the business, employment of local skills and “any other socially and

economically desirable objective.”73

The other component of indigenisation are mandatory procurement requirements

whereby all government departments, statutory bodies, local authorities and all companies

shall procure at least 51 per centum of their goods and services from businesses in which a

controlling interest is held by indigenous Zimbabweans where the procurement of such

goods and services is regulated by the Procurement Act [Chapter 22:15]. Where the

procurement is done from businesses in which the controlling interest is not held by

indigenous Zimbabweans, any subcontracting required to be done by the supplier shall be

done to the prescribed extent in favour of businesses in which indigenous Zimbabweans

have a controlling interest.74

The above framework has however, now been radically modified by General Notice 114 of

2011 which has in fact introduced a fast track indigenisation programme for the mining

sector, the most important economic sector after land, contributing up to 46% of GDP. The

Notice provides that every non-indigenous mining business whose net asset value is of or

above US$1 shall achieve the minimum quotas by disposal of its shares to a designated

entity no later than six months from the date of publication of the notice which may be

extended on good cause shown for a further period of up to three months.75

This is a major step forward that radically changes the game play from the previous

position. Unlike the position under the principal regulations, as amended, where the

programme is applicable to businesses with a net asset value of or above US$500 000, the

71 Section 3(5) 72 Section 5(4) (c) of S.1. 21 of 2010 73 s 9 (1) 9c) (d) of the Broad-Based Black Empowerment Act 53 of 2003. In the South African context, the “residual 10%” in which businesses can develop their own indigenisation measures include measures like labour-intensive production; beneficiation, investment in rural areas and investment in social wage of employees such as housing, transport and healthcare. Note also that ownership is given a weighting of only 20%, see Footnote 60, supra. 74 Section 3(1) 75 S 3 (1) of General Notice 114 of 2011


40

Notice applies to virtually all foreign mining businesses.76 Further whereas the principal

regulations provide a maximum time framework of “within the next five years from the

date of operation of these regulations, or within five years from the commencement of the

business concerned” in which non-indigenous businesses must indigenise, the Notice

drastically reduces this to six months from the date of publication of the notice extendable

by a further three months on good cause shown.77

It becomes clear therefore that the Notice compels an immediate fast track indigenisation

programme. It entails a smash and grabs exercise modeled on the Fast Track Land Reform

Programme. This urgency has most likely been precipitated by political factors, namely the

fears by Zanu PF elites that unless they act fast they could lose out given a political

environment in which they face real possibilities of political demise at the imminent

general elections which may be called for within the next twelve months. The Notice is an

attempt to make indigenisation of the most important sector of the economy, mining,

irreversible but in a partisan manner just like the land reform programme. These

provisions are much more radical than the South African equivalent, where a “black

empowered enterprise” is defined as at least 25, 1% owned by blacks.78 Because of the

above, the programme is likely to empower elites aligned with Zanu PF at the exclusion of

all other elites. In fact, the Minister is brash about this. At a public seminar he declared that

it doesn’t matter that leaders from Zanu PF may benefit the most, for after all “a revolution

benefits those who start it.”79

For that reason, the Notice is likely to raise huge outcry and opposition from big business,

western countries and other elites in opposition. There are several fronts of attack from a

legal perspective. Firstly, that the Notice is not intra vires the principal Regulations, namely

section 3 (a) which provides that the general objective of the Regulations is to achieve

indigenisation within a period of five years, whereas the Notice imposes a six to nine

months’ time framework, which may be deemed unrealistic and arbitrary. Secondly the

General Notice may also be held to be ultra vires s 4(1) of the principal regulations which

specifies that only businesses of a net asset value of or above US$500 000 are required to

notify the Minister of their extent of compliance with the regulations and to provide a

provisional indigenisation implementation plan. Furthermore, section 5 (4) of the principal

76 See respectively, s 4(1) of SI 21 of 2010 and s 2(b) of General Notice 114 of 2011 77 See s 3(a) of 21 of 2010 and s 3 (1) of General Notice 114 of 2011 78 Appendix B, Strategy for Broad-Based Black Economic Empowerment, Department of Trade and Industry, March 2003. In terms of appropriate weighting on the Generic Empowerment Scorecard, ownership is granted a weight of only 20 points out of a 100 – See Para 8, Broad-Based Black Economic Empowerment Code of Good Practice, Code Series 000 – General principles and the Generic Scorecard issued in terms of s 9(1) of the Broad-Based Black Economic Empowerment Act, 2003. 79 Minister Kasukuwere at the 2010 Kempton Makamure Labour Lecture, University of Zimbabwe


41

regulations requires that the Minister publishes a notice providing for minimum net asset

value thresholds, lesser shares and maximum periods only on the basis of information

gathered in terms of section 5A, that is written recommendations made by the sectional

and subsector committees established for the appropriate sector. Unless the Minister can

show that the Notice is made in terms of such recommendations it may easily be held to be

arbitrary and ultra vires the principal regulations. Given the diverse composition of the

committees established under section 5A it is unlikely that such recommendations have

been made.

The better route would of course be to amend the principal Regulations to explicitly

provide for such fast track indigenisation programme as envisaged by General Notice 114

of 2011. Such amendments would be well within the parameters of the enabling Act, which

does not prescribe any minimum asset value threshold nor time framework within which

to achieve the stated objective of indigenisation.80 In fact the Act specifically states its

objective as seeking to secure 51% indigenisation “of every public company and any other

business.”81 There is no reference to a minimum asset value minimum threshold. The term

“business” is also similarly broadly defined to cover all types of businesses whether

incorporated in terms of the Companies Act [Chapter 24:03] or not and also includes all

private companies, associations, syndicates or partnerships of persons whose object is the

acquisition of gain or profit.82

Thus the $500 000 minimum asset value and five-year time frame-work are self-imposed

compromises in the principal regulations, which the Zanu PF elites had done in order to

accommodate some of the concerns of the MDC and business. But now faced with the real

possibility of defeat at imminent polls said to be scheduled within the next twelve months,

the Zanu PF chefs are now in a real hurry to execute their nationalist / looting agenda

before such polls and are thus throwing overboard the consensual arrangements they had

reached with the opposition and big capital as particularly reflected in SI 116 of 2010.

In summary the Regulations as now amended reflect a real desire by the state and ruling

party elites to have a significant share of the national productive base and appear more

radical than their South African equivalent. However, they are by no means revolutionary.

Why 51% and not a much higher percentage, say two thirds or even 100% indigenisation

in key and strategic areas of the economy as has been the case in Venezuela and Bolivia. It

is clear therefore clear what the Zanu PF elites seek is a partisan indigenisation programme

80 The relevant section is s 3, in which there is no stipulation of a time period in all the subsections. 81 S 3(1) (a) of the Act 82 See s 2


42

in which they are accommodated as the junior partners of international capital in the

country.

“A Revolution benefits those who start it...” Which indigenes are to benefit?

The question of who benefits and by how much amongst the indigenous people is a

fundamental one. A truly broad based people-driven indigenisation programme would vest

most ownership in public and collective entities to ensure the broadest possible enjoyment

of the benefits. Such ownership would include ownership by the state, local authorities,

communities and collective bodies like co-operatives, employee share ownership schemes

and community ownership schemes. In other words, public and collective ownership and

control, accompanied with mandatory quotas for the most historically marginalised groups

like women and the disabled, would take first priority and rank above individual private

ownership.

A narrow elitist programme on the other hand leaves ownership in private individual

hands without regard to gender or disability considerations or places private ownership on

the same footing with public ownership. What changes here is the colour, race or religion of

the elites without really changing the unequal and unjust elitist structure that existed in the

first place. This is what seems to be occurring with the South African BEE programme and

not surprisingly such programme has led to increasing discontent from the rest of society,

cynically now being referred to as “Black Elites Empowerment.”

The Zimbabwean indigenisation framework provides empowerment for both collective and

private entities but with two critical weaknesses, namely, exclusion of the state and other

public bodies from the framework and secondly placing the public and collective entities on

the same footing as the private individual ones.

The starting point is the definition of “indigenous Zimbabweans,” namely:

“any person who, before the 18th April, 1980, was disadvantaged by unfair discrimination on

the grounds of his or her race, and any descendant of such person, and includes any company,

association, syndicate or partnership of which indigenous Zimbabweans form the majority of

the members or hold the controlling interest.”

The definition obviously includes private individuals and their business vehicles in the

form of the traditional companies and partnerships. It also may encompass other collective

entities such as associations of ordinary people. The Act and Regulations themselves refers


43

explicitly to collective entities like employee share ownership schemes, trusts, community

share ownership schemes or trusts; and possibly groups of women, young persons and

disabled persons. It is interesting that the left-inspired “co-operatives” have not directly

mentioned!

The National Indigenisation and Economic Empowerment Charter states that one of its

principles is to ensure “equal opportunity for all, including gender sensitive ownership and

participation in the economy by indigenous Zimbabweans.” Another specified objective is

to “promote equitable access to the wealth of the economy by indigenous Zimbabweans.”

The above provisions clearly show an intention to promote broad-based indigenisation but

there are serious problems. Firstly, there no binding provisions on the Minister in the Act

or Regulations to consider the Charter and its principles and objectives when deciding

whether to approve or reject indigenisation implementation plans. Neither are there

mandatory quotas for such marginalised groups. Previously the principal regulations

provided one example of this, namely that a qualifying employee share ownership scheme

or trust should ensure that “not less than fifty per centum of the employees benefiting in a

qualifying scheme or trust must be either women or disabled persons or a combination of

both women and disabled persons.” 83But this provision has now been repealed, when all it

needed was an amendment proviso to deal with situations where there might be

insufficient numbers of women or disabled persons at a given workplace.84 This should

have been included directly in section 3 of the Act and sections 3,4 and 5 of the Regulations

Compliance is only necessary where a party seeks assistance from the National

Indigenisation and Economic Empowerment Fund.85

The statutes rank equally on the same footing public and individual indigenisation, yet to

truly redress historical injustices and imbalances giving public ownership first priority and

imposing mandatory quotas for the most historically marginalised social groups, namely

women and the disabled, is essential. All they require is that 51% of ownership of

businesses should by “indigenous Zimbabweans.” A non-mandatory provision is made in s

3 (3) of the Regulations that the indigenisation objectives may be implemented by the

Government specifically on behalf of women, young persons and disabled persons.

Similarly, there is a discretionary non-binding provision for employee share ownership

schemes, and even then care is taken to place a maximum cap of 28% shareholding that

83 S 14 of SI 21 of 2010 (original) 84 Repealed by s 7 of S.I. 116 of 2010 85 S 16 of the Act.


44

may be granted to such schemes with the Fund having a right of first refusal to purchase

any excess above this.86

It is also important to note that the original Regulations did not even provide for

community shareholding or indigenisation which would have left out most rural

communities near mines, tourism areas and other businesses from the indigenisation

agenda. These were only incorporated under S.I. 116 of 2010.87 In terms of this community

share ownership schemes may be done by residents of a Rural District Council whose

natural resources are being exploited by a qualifying business, the residents of wards of a

Rural District Council specified in a community share ownership scheme whose natural

resources are being exploited by a qualifying business or any “other distinct community of

persons as defined in a community share ownership scheme, who are affected by the

exploitation of the natural resources in or adjacent to their place of residence.” 88

The use of the profits by the community share ownership scheme are ring fenced with the

Minister required to have regard to certain factors before approving a community share

ownership scheme as qualifying. The factors include use of the profits for purposes of

operating schools, hospitals, clinics, dipping tanks, roads, water works and water sanitation

works, gully reclamation and soil and environmental conservation.89 Thus the benefits of

indigenisation in such cases will be broad-based and equitable benefiting the whole

community and not just a few elites. It is odd that for a party whose basis is in the

peasantry, Zanu PF had originally in fact left out rural communities from the indigenisation

agenda, instead providing for the urban based working class. Paraphrasing Minister

Kasukuwere, the Zanu PF chefs who are starting the indigenisation revolution wanted to

eat the whole cake alone excluding their ordinary supporters. But perhaps out of a belated

realisation that indigenisation could become a major electoral rallying point in the rural

and mining areas just like what the land reform exercise was done were the regulations

then subsequently amended. With such direct potential benefits, the peasantry may then

again be mobilised as foot soldiers for the indigenisation programme just like they were for

the Fast Track Land Reform Programme.

It is unlikely that the opposition-supporting urban working lass would have played such a

role. Many sections of the working class are distrustful if not openly hostile to the ruling

party’s economic nationalisation agenda, seeing it as a recipe for general economic decline

86 S 14 (4) of S.I. 21 of 2010 as amended 87See the new s 14B (2) of S.I. 21 of 2010 as amended by s 7 of S.I. 116 of 2010 88 S14 (B) (1) of S.I. 21 of 2010 as amended. 89 S14B (4) of S.I. 21 of 2010


45

– crisis that will lead to loss of jobs the way farm workers lost their jobs in the land reform

programme. Coming out of the economic catastrophe of 2007-2008 and with an

unemployment rate of over 75%, many workers and most union leaders would rather

remain starvation wage slaves than not be slaves at all! Hence the ZCTU May Day

Celebrations were held under the theme: “Respect our Rights, Save the Economy, Save our

Jobs.” The working class is therefore unlikely to support the indigenisation agenda but side

with the bosses.

Yet despite the obvious political advantage to the ruling party elites there are still no

general mandatory requirements that every indigenisation implementation plan must have

a specified quota providing for both employee ownership schemes and community

ownership schemes. From a tactical perspective, such omission by the Zanu PF leadership

is baffling, unless one takes Minister Kasukuwere’s self-interested but short-sighted “we

eat first because we started the revolution” approach. Without the ordinary war veterans

and poor peasants, who were its enthusiastic foot soldiers because of the direct gains they

stood to make from it, the Fast Track Land Reform Programme would never have

succeeded. This is the crucial lesson that the nationalist elites are failing to take from the

Fast Track Land Reform Programme either from avarice, greed or ignorance. To make

indigenisation a reality given the array of opposition it faces, a broad layer of foot soldiers

will be essential ... those who have not been cultured to fear to “take what is not their own.”

To do that requires urgent amendment of the Regulations (and not even the Act) to impose

the mandatory quotas for workers, rural communities, women and the disabled. In other

words, there is no requirement that the indigenisation programme be a broad-based one,

as is the case with the South African equivalent or better still that it resulting public

ownership of the most strategic sectors of the economy as is the case with in Bolivia and

Venezuela.

The above provisions are clearly meant to benefit the black business and political elites

aligned to the ruling party. This is particularly so when one takes into account the

sweeping and unfettered powers given the Minister under the Act and Regulations,

effectively creating a “super Minister.” The Minister is given authority to approve or reject

indigenisation implementation plans as well as power to establish a data base of persons

wishing to identify any indigenous Zimbabweans to acquire a controlling interest in their

business and indigenous Zimbabweans wishing to partner such persons.90 There is no laid

down criterion on how the Minister will establish and run such data base. It is also

questionable why this should be done by one individual as opposed to a more broad-based

90 S 15 of SI 21 of 2010


46

and diverse entity. The current provisions are a recipe for a corrupt patronage system in

which indigenous businesses favoured by the Minister personally and his or her political

party will get the lion share of indigenisation deals. And these are not likely to be entities or

representing ordinary people... to do that would require a mandatory provision in the

Regulations and Act, which has been deliberately left out – a serious tactical blunder which

may in fact condemn the indigenisation agenda to still birth as was the case with the efforts

prior to the Fast Track Land Reform Programme.

The second area of concern is that the definition leaves out the state, local authorities and

statutory corporations including parastatals in what constitutes “indigenous Zimbabwean.”

It will probably be argued that since Independence in 1980 the state is now representative

of the majority of the population which is black, and therefore it and other statutory bodies

can qualify. But this is a tenuous argument that stretches the definition of “indigenous

Zimbabwean” to its outmost limits. The definition should simply have included the state,

local authorities and statutory bodies. The omission more likely signals the underlying

ideological and jurisprudential premises of the framers and drivers of the indigenisation

laws. What they seek is not broad-based economic development for the country which

would obviously entail a dominant role for the state and aligned institutions but class

biased development in favour of the black national bourgeoisie. It also reflects a neo-liberal

right wing development framework based on the market and hostile to the state. This

reflects a right-wing neoliberal aspect of the Act and Regulations. It is opposed to public

state regulation of the economy privileging the market at the expense of the public

common sector. The framers are hostile to what may be seen as nationalisation. Yet in

some circumstances state or local authority ownership under democratic control may the

only feasible and viable vehicle for national development. The state companies of China are

an example for this, yet the Zimbabwean laws do not provide for this, not surprising when

one looks at the character and nature of the main drivers of the indigenisation programme

starting with the Minister.

Possibly aware of the conundrum created, a back-sided attempt has been made in General

Notice 114 of 2011 to sneak in the state. The Notice requires that the non-indigenous

businesses in the mining sector dispose share-holding to “designated entities no later than

six months from the date of publication of the notice.” The designated entities are in fact

the public collective bodies that the principal Regulations and Act have excluded. Hence

they include the Zimbabwe Mining Development Corporation or any company or entity

incorporated by it or the Fund for the purpose of this Notice. And crucially also a statutory

sovereign wealth fund or employee share ownership schemes or trusts, or management


47

share ownership schemes or trusts or community share ownership schemes. The other

entity is the Fund.

The above is a welcome if belated recognition that to drive an economic nationalist

programme of the order envisaged by the Act requires to use the might of the state and the

power of the working people. The individual national capitalists lack neither the means nor

political will and capacity to do that alone as had in fact been originally envisaged under

the Act and Regulations. The reality of the Notice is that the warehousing of shares by

either the Fund or ZMDC will in fact be for the benefit of the black nationalist elites who

control such institutions. To truly democratise, requires that besides effective mandatory

quotas for the marginalised groups amongst indigenous Zimbabweans, such institutions as

specified in the Notice be democratised in their composition and that the proceeds they

receive as profits be statutorily ring-fenced for agreed social common goods, in a manner

similar to what has been done for the community share ownership schemes under section

14B (4) of the Regulations.

Enforcement Mechanisms

The final area of concern relates to the mechanisms for the enforcement of indigenisation.

Currently several mechanisms are put in place. Firstly, are economic measures and

sanctions under s 3 (1) of the Act, whereby any mergers, unbundling, projected

investments will not be given requisite licenses or approvals unless the arrangements are

in compliance with the Act. Further where a business remains non-compliant, the Minister

may issue a written order to a licensing or registering authority of a non-compliant

business to terminate or decline to renew the licence, registration or other authority in

question to operate of the business in question.91

Secondly are the powers given to the Minister to review and approve indigenisation and

empowerment arrangements and plans and the requirement that no mergers, unbundling,

relinquishment of controlling interests in a business or proposed new investment in

specified areas may be done without such approved indigenisation plan.92

Finally, are severe criminal sanctions for non-compliance, including for giving false

information or acting as a front or nominee of a beneficial non-Zimbabwean owner,93 or

failure to pay, collect or remit the indigenisation levy.94

91 S 5 of the Act 92 S 4 (1) of the Act 93 S 17 of S.I. 21 of 2010 providing for a fine not exceeding level twelve or imprisonment for a period not exceeding five years or both.


48

The above are powerful enforcement mechanisms, showing the seriousness with which the

nationalist elites are taking the indigenisation programme. But there are weaknesses in

particular the vesting of too much discretionary power in one office and individual, the

Minister. For such a far-reaching national programme it requires much more broad based

diverse platforms for enforcement and dispute resolution including possibly an ultimate

appeal right to parliament. The economic sanctions could also be strengthened by

including provision for automatic indigenisation without compensation to specified public

entities like the state and employee and community share ownership schemes, where there

is failure to comply within the specified period. This together with the other enforcement

mechanisms would certainly galvanize the indigenisation programme.

Conclusion

The Zimbabwe indigenisation programme contains some positive and radical elements but

an analysis of its framework shows that it is fundamentally aimed for the benefit of the

black bourgeoisie, especially those aligned to the ruling party and state. Without

mandatory and significant quotas for the state as well as entities representing workers, the

rural poor, women and the disabled, the programme will remain a narrow and elite project

which will not change the fundamental elite class character of the economic relations of

production in the country. It at the same time exhibits serious structural weaknesses from

a constitutional perspective which makes it open to attack and subversion by big business

and a conservative judiciary. The failure to structure the Act appropriately, in particular

failure to provide for expropriation without compensation or the provision of a non-market

based valuation model, exposes the cowardly and hesitant nature of the national

bourgeoisie and its unwillingness to confront imperial capital. If it is serious about such

programme then a non-negotiable position for the radical bourgeoisie in the current

constitution-making process must be to provide for these in the new constitution,

subordinating the property clause to the demands of national economic sovereignty and

the right to broad-based development as was in fact done with section 16A of the

constitution in the Fast Track Land Reform exercise. Despite the above weaknesses, the

indigenisation programme exposes serious conflicts within the bourgeois ruling classes

which the working classes must take advantage of rather remain on the sidelines. Workers

and the rural poor, women and other marginalised communities must demand the

mandatory inclusion of mandatory and significant quotas in all indigenisation

arrangements with the state and local authorities having a significant share-holding, under

democratic control, in the most strategic resources and businesses.

94 See for instance s 18 (1) of the Act providing a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.


49

However, this can only be a step towards the bigger objective of overthrowing the entire

private property basis of the economy locally and internationally and substituting this with

globalised and socialised relations of production that is socialism, the only real solution to

the current systematic and general crisis of capitalism.


50

CIVIC SOCIETY PERSPECTIVES ON INDIGENISATION, ECONOMIC EMPOWERMENT AND WORKERS RIGHTS. DR. LOVEMORE MADHUKU95

Introduction

First I have to honour the Deputy Prime Minister96 and Minister of Indigenisation97,

Chairperson of the Indigenisation Board98 and the Acting Vice Chancellor99. I thank the

Kempton Makamure Labour Lecture Series Board for organising this event. What I will do is to

try and address the topic that we would address with Gwisai. But given the time I will not be

very academic about this presentation. I will just give overview points regarding the topic, and

obviously comment also on the points that have been raised by the Minister and the Deputy

Prime Minister.

Democracy and Dictatorship

You can form your party that pursues your particular opinions, that is acceptable and that is

what society is all about. So if, for example, ZANU PF100 believes in a given policy, meet

around that point and become one group, and pursue the policy; that is fine. But at the end

of the day there must be space in society for those who decide who is governing them to

decide who should govern. Now that is a very important point I wish to make here, even as

we debate this point.

The right to govern must be based first on the proliferation of ideas, they must be spread

around, and there must be freedom to debate those ideas. The people in that country must

be free to choose which ideas at any one time they believe to be the good ideas that must

dominate them, and in a free and fair contestation, every two years, every three years, every

four years, and every five years. In our case we say every five years we have elections and

those that are elected must govern. Now I do not know how long these governments are in

office now as we are getting elections every year. They will tell you that elections anytime

and so forth but I am emphasising this point because these are important issues. Issues

about indigenisation, empowerment, land reform, and so forth. What would be wrong is for

any dominant idea to seek to be the only idea that must survive, and for that idea to seek to

remain the idea of the day by adopting methods that are not acceptable.

95 Chairperson of the National Constitutional Assembly(NCA) and Chair, Department of Public Law, Faculty of Law, University of Zimbabwe 96 Hon Prof Arthur G.O. Mutambara 97 Hon Saviour Kasukuwere 98 David Chapfika 99 Prof Chipo Dyanda, University of Zimbabwe 100 Zimbabwe African National Union – Patriotic Front


51

I am speaking at this lecture as an academic, not as the NCA Chairperson. That is why my

Vice-Chancellor is around. This is very important that the idea be debated. Politics is about

ideas, and which ideas run the world. Those ideas must be available for all of us. If we have a

particular idea, we must be free to spread it. If we have support for that idea, that support

must be nurtured, it must be promoted. So my only problem with the current government,

not the inclusive one, the previous one was that certain ideas were thought to be inherently

right, inherently just and then any opposition to those ideas must be fought against.

Arthur Mutambara, at one time was imprisoned when he was our SRC president, I think this

is how I should put it here. And his idea then which was shared by the students was that

there should not be a one party state in this country. Of course Gwisai and Arthur, they want

to think that they were fighting against corruption, it was merely the one party state idea,

and they want to make it more respectable. The fight here every time was against the one

party state, every time that we fought against it. There was a song that was sung here; hanzi

tamirira one party state yanga yanonoka kuuya101. And the students said no, we could not

handle that. That’s what happened. Of course there was corruption and other things, but

then ultimately we succeeded because this country never became a one party state, at least

at law, and now we can have an inclusive government and we can have that.

So as I go into this topic I would really plead with all students in particular that what

Minister Kasukuwere was saying is important. We must tolerate different ideas, and that

those ideas will always be there which are different but the most important message to send

to government is to say provide a platform for different opinions.

This takes me to my first difference with the Honorable Deputy Prime Minister, my

colleague. He says that seek ye the kingdom of democracy and everything else will follow. If

we had more time I would obviously want to say that I have serious differences with the

way that they have put it. If we have an authoritarian dictatorship that provides for

everything that we want, a dictatorship that will provide us good health-care, good

education; that will ensure that if I have a child, my child will be given child benefits; that I

do not have to pay for my child’s fees because the dictatorship will provide, or that I do not

have to think what I will have to do the next day, the dictatorship will provide. I will not

want to live in that society myself. I will not want to live in a society of a dictatorship that

provides for everything, and that is a point of departure.

Now what if it decides that today they are good, good, good, and tomorrow they are bad,

bad, bad, and so on. Because if it is a dictatorship it can decide to be good and we say it’s ok,

the dictatorship the next day is bad and we say it’s bad. It is not about that. So I know that if 101 We are waiting for the long overdue one-party state


52

I listened to Arthur properly, he was not necessarily disagreeing with that. He wants that bit

put in a proper context.

And what we need to do in this kind of forum is to debate it more clearly so we provide a

framework for when do things start and when do they end. Democracy is an essential

ingredient of any developmental framework and I would therefore say to you ‘’Seek ye

democracy first’’. I think you seek ye democracy first with a view to the economic

empowerment that he has in mind. As for what the lawyer was saying, I will just make my

point even if I was not here when Tawanda was speaking. But I know what he normally says,

and I think I agree with him! There are certain things that we should say, empowerment for

example.

Indigenisation Legislation: A Mirage

I now come to the legislation, I do not agree with some, and a lot of some aspects, even if the

Minister said that he will not change his views. This is the point that I wish to make. I think

he has a right not to change his views but provided they provide a democratic platform that

if we disagree with Kasukuwere we should have the right to remove him from government.

This is not a populist statement: I want to underline the way I got to my point. They are

entitled not to change their views, to say the Indigenisation Act is ok we will not amend it, if

the courts make decisions against us we will reverse what the courts do. Fine, as long as

they are in office for a period that is limited because we can get a government that comes in

and say we reverse the Empowerment Act, we change it this way, we are now providing

empowerment this way. That is the society we want today.

That is my first point Gwisai kana wakuda kuresponda102, I am saying this because Gwisai

akadzingwa kuMDC103. The issue is that there will definitely be differences over these issues,

and these differences will be genuine differences. I disagree with this way of doing things,

and so on, and that is why I am now going into this. So what the Minister was doing is fine.

That is political, he defends those points but he must allow and the government must allow

different opinions to come and if there is no way of resolving then we compete politically.

We go to the electorate and say look we will do indigenisation this way and Kasukuwere’s

group will do it this way; free and fair elections- which one do you want between the two?

That is what a democracy is and that is what I will recommend, I think Arthur agrees with

that. So I will just say in passing, an Act of Parliament does not become an Indigenisation Act

just because it says it is an Indigenisation Act. An Act of Parliament is not an Empowerment

Act simply because it uses the word empowerment. That I think is a key academic point.

102 When you are ready to respond 103 Gwisai was expelled from the Movement for Democratic Change(MDC)


53

What we run risk of is to get pieces of legislation that will say, ‘’I am the Indigenisation and

Economic Empowerment Act’’, but when you read through them you find very little

empowerment, you find no indigenisation; you find something else that is being done. And

that is one of the problems that you face, if you read this legislation carefully you will come

to the conclusion, yes there is an attempt there to provide for indigenisation but most of the

effort is wasted in defining indigenous.

New Constitution

I think anybody can go ahead and produce a draft constitution. The Draft that exists at the

moment which the three parties have already agreed to is called the Kariba Draft. That Draft

provides nothing of the nature that you might want to be discussing today, for instance on

worker’s rights. The Kariba Draft is even more old-fashioned than Constitutions that were

drafted before 1990. If you read the Kariba Draft, you just look at when it was signed: 30

September 2007. Go and get a copy of the 1994 South African Constitution. I do not know

how many years are there between 1994 and 2007. Thirteen years before 2007; when these

people were sitting in Kariba or wherever they were sitting, they write a Constitution which

is inferior to a 1994 document. We go to Malawi and get a Constitution that was drafted

before that, you see the Malawian Constitution, you compare with the Kariba Draft, this was

done fifteen years before Kariba and I ask myself why Zimbabweans deserve this inferiority

status; because they are governed by three political parties. That is the answer. Now I think

that is a wrong approach.

This is why I will come here and when I do that Vice-chancellor I will not be involved in

politics, when the time comes for these people to put a Draft of that inferiority level, I will be

among those who might take leave from the University to campaign against it. We cannot

have a Constitution that has no workers’ rights; that does not even provide for the

empowerment that Minister Kasukuwere wants. If you read Kariba the only thing that is

evidenced is perhaps empowerment comes from a powerful President, perhaps that is what

Kariba has in mind. That is what you get in Kariba and I think I find that problematic, there

is not much scope. COPAC104 will not provide the scope for the kind of debate because

already before you start COPAC you exclude people from the debate, that I have already

indicated from the beginning is the basis of progress in society.

Conclusion

Multiplicities of opinions, the market place of ideas; so I wish my friend were the President,

Mutambara, ane maideas ari right hake panyaya iyoyo yandiri kutaura pano apa, but achiri

104 Constitutional Parliamentary Committee


54

kure nekuita President.105 The point I wish to make is quite clear. I just wish to say that the

important progress that we can make as a society, and here I am appealing to Minister

Kasukuwere, is that we must create an open society where there is debate and exchange of

ideas, and I know that you have been allowing that but your party would easily not allow

that. I know there is not much to say there. I think you must encourage; with your age you

are young. I think that the society that we want to build is openness.

And I will encourage you not to take the attitude that if the courts, for example, were to

think that certain sections were not constitutional you would not do it the way of this

generation. The generation that Arthur was talking about is a very hard, strong generation.

They do not believe in these checks and balances. I know that the President, given his

hardness will reverse everything that the courts will do if he is against the ideas. But in a

new government of our generation, we must give space for that, think about why the courts

have decided this way, find democratic ways of addressing it and then we move on.

That way we create a better juncture, and that is the generational leaf that I think we should

make. The leaf that we should take for the Mugabe generation is that there must be a more

open society, a more tolerant society, a society that respects checks and balances. And we

will deliver on that, I think because tiri tese panyaya iyoyo. We will start on the new

Constitution. We will want a democratic Constitution for our country which has worker’s

rights and which has empowerment provisions. But this one you are trying to give us in the

name of inclusivity or transition that must not be accepted. Better where we are until we get

a democratic Constitution.

105 He has great ideas but is still far from being President of Zimbabwe


55

INDIGENISATION, EMPOWERMENT AND THE WORKING CLASS: KEYNOTE ADDRESS HON. PROF. ARTHUR G.O. MUTAMBARA106

Introduction

I am here to show respect to Kempton Makamure107. Makamure was the educator. There will

be no Dr. Lovemore Madhuku without Makamure. We are the foundation of the struggle in

Zimbabwe. Talking about change, we are the fathers of brother Prime Minister Morgan

Tsvangirai; I am the father of my Prime Minister. So this is a very important lecture in

intellectual empowerment and Indigenisation of the mind.

Are you intellectually equipped? Are you intellectually empowered? That is what Makamure

was about, rational disputation, disagreeing without being disagreeable. I am very happy that

I have come to the platform after Minister Saviour Kasukuwere. I am so happy Munyaradzi

Gwisai,108 that the University of Zimbabwe is going back to where it belongs to, which is an

arena of discussion, accommodation of different views and different thinking.

Indigenisation and Empowerment and The Working Class

As students, you must have the capacity, the sophistication of mind to absorb what the

Minister has said to you and at the same time absorb what Mr Tawanda Nyambirai will give

to you and be able to function. I want to tell you that as I address my keynote topic which is

‘Indigenisation and Empowerment and The Working Class’. I want to encourage you to

absorb wisdom and the knowledge that has been dropped on you by the Minister and also

absorb the wisdom and the knowledge that will be laid down by Tawanda Nyambirai from

the private sector. Then you must make up your mind. When we were students here,

Kempton Makamure taught us to be super critical of the leaders of our own political parties

and not just those of other parties.

When we were fighting here as student leaders, we believed in both academic excellence

and social responsibility. One must be an activist who gets locked up and yet gets a first

class in school. This is what must inspire you. You don’t impress me if you are an activist

and then getting to write supplementary examinations. No no no. And you don’t impress me

if you are getting a first class and you are not an activist working with Gwisai. We want to

see both.

106 Deputy Prime Minister, Republic of Zimbabwe 107 Former Dean of the Faculty of Law, University of Zimbabwe 108 Munyaradzi Gwisai, Lecturer, Faculty of Law, UZ


56

After this place Gwisai went to Columbia University, Madhuku went to Cambridge and

yours truly went to Oxford109, in that order. Now they will tell you one thing that I found

which I was very ashamed of was what we are showing today.

At Oxford, Cambridge and Columbia, there are massive and serious debates. In the Oxford

and Cambridge Students Unions, people listen to what the other person is saying and then

stand up and challenge it robustly using diction and the language of confrontation, but

proper language of disputation not disrupting each other. That is what we used to do here

and so I was shocked when I went to Oxford. Members of the International Socialist

Organisation and the Socialist Worker’s Party would come to Oxford to debate the

Conservative right wingers. These right wingers are very sharp by the way. They will floor

you intellectually if you do not know your story.

You must believe in freedom of expression precisely for the views you disagree with. I will

repeat, you must believe in freedom of expression precisely for views that you do not like.

When someone is disagreeing with you, you must listen even more intently. When they are

saying what you love to hear you can even relax. That is the culture we want to build so we

can build our country.

Secondly, there is the issue of entrepreneurship. We are pushing entrepreneurship. There

are also prices to pay around entrepreneurship. A degree in itself is not sufficient in itself.

The problem we have is that we have a British education system that says first class, that

says 15 points, that says I am looking for a job I have got a PhD; I am looking for a job, I

have got a Master’s. What about becoming a job creator?

Bill Gates, for those who have read, went to Harvard, he was studying Physics. In his second

year he had a good idea, dropped out of Harvard and went on to form Microsoft. Now he is

one of the biggest employers in the world. He is one of the richest men in the world. I had

an opportunity at the World Economic Forum to ask him.

I said, ‘Bill, I have read your story, you were at Harvard, in your second year you dropped

out and you went and formed Microsoft. That was a major risk! Where I come from in my

village if I went to Oxford and dropped out, the entire village would stone me. “How dare

you Mutambara? You get the chance to go to Oxford and you drop out. How dare you

Madhuku? You get the chance to go to Cambridge and you drop out?’’ The entire village will

say no. This is because we are embedded with the notion that one must get the degree. How

did you mitigate around that risk, what if your venture didn’t work out?’

109 University of Oxford, UK


57

Then he laughed and said to me. “You know what? I didn’t actually take a risk. I spoke to my

Professors at Harvard and they said, ‘Look you got a good idea, go and try to form your

company, if it works out don’t come back, go and enjoy yourself. If it doesn’t work out come

back, we will work with you and you will get your degree.’’

And I said I have never heard of that before. How many of us would support- you are here

Acting Vice Chancellor- a student who is number one in the Law school or in Engineering

and who has a brilliant idea and they say he/she want to go and form a company. Are you

not going to give fail them and chase them away, or give them a withdrawal, or give them a

discontinue? How flexible are we, Dr. Madhuku, in terms of that first class?

We are having the wrong culture around education. I taught in America. When you are

teaching in America this one comes to you and say Professor can I commercialise this idea?

Can I form a company out of this idea? Professor, can I get a patent out of this idea? But here

in the English system it’s; Professor how can I get fifteen points? Professor, how do I get a

first class? How do I get a place for Master’s? How do I get a place for a PhD? Who do I work

for?

What does all this mean to you as students? I am not running down the academic degree. I

am saying yes to degrees, yes to education but let us be flexible to embrace

entrepreneurship. The Harvard situation where a Professors are plenty of ‘Go, you can come

back when you are ready’ is required. That was an unofficial arrangement, what about

formalising it to encourage students who are doing business studies, law or engineering to

form businesses.

I am simply emphasising that it can’t be business as usual. We require new value systems,

we require a new culture, we require new systems if we are going to empower ourselves as

a people.

The Politics of Indigenisation

I know that Indigenisation is a political agenda of the ruling Zanu-Pf to win votes. I know

land reform is an agenda for Zanu-Pf. So what’s wrong with that? Why don’t you use it as

your program? Any idea can be used for politics. One can argue that Zanu and ZANLA110

went to fight the liberation war to get power, that they were power hungry, but they

brought freedom. So if you feel that there is political capital which can be extracted from

Indigenisation or from the land reform program, make the idea the platform of your

favorite party.

110 Zimbabwe National liberation army-armed wing of ZANU PF during the nationalist liberation struggle of the 1970s-1980


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We should not be driven by hatred. Why are we opposing the Indigenisation program?

What alternatives do we have? And are they good for the country, the workers and the

students? What must we do for the benefit of the workers and not for white capital, Foreign

Direct Investment or the West?

If COMESA111 , the African Union, SADC112 as regions and South Africa as the biggest

economy in the region as a bloc had said sanctions must go, what is the position of the

working class? What value do you derive from these actions? How did we allow a worker’s

party (MDC) to take a position influenced by Uncle Sam?

Shame on us in the MDC113 because we fired a revolutionary like Munyaradzi Gwisai for

calling for the Indigenisation of the economy. Shame on you Prime Minister Tsvangirai and

Deputy PM Mutambara for firing a soldier of Indigenisation and yet you did not fire anyone

for sympathising with imperialism. Don’t allow the leadership of your parties to own your

brains.

A university should be a platform of rational disputation, an arena for debates and

intellectual combat where different views must be accommodated. That is what Makamure

stood for. Don’t fire Gwisai, embrace the land reform program as MDC so that land becomes

an MDC agenda and you ensure that the beneficiaries are the correct ones. if you do not

defend Indigenisation or the land revolution, others will. You make sure the workers,

peasants and students get land; these groups will get empowered by you embracing the

idea and becoming a player.

Entrepreneurship and China

Let me make China a case study to make sure you understand this.

In 2040 China will own 40% of the Global Gross Domestic Product (GGDP), the United

States of America will own 14%. So if you add China, India and the whole of Asia, 70% of

GGDP will be in Asia. China is the future. So what is happening in China? They are creative

around this Indigenisation matter.

There is one big debate happening in China right now. The Chinese are saying to the West,

the future belongs to hybrids and electric cars that are autonomous, intelligent and

connected. The Chinese want to be players in this field so they say Westerners should come

to China and work with them in developing electric cars in businesses where the

111 Common Market for Eastern and Southern Africa 112 Southern Africa Development Community 113 Movement for Democratic Change


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Westerners will have 49% ownership and the Chinese 51%. This is another area where the

Minister of Indigenisation can take lessons: The Chinese are not doing blanket

Indigenisation but they are doing targeted sectors. You know what that does, it brings

human capital, intellectual property, skills and technology transfers from America into

China. In 2020, the Chinese will unleash three to five global producers of electric cars.

So why don’t you ask Brother Comrade China when the elections are happening. Ask him,

there is no democracy and there are no elections and you the world is worshipping them.

Read the signs. Success begets respect. When you have a successful economy and you are

successful as a people or a culture, people do not draw cartoons of you.

Democracy and economics. What is the link?

Let me start by being very upfront. We want democracy in Zimbabwe. I am a soldier of

twenty-two years to prove it. I fought for each year of your age. I am fighting today.

Although I am living in the system and ruling, I am fighting for democracy in there. I have

got 22 years of fighting for democracy. Democracy is a social tool. Human rights are

important and so is good governance is important. What I disagree with, is to elevate these

ideals to the level of a religion.

People say Seek ye first the kingdom of democracy and the rest will follow or Seek ye first

the kingdom of human rights and good governance and the rest will follow. Not necessarily.

In mathematics for those who are in science and mathematics there is what we call

necessary conditions which are not sufficient. What are the other things we need to make it

sufficient? Yes, democracy, human rights and good governance are great but we are

spending too much time on that. Where is the national entrepreneurship association,

where is the national economic vision organisation?

I love ZimRights114, NCA, ISO115 and ZINASU116 and whatever you are doing over there. But

I am challenging you to go beyond democratic rights and talk about economic rights so that

there is a group of people who are discussing Indigenisation from an economic point of

view. What is your economic vision, and do you have a debate on the economic vision of

Zimbabwe or a debate on entrepreneurship?

The National Entrepreneurship Association must come into being so that in addition to

NCA we can address the other dimension of the goal. Why am I saying this? From the Global

Competitive Index, Singapore is number 3 out of 139. Singapore is not your normal western

114 Zimbabwe Human Rights Association 115 International Socialist Organization 116 Zimbabwe National Students Union


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democracy. It is a benevolent dictatorship built by Lee Kuan Yew117 but it has been there as

number three for the past three years. It is successful and globally competitive. What is

making them successful in spite of the lack of democracy, good governance or human

rights?

The usual suspects at the top include China, Kuwait, Saudi Arabia and the United Arab

Emirates. These are undemocratic countries, ruled by have kings and queens. Why are

most of these in the top 20 of the Global Competitive Index?

There is need for strategic thinking, decisiveness and realising the size of market. You can’t

fix Zimbabwe using 12 million people. You must talk about SADC, COMESA and the African

Union. If we are to work together as one billion Africans in the African Union we can go to

the Chinese and you say we are representing a billion people, that is the size of my market.

They will listen not out of love but out of economics. Size of market, innovation, value

addition and moving up the value chain are very important.

I want us to investigate the other factors we need in addition to human rights, good

governance, in addition to human rights so we can empower our people economically and

become a globally competitive economy.

I thank you so very much for listening to us today but I must say as I finish that my remarks

to you are that this country is your country. If you do not step up to the plate and be

counted history is going to condemn you.

We spent a lot of time, 22 years fighting President Robert Mugabe and his ZANU PF. On the

other hand, him and his generation of Ndabaningi Sithole, Edgar Tekere, Abel Muzorewa,

James Chikerema, Josiah Magama Tongogara, J.Z. Moyo, Nikita Mangena and Joshua Nkomo

had a generational outcome. Even though they belonged to different political parties, as a

generation they had an outcome called the Independence of Zimbabwe in 1980. Whatever

Mugabe Nkomo or Ndabaningi does, and whatever you think, you cannot take away from

them, their contribution to Zimbabwe which is 1980.

Forget about the chaos behind the land reform program or Indigenisation. 1980 is good

enough as a product coming out of a generation. The same way Nelson Mandela, Thabo

Mbeki, Walter Sisulu, Steve Biko, Chris Hani and Joe Slovo produced 1994 in South Africa.

Or Kwame Nkrumah produced 1957 in Ghana. What is your generational outcome as young

people? Let us work together as a generation to produce a globally competitive economy.

That is your mandate. We can achieve a generational outcome. Thank You.

117 Lee Kuan Yew [b.1923] is a Singapore statesman, once described as a benevolent dictator


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CONFERENCE PROGRAMME

Kempton Makamure Labour Lecture Series 2010

“Legal and Constitutional Reforms on Indigenisation, Economic Empowerment and Workers’

Rights.”

Date-Venue: 6 October 2010: 0900hrs-1300hrs: New Lecture Theater 400- University of

Zimbabwe

Hosted by: Kempton Makamure Labour Lecture Series, Faculty of Law, UZ

Supported by: Rosa Luxemburg Foundation (RFS) Open Society Initiative Southern Africa (OSISA) Zimbabwe Labour Centre Faculty of Law & Commercial Law Institute (UZ)

Agenda

TIME ACTIVITY SPEAKERS/RESPONSIILITY

0900Hrs Arrival and Registration KMLLLS Board Members Shamiso Nyagura, Tafadzwa

Miti, Talence Temba

0915Hrs Welcome remarks and Introductions Dr. C. Dyanda, Pro-Vice Chancellor, UZ

Ms. K Kudenga Trustee, Zimbabwe Labour

Centre 0930Hrs Historical and Contextual Background to

Indigenisation and Empowerment:

Government Perspective

Hon. S Kasukuwere Min of Youth, Indigenisation &

Empowerment

1000Hrs Indigenisation, Empowerment and the

Working Class (Keynote Address)

Mr T Nyambirai CEO, TN Holdings

1100-

1145Hrs

Business Perspectives on Indigenisation and

Employees Share Ownership Schemes

Hon. Prof. AGO

Mutambara, Deputy Prime Minister

1200-

1245Hrs

Legal and Constitutional reforms on

Indigenization, Economic Empowerment and

Workers rights: Civil Society & Working Class

Perspectives

Cde M. Gwisai Faculty of Law, UZ

Dr L. Madhuku Faculty of Law, UZ

1245-

1315Hrs

Discussion Tawanda Katsuro KMLLLS Board Member

1245 Vote of Thanks Lenin T. Chisaira Editor-in-Chief, KMLLLS Board


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JOURNAL ORDERS

The first ever legal, academic and political journal on the Indigenisation and Economic empowerment question in Zimbabwe is now available. The journal contains the first ever publication of the Labour Court Judgments arranged in topical format. The publication is a joint effort of the Faculty of Law, University of Zimbabwe and the Zimbabwe Labour Centre. Articles from A.G.O. Mutambara, S. Kasukuwere, T. Nyambirai, Madhuku, M. Gwisai among others. Order your copy now for just US$25.

To purchase this book, please complete attached order form and return it with the appropriate payment to:

Zimbabwe Labour Centre P. O. Box 6758 Harare, ZIMBABWE Crossroads House,43 J. Nyerere Way, Harare TELEPHONE/FAX: +263–4–704209 CELL: +263–733–970848 E-MAIL: [email protected], [email protected], [email protected] Crossed cheques and bank drafts should be made payable to the ZIMBABWE LABOUR CENTRE Account No. 20514330013 CBZ, S. Nujoma Branch, Harare.

OR ALTERNATIVELY

Kempton Makamure Labour Law Lecture Series Board Faculty of Law, University of Zimbabwe P.O. Box MP167, Mount Pleasant, Harare, ZIMBABWE (263+4) 303211 ex t. 12061/2 304008 (Direct line) Cell: 0733 970 948 (263+4) 304008

tel:%2B263%E2%80%934%E2%80%93704209





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ORIGINAL BACK COVER