THE EDUCATION BILL: WHAT YOU NEED TO KNOW

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The Education Amendment Bill is currently before Parliament. The proposed law introduces some important changes to the Education Act which governs education policy in Zimbabwe. Given the far-reaching, bipartisan nature of the Bill, every citizen must be familiar with some of the key changes that the law seeks to introduce.

One major criticism is that the bill does not provide for the safety of students and teachers in circumstances where they may be subjected to political involvement. That said, there are progressive aspects of the bill, including the incorporation of some key constitutional principles into the statutory framework.

In my capacity as Education Secretary of the MDC, I have prepared a concise, summary of the Bill to enable the public to be familiar with some of the changes that are currently being debated in Parliament.

This is what you need to know.

What is the purpose of the Education Amendment Bill?

The purpose of the Education Amendment Bill is to align the Education Act [Chapter 25:04] with the Constitution.

The Education Act was enacted on the 8th of June 1987. The purpose of the Education Act is to set out the objectives of and fundamental rights pertaining to education in Zimbabwe. The Act also provides for the establishment, maintenance and regulation of Government schools, Government teachers’ colleges and other Government educational facilities as well as the establishment and administration of non-Government schools and teachers colleges. It further governs the registration and control of educational institution and the transfer of teachers to the Civil Service.

What does the Constitution say about the right to education?

Section 27 of the Constitution provides that the State must take all practical measures to promote free and compulsory basic education for children. The State is also directed to promote higher and tertiary education. In terms of the same section, the State must take measures to ensure that girls are afforded the same opportunities as boys to obtain education at all levels.

Section 75 of the Constitution provides that every citizen and permanent resident of Zimbabwe has a right to basic State-funded education, including adult basic education, which the State, through reasonable legislative and other measures must make progressively available and accessible. The section goes on to establish very person’s right to establish and maintain, at their own expense, independent educational institutions of reasonable standards, provided that they do not discriminate on any ground prohibited by the Constitution.

 Non-discrimination

Section 4 of the Act prohibits discrimination on the grounds of tribe, place of origin, national or ethnic origin, political opinions, colour, creed or gender. Clause 3 of the Bill adds further grounds on which it is impermissible to discriminate against a child on admission to school, namely, nationality, class, custom, culture, marital status pregnancy, social status and legitimacy.

It must be borne in mind that schools that are established by bona fide religious organizations are exempt from the provisions of section 4 as they apply to creed.

“Basic state-funded education”

Clause 4 of the Bill seeks to amend section 5 of the Act, which provides that is the objective in Zimbabwe that primary education for every child of school-going age shall be compulsory and to this end it shall be the duty of the parents of any such child to ensure that such child attends primary school.

The Bill repeals this entire section and replaces it with a provision which, adopting the language of the Constitution, states that every child shall be entitled to basic state-funded education.

The Bill defines “basic state funded education” to include education from early childhood education up to grade seven, adult education up to grade seven or any other category as may be declared as such by the Minister by notice in the Gazette from time to time subject to section 75 of the Constitution.

Mandatory land for school infrastructure

Clause 5 of the Bill adds a new sub-section to section 8 of the Act which makes it mandatory for every local authority in Zimbabwe to provide land for school infrastructure.

Payment of registration and annual fees by non-governmental schools

Clause 9 of the Bill seeks to introduce a new provision which requires every school that is not a government or “faith-based school” to pay a registration fee and an annual fee as may be prescribed by the Minister. The Bill does not define “faith-based school.”

Adult and non-formal education

Clause 10 of the Bill requires every school to “endeavour” to offer non-formal education including adult education.

National Education Advisory Board

Clause 11 of the Bill seeks to amend section 33 of the Act to require the National Education Advisory Board to meet at least once every quarter.

According to section 28 of the Act, the purpose of the Board is to advise the Minister and make recommendations on matters of education to which the Act pertains.

Languages to be taught in public schools

 Clause 12 of the Bill seeks to repeal section 62 of the Act, which, among other things, only recognizes English, Shona and Ndebele. The Bill states that every school shall “endeavour” to teach every recognized language.

In terms of section 6 of the Constitution, Chewa, Chibarwe, English, Kalanga, Koisan, Nambya, Ndau, Ndebele, Shangani, Shona, Sign Language, Sotho, Tonga, Tswana, Venda and Xhosa are the officially recognized languages of Zimbabwe.

Clause 12 of the Bill further states that every school shall “endeavour” to ensure that the language of instruction shall be the language of examination and ensure that the mother tongue is used as a medium of instruction in early childhood education. However, the use of these official languages is subject to the availability of State resources and subject to the availability of teachers, examiners, textbooks and other educational materials necessary for instruction in these languages.

Appointment of sexual and reproductive health personnel

Clause 13 of the Bill seeks to amend section 64 of Act to empower the Minister to make regulations that govern the appointment of sexual and reproductive health personnel in schools.

Use of emerging technologies in education

Clause 14 of the Bill seeks to amend section 69 of the Act to empower the Minister to make regulations that govern the use of emerging technologies in education.

Feeding schemes

Clause 14 of the Bill seeks to amend section 69 of the Act to empower the Minister to make regulations that govern the manner in which feeding schemes may be conducted at schools.

Pupil Discipline and Corporal Punishment

Clause 15 of the Bill seeks to amend section 68 of the Act to include a requirement that the responsible authority at every school shall draw up a disciplinary policy for the school. Clause 15 seeks to outlaw the resort to any treatment which does not respect the human dignity of a pupil, which amounts to physical or psychological torture or which amounts to cruel, inhuman or degrading treatment or punishment. This clause further seeks to incorporate a clause that affords a pupil, with the support of his or her parents, the right to be heard before the pupil is suspended. Clause 15 seeks to firmly prohibit a teacher from beating a child.

Pupils with disabilities

Clause 15 of the Bill seeks to amend section 68 of the Act to incorporate a new section 68B which requires every school to provide infrastructure suitable for pupils with disabilities, subject to the availability of resources. The same clause seeks to empower the Secretary to monitor and enter schools to ascertain whether the rights of pupils with disabilities are being taken into account in teaching and learning. Every school will be required to submit a plan highlighting how the school shall advance the rights of pupils with disabilities.

Pregnant pupils

Clause 15 of the Bill seeks to amend section 68 of the Act to incorporate a new section 68D, which prohibits the exclusion of a pupil on the basis of pregnancy.

Non-payment of school fees

Clause 15 of the Bill seeks to amend section 68 of the Act to incorporate a new section 68D that prohibits the exclusion of a pupil for non-payment of school fees.

Basic Education Fund

Clause 15 of the Bill seeks to amend section 68 of the Act to incorporate a new section 68C that creates a Basic Education Fund to fund educational infrastructure and support the payment of fees for pupils who genuinely cannot afford. The activities of the fund are to be funded by monies appropriated by Parliament or donations, grants or bequests approved by the Minister.

 

 

 

 

 

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Art heals, Zimbabwe

Trudy

“I think artists can go to a level of vision that can often save us from a situation which seems to have no solution whatsoever.” Susan Griffin

“Seeing unofficial results that you lost. Can’t believe it. You deserved to win! Keep on going – A luta continua.”

This was the last message I received from one of my role models in politics, Trudy Stevenson. She sent it on the 31st of July 2018, the day after the parliamentary election. On one of her visits to Zimbabwe from Senegal where she was stationed as Ambassador, she sought me out and invited me into her home in Mount Pleasant. I had not met her before and the most of what I knew about her was what I had read in the newspapers and in the law reports. She had taken on the Ministry of Local Government in a number of Administrative Law cases challenging central government interference in local authorities. I had used her cases in my law lectures on the subject at the university.

We sat on her patio and she did what she did best – gave me a million tips on how to survive in politics. She told me to focus on the people and on the issues, to stay involved with the community and to be courageous. This is how she had managed to win a parliamentary seat in the very constituency that I was running in. I loved her for her passion, for her support and for standing up for what she believed in. I loved her for supporting me. She and a plethora of other women I met and worked with during my campaign bust the myth that women do not support other women.

On the 24th of August 2018 when I heard the unconfirmed rumours that Trudy had passed on in Dakar, my heart broke like a delicate piece of china smashed to a stone floor. I did not want the news to be true. In a state of denial and disbelief, I sent her a direct message on Twitter, “Hi Trudy, are you ok?” I hoped she’d reply promptly as she always did when I reached out. But she didn’t.

I was hurt at losing her, not only because of who she was but also because of what she represented – a strong woman who was not afraid to stand up for what she believed in. She was a courageous woman who was not afraid to challenge the status quo even when the environment she was operating in was dangerous.

I was honoured to be an armour bearer at her funeral service. She was a heroine whose passion for country was never in question. She always loved Zimbabwe and represented the nation with distinction as an ambassador in Senegal.

An enduring memory I have from Trudy’s memorial service was the music by the Chitungwiza Harmony Singers. I had not heard of this choir until then and when I saw them on the order of service, I did not know what to expect. However, the minute they opened their lips to sing, the mood in the church lifted. Every note was perfect. It was celestial, it was harmonious and it was perfect. One of their soloists sang an amazing rendition of “Ave Maria” leaving many of us in tears. Art heals. Music heals. I was so moved by the artistic prowess exhibited by this choir that I started following them and their performances religiously, online and offline – what an exquisite display of Zimbabwean excellence.

It has almost been one year since Trudy Stevenson passed on. The atmosphere in the country is still as dark as it was when she fought so hard in opposition politics against Robert Mugabe. His predecessor is just as ruthless and problematic. The right to protest, though constitutionally enshrined, has been reduced to a lifeless museum piece through police heavy handedness and paranoia by the government that people will rise up against their bad policies.

But thank God for the healing power of art and music. On Saturday, the day after the police violently crushed an opposition protest, I had the privilege of hearing the Chitungwiza Harmony Singers again, this time at the Old Mutual Choir Festival. They sang two beautiful pieces – one western and one traditional. However, the highlight of the event for me was when they led the singing of the Zimbabwe national anthem. Passion for country unified every soul in the room as they sang – flawless and ariose, like the nation we aspire to build. I was so proud to be Zimbabwean. When they were done, it was as though a gentle rain had fallen upon a parched earth.

Art heals. Music heals.

As we approach the first year anniversary of the passing of my amazing friend, Trudy, it is an appropriate time to remember that sustainable social and national change requires courage and bravery from ordinary citizens who wish for a better Zimbabwe. Unless we stand up to bad governance and follow our convictions, nothing will change. Most importantly, we must know that the status quo is not the best Zimbabwe can do; my hope and optimism for a better Zimbabwe spring eternal.

And when it gets hard, we must never forget: Art heals. Music heals.

“May our leaders be exemplary and may the Almighty protect and bless our land.”

Till we meet again, lovely lady.

 

The future of education in Zimbabwe

Yesterday, I went to St Michael’s Junior School. My older brother had attended this school in 1990, almost thirty years ago. My little brother had followed suit in 1994. I remember my dad dropping us off at school in his box Sunny ridiculously early on chilly mornings. I had schooled across the road at Hellenic. My mom’s employer held desks there. As a nurse in private practice, she could afford a decent education there for me.

As I drove into my brothers’ old school, nothing had changed but everything had changed – much like the country. I recognized one of the nuns, Sr Margaret, who had taught my little brother all those decades ago. Her hair was now snow white but she maintained a good rapport with the boys.

I had been asked by one of the parents to come and speak to their pupils about becoming a lawyer. After a decade of practising law and several years of teaching it, I know that simple is complicated. How do you deconstruct notions of justice, constitutionality or criminal responsibility to a group of 8 to 11 year old boys? A little nervous, I entered the school hall in my black robe, black pin-striped suit and crisp, white jabot. I also carried my barristerial blue bag which contained a brief bound in red ribbon. I wanted them to get a sense of daily courtroom life.

I opened my presentation by asking them, “what am I?”

“A lawyer”, they screamed out.

“What do you think is in my bag?” I retorted.

“Money!!!” they yelled back.

So began our conversation about what lawyers do and why the profession is important. We talked about the need always to tell the truth, to read widely and to help people solve problems. I told them that they would one day meet a girl. “Eeeeuw”, they all said. I told them that they could fall in love and decide to get married. “Yaaayyy”, they all said. I explained that things may not work out and they may need to get divorced. “Noooo,” they all said. I told them that they would need a lawyer to help them part ways and live happily ever after. “Aaaaah,” they all said. I even gave them some homework – to ask their parents what a Constitution is.

I envied their enthusiasm and zest for life. Education is the bedrock of any society. I have always been taught that education is the power to think clearly, the power to act well in the world’s work, and the power to appreciate life.

Against this background, I look forward to my new role as the Secretary for Education, Sport, Arts and Culture in the country’s main opposition party, the Movement for Democratic Change. Education is a national policy issue on which there must be broad consensus. Regardless of our different political leanings, what we can agree on is the fact that without a strong, well-funded education system, Zimbabwe cannot leap into the future.

We often pay lip service to the importance of education yet we have failed to preserve respect for the teaching profession.We have failed to make a concerted investment into maintaining our schools, building new ones and bringing our curriculum into line with modern trends. Our schools in the rural areas are shambolic. Technology is outpacing our teaching methods. We have ignored the fact that mother tongue tuition forms the basic building block for all other learning; we do not have enough textbooks in the various indigenous languages in Zimbabwe. We do not include a full and relevant study of civics but expect citizens to be informed and responsible upon leaving school. We have not sincerely reviewed our History curriculum to ensure that children are taught the full, untainted story of how Zimbabwe came to be to ensure that clarity of mind is developed to enable us to move forward. Most importantly, we have left out civics.

I look forward to championing education during my tenure as Secretary of this important portfolio. I strongly believe that education oughtn’t be an indoctrination through which we churn out master crammers. Rather, education must be the means by which we build men and women adept to deal critically and creatively with reality and discover how to participate in the transformation of their world. Our education must be forward-looking. It must inspire critical and original thinking.

I will shadow the sitting Ministers of Education and hold the to the ideals set out in the Constitution and best practice globally. We will participate in the debates around the Education Bill. Consistent with our mandate as a government in waiting, we will prepare a granular White Paper on Education with recommendations on how to approach the challenges the Zimbabwean education sector faces. We will consult widely and draw on the expertise of the many educationists, learners and parents. We will pilot projects that will inspire fresh approaches to learning in Zimbabwe.

I undertake to take the attitude of a student, never be too big to ask questions, never knowing too much to learn something new.

“Let us pick up our books and our pens. They are our most powerful weapons. One child, one teacher, one book and one pen can change the world.” – Malala Yousafzai 

Macron’s Victory: 3 Lessons for the Young African

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Photo Credit: Reuters

“More and more are coming from the third world, taking advantage of our benefits. It’s a choice of civilization. I will be the president of those French who want to continue living in France as the French do.”

— Ms. Le Pen, at the rally in Marseille

Madame Joscelyne

I first came across the name “Le Pen” a decade and a half ago when I was an Advanced Level French student at Arundel School. My life then was one of complicated simplicity, one of pink, arched walls and well manicured lawns. Flap jacks and Sun Jam were a somehow a tea time treat. A typical day was punctuated by bells that chimed at 45-minute intervals and regimented by rules that mostly made little sense but were designed to teach us how to submit to authority – not unique training for the young African girl and the threshold of ‘adulthood’ – I use that term generously.

The woman who taught us French, Madame Joscelyne, was an icon of the institution – herself an old girl. To call her a teacher is to minimise her contribution to our view of the world. She didn’t teach. She influenced. She typified the school’s delicious contradictions well – an obsession with the rules and an equal obsession with rebelling against them. I loved this about her. Her trademark look was a sophisticated, foxy, silver bob – strands all perfectly in place) and khaki chinos – relaxed but uptight. She often regaled us with tales of how she used to play strip tennis as a boarder – bad. But she insisted on discipline, hard work and made us watch France 5  – good. She’d tell us that we would never marry the loves of our lives and that they’d somehow always get away – uncertain. Whenever she walked into the classroom, the scent of what I guess must have been Ermenegildo Zegna fell over the room like an unexpected shower of cold rain on an October afternoon – intoxicating and beautiful.

I chose to speak about “Le Racisme” in my final French oral exam. This was pursuant to a French class led by Madame Joscelyne where we explored the rise of the Front National in France and with it, the phenomenon that was Jean-Marie Le Pen. We talked about Le Pen’s desire to restrict immigration to France, his euroscepticism and his emphasis on traditional culture and values. We also looked at unrest on the part of the “banlieue” youths, mostly immigrants from Africa, who saw the French state as the enemy. We learnt that France has all kinds of suburbs, but the word for them, banlieues, had become pejorative, meaning slums dominated by immigrants. We tore the issue and its complexities apart and ruminated on possible solutions.

The school had a way of making us believe we were or could be the next leaders of the free world. Mrs Lutalo brought the French revolution to life and Killer Miller opened us up to a world of critiquing revisionist world history. Mrs Gould taught us to write English using the pens of our souls.

It was the best of times and it was the best of times.

The 2017 French Election

Fast forward to 2017. A lot has changed but nothing has changed.

In various parts of the world, including the United States and the United Kingdom, there has been a rise in far right politics characterised by nationalism, an anti-immigration sentiment and an attempt to halt the perceived “left wing” globalization project.

France, paradoxically, was not to be spared.

The 2017 French presidential election was held on 23 April and 7 May 2017. As no candidate won a majority in the first round on 23 April, a run-off was held between the top two candidates, Emmanuel Macron of En Marche! and Marine Le Pen of the Front National. Marion Anne Perrine “Marine” Le Pen is a French politician and lawyer. In addition to being the former president of the Front National, she is the youngest daughter of Jean-Marie Le Pen. Marine Le Pen expelled her father from the party on the 20th of August 2015 after new controversial statements and found him marginalized in the French political landscape.

Macron won the 2017 French election by a decisive margin on 7 May 2017.

As the world is changing before our eyes and as young Africa, are we striving towards an ideal that is in crisis? Is it time to stop and take stock without any external prompting? Are we stuck between the rock of colonialism and the hard place of autocratic, corrupt, aged, post-colonial leadership? What are we to do?

What lessons can the young African who is curious about where Africa fits on the global stage draw from all this?

Lesson number 1: Youth is good – but it’s not enough to be young

One of the features of Macron’s presidential bid that has fascinated many is his youth. At 39, he will become the youngest President in French history and the youngest French head of state since Napoleon. From an African standpoint, this is a phenomenon to behold. As observed by David E Kiwuwa, an Associate Professor of International Studies at Princeton University, there is something unmistakably common in Africa: the continent’s ageing and long-serving presidents. Africa’s five longest presidencies stretch between 29 and 37 years, adding to a cumulative 169 years. Their longevity in office is matched by their old age, ranging from 71 to 93 years, and a combined 390 years.

Hastings Banda, Malawi’s self-proclaimed president for life, was in his late 90s when he was ousted from office in 1994. Gabon’s Omar Bongo had been president for a record 41 years in 2011 when he died in office at the age of 73. Zimbabwe’s Robert Mugabe is 93, making him the oldest leader in the world. As at 2015, Africa’s five longest presidencies were cumulatively 169 years. The average age of the 10 oldest presidents is 78.5, compared to 52 in the most developed countries.

Sitting next to these statistics are figures that show a clear youth bulge in Africa. According to a 2015 CNN report, 85% percent of Angolans were not born when Dos Santos came into power in 1979. 83% of Zimbabweans were born after Mugabe first came into power as prime minister in 1980, while 79% percent of Ugandans were born after Museveni took over power in 1986. On average, only between 15% to 21% of their citizens were alive when these presidents took the reins.

It is no surprise therefore, that most young people feel disconnected from their leaders who mostly hail from an era long past. The ageing face of African governance has led to spirited calls for the young to take over – somehow. This is valid. And hard to contest. However, being young alone is not enough to go the distance as the example of Macron shows. A former civil servant and investment banker, he studied philosophy at Paris Nanterre University, completed a Master’s of Public Affairs at Sciences Po, and graduated from the Ecole Nationale d’Administration in 2004. He worked as an Inspector of Finances in the Inspectorate General of Finances and then became an investment banker at Rothschild & Cie Banque. He joined active politics at 29 as a member of the Socialist Party. Macron was appointed as deputy secretary-general under Hollande’s first government in 2012. He was appointed Minister of Economy, Industry and Digital Affairs in 2014.

It is evident that Macron is not an ordinary 39 year old. If the young of Africa are to lead, we must be qualified to do so. We must join formal politics. We must acquire public service experience. We must learn that it’s important to start small – to be a councillor or Minister before we can aspire to be the President. We must study public affairs and attain a firm knowledge of the states that succeed and establish why they succeed. We must study philosophy so that when confronted with the hard questions on where Africa stands in a post-colonial world, we have a firm ideology that ensures we do not return to slavery – economic or political in the global arena. We must remember at all times that the ageing leaders we have currently were once young – we must not be a replication of young leadership that has no clear trajectory or plan for progress. We must learn from the mistakes of generations ahead of us, consolidate their gains and move decisively forward.

Youth is good but it is not enough to be young.

Lesson number 2: We cannot run away from Africa forever

A young African woman once said of her African country: dreams die here. The experience of the young person in Africa makes it easy to draw that conclusion. Unemployment, failing economies, hunger, broken public health systems, underdevelopment, disease, political violence, corruption, war, rigged elections and the absence of freedom, fairness and opportunity make the outside world an attractive prospect. African states are often in a position to give the young African just enough to enter and possibly succeed in the first world – a good command of English or French, sound secondary education and a dream for a better life. Leaving Africa to seek ‘greener pastures’ has become the African young person’s coping mechanism to deal with the lack of opportunity back home. But we must be honest with ourselves here: one man’s dream for a better life is another man’s immigration problem.

Immigration has become a strong election theme, the world over. Unrest and armed conflict in the Middle East have contributed to this but so has rising African emigration. We celebrate that Macron won the 2017 election but we must remember that the far right garnered approximately 35% of the vote. We cannot forget that Jean-Marie Le Pen’s goal was to build a vehicle for far-right politics in the post-Nazi era. Zack Beauchamp observes that the essential theory underpinning Le Pen was that while language about white racial superiority had been discredited, fear of difference in general had not. He capitalized on fears about immigration, which had been growing at an unprecedented rate after the war, particularly immigration from nonwhite, primarily Muslim countries like Algeria. In 1984, Le Pen famously warned that “Tomorrow the immigrants will move in with you, eat your soup, and they will sleep with your wife, your daughter, or your son.” Marine Le Pen in the 2017 Presidential debate for her part said “Just watch the interlopers from the world come and install themselves in our home. They want to transform France into a giant squat. But it’s up to the owner to decide who can come in. So, our first act will be to restore France’s frontiers.”

We may not agree with the rise of the far right agenda. However, we must not refuse to engage with it. Plainly put and this is difficult to swallow – the space or opportunity for young people to move abroad is becoming smaller and smaller. It may not be said outrightly – for to do so may be viewed as politically incorrect and possibly racist – but the reality is that a rising number of those who are nationals in the states in which we seek better lives feel we are unduly constraining their resources. The question that they surely ask is – why can’t these people fix their own countries instead of flooding ours? The answers are complex – ranging as they do from the warped legacy of colonialism to the impossible task of removing despotic leaders. We must choose to engage with the complexity and not run away from it.

For now, Macron has stalled the anti-immigration agenda to a degree. However, as the next generation that will govern African and hopefully take it into the future, we must budget for the day that we are openly told we are not welcome in countries that are not ours.

At some point, Africa’s young must stop giving excuses and accept that running away from the intricate problems is like chasing our shadows. The problems will follow us wherever we go – in one form or shape or the other. The African diaspora has an important role to play in rebuilding Africa. But we must always remember that Africa can only be built from the inside out and not from the outside in.

We cannot run away from Africa forever.

Lesson number 3: We must now think continent not just country

It is often said that we can go further together than alone. An interesting feature of Africa is how poorly integrated we are as a continent. There is a large intersection between our respective histories,  issues and problems as individual states but not enough unity of purpose on trade policy, conflict resolution, cultural exchange and general movement towards a rewarding and inspirational African project. This is not to say an African Union does not exist. It does. As the successor to the Organisation of African Unity, which was created in 1963 to eliminate the last vestiges of colonialism in Africa, the African Union came into existence in July 2002 at the Durban heads of state summit with the more focused goal of propelling African states towards peace and prosperity as the basis for achieving the ultimate goal of political and economic integration of its member states. The AU was modelled on the European Union with structures that included an Assembly of heads of state/government, an Executive in which countries were represented by their foreign ministers and the AU Commission which is the administrative branch made up of 10 commissioners and headed by a President.

However, the organization remains a white elephant and has not managed to quench the young African’s dream for progress on the continent – economically, politically, socially and culturally.

The example of Macron shows us that it is the responsibility of the young to reform the African Union project and to correct its weaknesses and ensure it works for everyone.

Macron discussed his plans for Europe at a private dinner party in March at the home of a French TV celebrity, attended by Belgium’s 41-year-old Prime Minister Charles Michel and Luxembourg’s Prime Minister Xavier Bettel, 44. “It was a moment for sharing our commitments on Europe,” Michel told Reuters of the dinner, which was kept secret until word leaked out in April. “In the coming months, we’re going to have to relaunch the European project … and for that we will need partners.”

By the same token, young Africans need to relaunch the African Union project. We need to see more and cheaper inter-Africa flights. We need to bridge the divide between Anglophone and Francophone Africa. We need to tear down our borders and ease migration. We need to optimize our trade model and be genuine about creating economies that work for more than just the political class. We must reconsider our relationship with international financial institutions. We must be wary of nouveau economic colonisers who may be glue in the short term but will turn out to be quicksand in the future. We need to build an African justice mechanism that is genuine about fighting impunity, crimes against humanity and war crimes on the continent. We need to ensure that our leaders hold each other to account – openly and honestly: the African way of silence has not served us well. We need to build the political will that will form the legs upon which all the high sounding declarations and treaties, conventions and protocols can finally stand and yield results. We need to move towards an economic culture of trade not aid – in the dire instances where aid is required, it must not be stolen and corruptly dealt with by the political class. We must stop ignoring and start confronting armed conflict on the continent starting with the DRC and South Sudan. We must invest in infrastructure and build for ourselves the lives we desperately seek when we travel abroad.

When young people move to seek political leadership of their nations, the African project must be high on the list of manifesto priorities.

The next generation of African leaders must think continent, not just country

Anything is possible

And so anything is possible.

As Africans, all too often we deny ourselves the luxury of dreaming. Macron, set up a political party one year ago. His wife was his teacher when he was a teenager and she’s 24 years his senior. Africa must be ready to defy convention and forge its own path if it is to succeed.

It may just be time for the young to to rebel against the authority of the old – clinging fast to African tradition and its lessons but also freeing ourselves from it where it no longer serves us.

Africa’s future is bright and it is young.

 

Of Cattle, Goats and the Movable Property Security Interests Bill

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Introduction

As the economic situation in Zimbabwe continues to decline, the government has had to resort to gymnastic levels of innovation to overcome challenges around productivity, liquidity and access to capital. Some of the innovations introduced in an attempt to deal with the economic downturn include the introduction of bond notes (the Reserve Bank Governor’s version of fictitious, locally printed money touted as equivalent to the United States dollar), the suggestion by the Minister of Education that school fees be payable in the form of livestock – that is, cattle and goats and new legislation to enable the owners of movable assets including livestock to use such movable assets as security for bank loans.

Traditionally, financial institutions prefer to give loans on the back of immovable security, that is, a home, a commercial property or land. The rationale underlying this traditional approach is that immovable property is more secure than movable property because title deeds formally registered with the Deeds Registry can be presented as proof of ownership of the immovable property. This leaves less room for a dispute as to whether the person who encumbered the property had the legal authority to do so. Additionally, a mortgage bond can be registered in respect of immovable property to prevent the sale of the property before the loan has been fully repaid. It is also impossible for the debtor to run away with an immovable asset. All these factors combine to make immovable property more attractive as security for a loan than movable property.

The Movable Property Security Interests Bill seeks to disrupt the traditional approach to securitising loans by providing for the registration of movable property security interests. In other words, the Bill intends to create a more secure framework for the use of movable property, such as cars, furniture, cattle and goats, as collateral for the repayment of loans.

Why is this Bill being introduced?

According to the Parliament of Zimbabwe website, the Bill is part of government efforts to improve the ‘ease of doing business’ in Zimbabwe. The ‘ease of doing business’ index is an index created by the World Bank Group and according to the Herald of the 15th of December 2015, the Bill was drafted by a World Bank consultant.

The World Bank Report on Doing Business and the Global Secured Transactions and Collateral Registries Program’ revealed that the ‘Doing Business Project’ has influenced over 300 regulatory reforms around the world, by measuring and tracking changes in the regulations applying to domestic companies, including secured transactions. The Doing Business Report 2012 revealed that between June 2010 and June 2011, 21 jurisdictions reformed their secured transaction laws. The goal of the Secured Transactions and Collateral Registries Program is to increase access to credit for businesses, especially small to medium enterprises, by providing technical advice on implementing secured transactions laws and developing collateral registries to facilitate the use of movable assets as collateral.

Most Zimbabweans fail to access credit facilities from lenders due to lack of collateral in the form of immovable assets. It is estimated that more than 80% of Zimbabweans are informally employed and do not have access to credit facilities. The World Bank, being one of the advocates of the Movable Property Security Interests Bill, argues that small to medium enterprises play a pivotal role in economic development. However, they are less likely to secure bank loans due to, inter alia, a weak regulatory framework, limited bank financing and few financing alternatives for start-ups. The World Bank notes that about 50% of formal small to medium enterprises do not have access to formal credit facilities. According to the argument, this calls for the introduction of innovative ways to unlock  much needed capital. The proposed Bill therefore, seeks to create an enabling environment whereby small to medium enterprises and the general public would be able to use their movable assets to secure loans.

Zambia and other jurisdictions in Africa and other parts of the world appear to have adopted this approach already and for the same reasons argued for by the World Bank.

Is the use of movable property as collateral for loans a new idea?

As a matter of law, the use of movable property as special security for the payment of a debt or generally the performance of an obligation is not new. For example, the law recognizes that a pledge can constitute special security over movable property. Equally, a notarial bond provides a means by which a debtor may hypothecate movable property without delivering it to the creditor in whose favour the bond is passed. Hire purchase agreements rest under similar principles.

It is therefore not disputed that the law can and should enable movable assets to be used as collateral to secure a loan agreement.

However, the legislative device that has been invoked through the expedient of the Bill in question is not without problems and the outcomes hoped to be achieved may not be realized if the Bill is enacted without amendment.

Will this new law mean cattle and goats may be used as collateral to secure bank loans? 

In a recent address to Parliament, Mr Patrick Chinamasa, the Minister of Finance, said the Movable Property Security Interest Bill would make it much easier for those with movable assets, such as livestock to get bank loans. This led to a flurry of newspaper headlines about how Zimbabwe plans to secure bank loans with cows. This interpretation is accurate in view of the fact that clause 2 of the Bill defines “movable property” as “any tangible or intangible property other than immovable property”. Livestock including cattle and goats would fall within the ambit of this definition.

The suggestion around references to livestock centres around the idea that farmers, especially rural farmers and beneficiaries of the land reform program in Zimbabwe will finally be able to obtain loans by using their livestock as collateral. One of the leading explanations that is given for the lack of productivity on Zimbabwe’s farms is the lack of access to capital for farmers.

What is the solution to the “collateral problem” farmers face?

According to clause 4 of the Bill, a new department known as the Collateral Registry will be created by the new law. Clause 5(1) of the Bill states that the purpose of the Registry is “to facilitate commerce, industry and other socio-economic activities by enabling individuals and businesses to utilise their movable property as collateral for credit”.

The difficulties that many a new farmer has experienced in raising capital are well documented. However, if the government were genuine about empowering the rural farmer, it would start by giving the rural farmer or tiller of agricultural land security of tenure. According to section 72(2) of the Constitution of Zimbabwe, which is the supreme law of the land, all agricultural land vests in the State. This means that no farmer in Zimbabwe holds title to his land. It follows that no farmer in Zimbabwe can use his land as collateral to secure a loan.

With all due respect, the government cannot approbate and reprobate – claim to be empowering small business, particularly farmers, by introducing laws that expand the notion of real security and in the same breath continue to deprive farmers of the most potent form of real security – title to land. Land tenure in the agricultural sector has worked before. Why not revert to a winning formula? This is what I would have expected the World Bank consultant to be devoting his or her energies to. The re-awakening of the Zimbabwean economy is not a matter of ticking boxes or applying without thought or amendment a notion that has been applied in other jurisdictions. It is a matter of addressing the fundamental cause of the problem, with appropriate regard to the context of the nation where the problem exists.

It begs no mention that Zimbabwe requires a productive and thriving agricultural sector in order for the economy to function profitably and sustainably. Once the agricultural sector kicks into motion, industry will re-awaken. Jobs will be created. The import bill will be drastically reduced. The country will have goods to export which will in turn create foreign currency earnings for the country. Infrastructure, including roads, dams and bridges will be built to support the agricultural sector and our fortunes will be in a better position to improve.

Therefore, if any commodity is crying out to be turned into collateral – it is agricultural land. Once land tenure is created for agricultural land, not only will such land be available for use as collateral for bank loans but it will mean the holders of such land will be more secure. As things stand, most of the farmers in possession of agricultural land hold such land on the strength of an offer letter – the clear terms of which are that the State can withdraw such land at any time and for any reason the State deems fit. most farmers would not have the financial muscle or wherewithal to challenge the withdrawal of their right to use the land. They therefore are left fully exposed and have very weak property rights in respect of the land they utilise. It is irrational to suggest that a farmer who tills agricultural land should be placed in a position where he or she gives up his or her livestock as collateral to obtain a loan for farming purposes in circumstances where the land can be withdrawn at any time by the government. The farmer would be left completely exposed if he has used his livestock as security to obtain money to put a crop in the ground then the land is forcibly acquired for re-allocation as tends to happen. Both the land and the livestock would be lost! It would make more sense to use the land primarily as security. (At the very least, add movable property security interests legislation to a framework that has fully exhausted the potential for the full use of immovable property as security. Immovable land is better suited to this purpose as highlighted above.) Such respect for property rights in the true and full sense would no doubt improve the ease of doing business in Zimbabwe.

It is always preferable to solve problems at their root than to proffer piecemeal solutions that only paper over the symptoms and ignore fundamentals that are in hopeless disarray.

How accessible is the process for a small business, ordinary farmer or lay individual?

For a process that is designed to cater to the needs of a low-income market, the process for registering a security interest in an item of movable property is extremely complicated and the legislation is not cast in a user friendly manner – as would have been expected for a market that is unlikely to have access to formal legal representation to assist in the securitisation process. To illustrate the point, a “registered notice” is defined as “a notice of a security interest registered in the Registry, and includes an electronic communication to the Registry of information in an initial registered notice, an amendment notice or a cancellation notice.” How is a rural farmer or the owner of a small business meant to interpret this definition?

After much convoluted language, clause 9 provides that a registered notice shall be deemed to be the definitive record of any record or obligation recorded therein – and presumably, on an application of clause 9(2), a certificate confirming the contents of a registered notice can be issued as proof of the contents of the registration notice. The Bill does nothing to provide for what this “certificate” is or how it is issued. Clause 11, the section that deals with regulations similarly is silent on this issue.

After reading the Bill, one is left with more questions than answers on how the system is to work in practice. There is a need to (i) simplify the process and (ii) simplify the language of the legislation of the desired outcomes – i.e. creating a user friendly framework for small business to use their movable assets is to be achieved.

Is there adequate protection for the debtor?

Clause 8 of the Bill allows the loan agreement to make a provision for a creditor to seize the movable assets from a debtor before the finalization of court proceedings. This places the debtor in an extremely weak position as a creditor can descend on the property with no notice and before the rights of the parties have been finally determined. The potential for disaster ought to be immediately clear in the event that the movable property concerned is livestock which requires strict methods of transportation, storage and upkeep to be observed.

While it is understood that the interests of a creditor must be secured, the Bill as it stands creates the potential for unfair contractual terms to be imposed on a small business or lay person who does not have the bargaining power to protect his or interests. This would undermine the essence of the legislation which is to empower small businesses to unlock capital. the unlocking of capital must not come with inadequate legal protection against the loss of the collateral asset.

Is there adequate protection for the creditor?

In addition to the traditional reasons attaching to the undesirability of accepting movable assets as collateral, it must be highlighted that the Bill does not do enough to ensure loans given by a creditor are secure. There is no mechanism in place to ensure that a person who registers a notice on movable property in their name is in fact the owner of the property. This could lead to disputes around ownership pursuant to a registration. The Bill does not state how such a dispute would be resolved. Clause 10 of also Bill exempts the Reserve Bank and the Collateral Registry from liability in the event that a mistake is made. This could have disastrous consequences in the event that a lender acts on erroneous information provided by the system, albeit bona fide. The said lender would be left with no recourse at law – a factor that could militate against lenders having confidence in the system. The Bill ought to provide stronger safety nets in this regard.

There must also be stronger safeguards against the potential for corrupt practices as trust will be paramount to ensure the system works.

Who holds the movable property during the subsistence of the loan?

The Bill appears to be silent on the question of who possesses the secured property during the period that the loan agreement is in operation. Clause 21(1) of the Bill seems to suggest that it can be either the debtor or the creditor – presumably depending on the agreement between the parties. It is my respectful view that insufficient thought has been devoted to the modalities of the possession of the secured movables pending repayment of the loan. This anomaly has the potential to leave both parties exposed. If the collateral were an immovable property, this question is answered by the fact that the debtor can continue to hold the property and because it is fixed, this is not risky. In the case of movables, there is a real risk and possibility that the holder of the movable property can disappear with it or consume it – leaving the creditor exposed. Criminal sanction is not a sufficient answer to this concern to a lender who simply wants their money back. Equally, if the creditor is to hold the property, the question becomes – where is it stored? How can the property be retained in good order?

All that the Bill says in answer to the above at clause 21(1) is that “A debtor or secured creditor in possession of the collateral must exercise reasonable care to preserve the asset.” The question that arises is, what is “reasonable care”? In the event that the movable asset is livestock – what happens if the animals are infected by disease or are ravaged by drought despite the possessor’s best efforts? A possible solution may be to insure the movable property – but, how likely is a small business to be able to afford the cost of such insurance and the all the fees required to be paid at each stage of the process? This state of affairs will be compounded by the weak bargaining power a small business or individual farmer will have in the contract-making process. More protection is required to secure the position of a small-time borrower.

Conclusion

In conclusion, celebration around the measures sought to be introduced must be accompanied with caution as it will not just be a case of owning a car or cows and consequently being entitled to bank loans. Despite what has been reported in the media, the Bill does not compel any banking institution, micro-financier or other lender to accept movable assets as collateral – such a provision would be unconstitutional in any event. The decision as to whether to accept movable assets as collateral will remain with the bank or lender concerned pursuant to a full risk assessment and depending on the availability of funds for this purpose. All the law can do is create a framework that encourages the acceptance of movable property as security, primarily through enabling the registration of the secured interest. Additionally, the law places a borrower in a very weak position – which could lead to more loss than gain. While reform in the law is a good thing, there can be no substitute for reforms that deal with the fundamental problems as opposed to reforms that paper over the cracks. At the heart of any recovery process in Zimbabwe lies the need to address the big elephant in the room which is the need for more secure protection for property rights. Without reform in this area, we will continue to reel under superficial high sounding policies that ultimately do not lead to a sustainable change in the country’s fortunes – no matter how well-intended.

(C) Adv Fadzayi Mahere. Mahere is a constitutional lawyer who practises at the Harare Bar and lectures Property Law and Administrative Law at the University of Zimbabwe.

Please do not reproduce without the author’s permission.

“Bond notes” and the law: A further thought

trill

Following the proposal by the Reserve Bank Governor, Dr John Mangudya, to introduce “bond notes” to operate “alongside” the multi-currency system currently in force in Zimbabwe, various legal experts have suggested that a legal framework may exist in terms of which the “bond notes” may be introduced.

I remain of the respectful view that the proposed introduction of “bond notes” by the Governor breaches the provisions of section 68 of the Constitution which requires the Governor, as an administrative authority, inter alia, to act lawfully, reasonably and in a fair manner. I have maintained that, currently, there appears not to exist a legal framework within which the “bond notes” will operate. Their introduction in my humble view would be accordingly unlawful.

The legal experts who have suggested a legal framework exists have relied on the provisions of Part VI of the Public Finance Management Act, the possible applicability of which I have discussed in a previous piece. In sum, I have argued that it is not lawful to introduce “bond notes” as envisaged by the Governor by the expedient of that Act. Its provisions to not contemplate what the Governor proposes to do through the introduction of fictitious “bond note” money.

Regrettably, Part VI of the Public Finance Management Act has in fact been repealed. It is no longer part of our statute books. Section 39(c) of the Public Debt Management Act [Chapter 22:21] repeals the whole of Part VI of the Public Finance Management Act. It follows, as observed by another legal expert, that the entire Public Finance Management Act argument does not arise.

It begs no mention that repealed law is no law at all. The law does not permit an administrative authority to purport to exercise a power arising from a law that no longer exists.

That said, it appears that no competent legal basis has yet been found upon which the Governor can rely upon to lawfully introduce bond notes as he proposes to do.

(C) Fadzayi Mahere. Not to be reproduced without the author’s prior permission.

“Bond notes” and the law: A response to Tawanda Nyambirai

A Zimbabwean street vendor sorts new coins in front of a bank in Harare, December 18, 2014. Reserve Bank of Zimbabwe governor John Mangudya introduced the new "bond coins" in December 2014. REUTERS/Philimon Bulawayo
A Zimbabwean street vendor sorts new coins in front of a bank in Harare, December 18, 2014. Reserve Bank of Zimbabwe governor John Mangudya introduced the new “bond coins” in December 2014. (c)REUTERS/Philimon Bulawayo

The Nyambirai Argument

On the 8th of May 2016, Mr Tawanda Nyambirai, a respected banker and lawyer, proffered a view on the legality of the “bond notes” that the Governor of the Reserve Bank, Dr John Mangudya, has said (in a press statement) he intends to inject into the market in the near future. A copy of Mr Nyambirai’s opinion may be found here.

As a concerned citizen who stands to be affected by the recent announcements of the Governor, one is following the plans of the Reserve Bank closely. One would hate to be caught off-guard as most Zimbabweans were in 2008 when, among other Reserve Bank measures, foreign currency deposits held in commercial banks were unilaterally taken by the Reserve Bank on the back of a hazy and unlawful justification that was later to be impugned by the Supreme Court in the case of Standard Chartered Bank Zimbabwe Limited v China Shougang International. Exercising my mind without rest since the announcement was made is the question of whether Dr Mangudya’s plans are lawful. I have already, in a previous piece, opined broadly on this question. I am of the humble view that the proposed introduction of bond notes by the Governor breaches the provisions of section 68 of the Constitution which requires the Governor, as an administrative authority, inter alia to act lawfully, reasonably and in a fair manner.

In this piece, I seek to respectfully disagree with aspects of what I will term “the Nyambirai argument”.

Ripeness

My first point of departure with Mr Nyambirai’s argument is his contention that because the bond notes have note yet been issued, the question of the lawfulness of the Governor’s plans does not yet arise. The starting point here is section 85 of the Constitution which permits a litigant to approach a court alleging that a fundamental right or freedom is likely to be infringed. It is established even under the common law that a well-grounded threat of harm can constitute a basis upon which a court can prohibit an unlawful course of conduct, even before it has taken place (subject of course to all the requirements of an interdict being met). In short, a litigant does not need to wait until the horse has bolted in order to seek the interference of the court against an infringement of their right to administrative justice under the Constitution.

Additionally, it can be safely stated that the proposed issuance of bond notes is at an advanced stage. The Governor asserted at paragraph 13 of his Press Statement of the 4th of May 2016 that the Afreximbank facility which will “back” (whatever that means) the issue of the bond notes has already been established. The Governor has also set out in detail how the “bond notes” will operate. For instance, we know that the “bond notes” will be at par with the US dollar and will be in denominations of $2; $5; $10 and $20 and will. Crucially, according to the Governor, the bond notes “shall” (the wording here is peremptory) operate alongside the currencies within the multi-currency system. This means that there is a real risk and possibility that the use of the bond note will be foisted upon the transacting public and given to us in exchange for our hard currency, i.e. the United States dollar. Why should one take monopoly money (with respect) in exchange of real money? Why should one have to wait until the acquisition has taken place to approach the court?

The Governor is past the consultation and development stage – the introduction of “bond notes” can safely be described as a fait accompli in the mind of the Governor when one reads the press statement. In the circumstances, all the ingredients that would at law or in a court establish a well-grounded threat of harm and a likelihood that our rights to administrative justice under section 68 of the Constitutional exist – particularly the right to conduct by the Governor that is lawful, reasonable and both procedurally and substantively fair.

It bears mention that the strict legal argument aside, there can be no harm in the populace debating the legality of proposed administrative conduct. One does not have to wait until an illegality is in fact committed before asking questions as to the legal effect of a plan communicated by an administrative authority, in writing, is. Accountability and civic education in fact demand this.

Lawfulness – The applicability of the Public Finance Management Act [Cap 22:19]

In my earlier article, I took issue with the non-existence of a legal basis for the issuance of bonds notes by the Reserve Bank and/or the Governor. Section 68 of the Constitution requires that all administrative conduct be lawful. I remain of the respectful view that the Reserve Bank Act does not empower the Governor to issue “bond notes”. The measures that the Governor is empowered to take to address cash shortages are carefully delineated under section 42B of the Reserve Bank Act. These measures do not include a power to issue “bond notes.”

The question that then arises is: does another lawful basis exist? Mr Nyambirai suggests that a basis can be found under the Public Finance Management Act. I respectfully differ with Mr Nyambirai that the Public Finance Management Act has any application to the Governor’s plans to introduce “bond notes”. I am fortified in my view by the fact that the Governor has no powers whatsoever in terms of the Public Finance Management Act – to do anything. The administrative authority responsible for administering the Public Finance Management Act is the Minister of Finance. Accordingly, it follows that the Governor cannot purport to be doing or implementing anything under this Act. Nowhere in his press statement has he purported to speak on behalf of the Minister of Finance – he would have no authority to do so. The law does not authorise him to do so. To the extent that the Governor thus purports to exercise a function in terms of the Public Finance Management Act, he is in breach of his duty to act lawfully under section 68 of the Constitution. Any purported issuance of bond notes by the Governor  in terms of the Public Finance Management Act would be, in my respectful view, invalid on this simple basis.

“Bond notes” are not “bonds” as envisaged by the Public Finance Management Act

Mr Nyambirai loosely contends that “a bond note falls squarely within the definition of a bond” under section 2 of the Public Finance Management Act. In so doing, he unduly (with respect) conflates the concept of a bond issued by the Minister of Finance in terms of section 54(3)(a) of the Public Finance Management Act and the “bond notes” which the Governor has in mind – the fictitious money we will have to use in daily transactions in place of real money.

I am of the respectful view that “bond notes” as envisaged by the Governor are not the same as “bonds” as defined under section 2 of the Public Finance Management Act. As stated above, the law in any event would not permit this: section 54(3)(a) of the Public Finance Management Act reserves the power to issue bonds for the Minister, not the Governor. The Public Finance Management Act does not define a “bond note”. Section 2 of the Public Finance Management Act only defines a “bond”. A bond is defined as “a document issued in pursuance of Part VI acknowledging a debt and binding the State to pay a specified sum at a stated time or on special conditions, and includes a debenture or other form of certificate of indebtedness.” The definition of one cannot extend to the other, in the same way that the definition of “ice” cannot be conflated with the definition of “ice cream”.

Section 54 of the Public Finance Management Act which is the section which Mr Nyambirai argues forms a legal basis for bond notes could not have been the section relied upon by the Governor because this section relates to the manner of raising State loans. The Governor has not purported in his press statement to be raising a state loan. His motives for issuing bank notes are part of a cocktail of measures meant to deal with cash shortages while, apparently, stabilising and stimulating the economy.

Particularly, section 54(3) of the Public Finance Management Act provides that the Minister may borrow by way of the issue of bonds. This means that the bond would be a form of debt security – hence why it is, according to the definition under section 2 of the Public Finance Management Act, “a document acknowledging a debt”, a government debt. It would, among other requirements, have to be time bound and binds the State to pay back a specified sum at a stated time.

Let us try to apply the definition of a “bond” under section 2 of the Public Finance Management Act to be applied to the “bond note” scenario proposed by the Governor. If we assume that the “bond note”, is (according to the Nyambirai argument) an acknowledgment of debt, does this mean that once in circulation it is proof that the Government owes the holder the sum written on the face of it? If we are to be true to the definition, what is the stated period after which we can get the value of the bond? Does it mean that the government owes us US dollars which we will eventually get back? If so, when? If the measure is thus time bound, does it mean we will all eventually get our money back? If so – how is the problem of capital flight related to as the key basis for the measure ultimately resolved? It clearly won’t be because, after the time is up, we should get our money back, leaving the economy at square one. If this is the basis relied upon by the Governor, (which I doubt for all the reasons I have stated, with respect) it does not pass the constitutional test of irrationality and would also be a breach of section 68 of the Constitution.

There is also the added problem that the President has not authorised the Minister to borrow from anyone – a peremptory requirement under section 52(1) of the Public Finance Management Act. It is no answer as opined by My Nyambirai that he is likely to do so – this is a peremptory procedure that should be followed. If not followed, it invalidates the entire scheme. It has to be borne in mind as well that in order to borrow from a person (in this case the public who hold the USD that would be acknowledged in the bonds), one requires their consent. A lender, even to the government, has to agree to lend the government money before the government can borrow the money from one and issue one with a bond to acknowledge and confirm its indebtedness. One has to know when one will get their (real) money back.

If the “borrowing” for the purposes of Part VI was a loan from Afreximbank – then Afreximbank and not the innocent public would receive the bonds. Yet this is not what is planned to happen. All the scenarios I paint here confirm that the application of the definition of “bond” under the Public Finance Management Act as a possible legal basis for the Governor’s plans is a huge stretch which is not borne out by the provisions of the Act and the conduct of the Governor.

My view is that a reading of the Governor’s press statement shows that the Governor does not intend to issue bonds in accordance with section 2 of the Public Finance Management Act (which he in any event does not have the power to do) but he intends to inject into the market a form of fictitious money which would operate as a currency (though not in fact currency). Support for this view is found in paragraph 13 of the press statement where the Governor states that the bond notes “shall continue to operate alongside other currencies within the multi-currency system and at par with the USD”. A real bond under section 2 of the Public Finance Management Act cannot be forced upon a service provider or used in a supermarket – because all it does is show that someone, the Government, owes you money. It cannot satisfactorily replace money as a means of value exchange.

The Governor’s clear message is – treat the bond notes as money, like you do other currencies in circulation. No time limit is set. We cannot assume one will be set. It is not an acknowledgment of state indebtedness to one – it is a money substitute with no basis at law. I therefore remain of the view that the proposed introduction of “bond notes” is unlawlful, unreasonable and both substantively and procedurally fair in breach of section 68 of the Constitution.

Do not be fooled: Bond notes are exactly like bond coins

Mr Nyambirai states that bond notes cannot be open-ended like bond coins are. His argument in this regard is possibly informed by the fact that there appears to be no legal basis upon which bond coins have been created by the Governor, never mind some of their suggested economic merits.

The Governor does not mince his words. At paragraph 13 of his press statement states in no uncertain terms that the bond notes are “an extension of the current family of bond coins.” It follows that the bond coins and the “bond notes” to come are part of the same unlawful construct, as a matter of law. The same illegalities that afflict the bond coins, in particular their open endedness, the fact that they cannot be redeemed for real money after a particular period for real money, the fact that they are not in any way an acknowledgment of government indebtedness – all in breach of Part VI of the Public Finance Management Act – afflict the bond notes. I say this without accepting that the Public Finance Management Act in any way enables any part of the Governor’s conduct in this regard. I do not see any law that does. By his own admission, the Governor is not creating anything new – it is not a new fancy bond. He is just extending the bond coin regime to paper money, which signifies as I have opined before, an incremental return to the Zimbabwe dollar, regrettably.

Is the Afreximbank “facility” lawful?

Mr Nyambirai, in seeking a legal basis for the Governor’s conduct, further places reliance on section 7(1)(n) of the Reserve Bank Act which empowers the Reserve Bank to borrow money from a financial institution – an important caveat is that such money must be borrowed on behalf of the State and not on the Reserve Bank’s own behalf. It would appear that the Afreximbank facility already falls foul of this requirement because according to paragraph 13 of the press statement, “the Reserve Bank (not the Reserve Bank acting on behalf of the State) has established a USD200 million foreign exchange and import incentive facility which is supported by the African Export-Import Bank”. There is nothing in this statement that even mildly suggests that the Bank entered into this agreement on behalf of the State and not on its own behalf. Mr Nyambirai makes an (with respect) unsubstantiated assertion that he “assumes” that the facility will be concluded on behalf of the State. He further makes it clear that he assumes that the Governor is not entering the territory of quasi-fiscal activity. The basis of his assumptions is unclear – there being no evidence that the facility is taken on behalf of the State and that the Governor is not purporting to exercise powers he does not have.

When an administrative authority has a constitutional obligation to act lawfully, as citizens we cannot assume that he or she has done so. The administrative authority, in this case the Governor, is obliged to show that he has acted lawfully. The public is entitled to be satisfied of the lawfulness of any proposed conduct.

More fundamentally, there is confusion as to whether this unspecified ‘facility’ constitutes a loan from Afreximbank or whether the Reserve Bank has deposited this amount with Afreximbank who have “backed” the issuance of $200 million against such a deposit. Or is it the case that the Reserve Bank has the money but is keeping it safely somewhere to avert capital flight? The terms of the Afreximbank facility have to be disclosed to the public in the interests of public accountability. Section 62 of the Constitution enshrines the public’s right to this information. Where constitutional rights and administrative justice are concerned, we cannot be content to operate on the basis of an assumption. What happens if we are wrong on this assumption? Why should the Reserve Bank hide the information if everything is above board? The question of the precise terms of the Afreximbank facility agreement is not a sterile debate about form – if the facility is not shown to be a ‘borrowing’, the facility does not comply with section 7(1)(n) of the Reserve Bank Act and would on that further basis be unlawful and thus unconstitutional.

Conclusion

There can be no doubt that the Governor intends to purport to issue the bond notes so that they operate as a medium of exchange, a unit of accounting, and a store of value – a form of money that we are all meant to agree to accept it in making all manner of transactions. This, in my respectful view, is not a government bond in the Public Finance Management Act sense. I am yet to find a law that would permit such a course. To the extent that none exists, the Governor’s conduct offends the public’s constitutional right to administrative conduct that is lawful, fair and reasonable.

(C) Fadzayi Mahere. Not to be reproduced without the author’s prior permission.

(I must thank Mr Nyambirai for giving me that nagging legal tickle – an interesting bit of law to think about.)

A legal opinion on Mangudya’s decision to introduce “bond notes”

bond note

Mangudya “creates his own version of the US Dollar”

On the 4th of May 2016, the Reserve Bank Governor of Zimbabwe, Dr John Mangudya issued a press statement wherein he indicated that “the Reserve Bank has established a USD200 million foreign exchange and export incentive facility which is supported by the African Export-Import Bank (Afreximbank) to provide cushion on the high demand for foreign exchange” in the country. The facility would be implemented through the medium of Zimbabwe “bond notes” in denominations of $2, $5, $10 and $20 and would be introduced into the economy in two months’ time. The bond notes are set to operate as an extension of the current family of bond coins which were introduced in December 2014 to address the challenge of obtaining small change in daily transactions. The Reserve Bank Governor further introduced a limit on daily cash withdrawals with the public now only able to withdraw a maximum of $1 000, €1 000 and R20 000 from their accounts, with immediate effect. He stated that the bond notes shall continue to operate alongside other currencies and at par to the dollar. Dr Mangudya  further announced that, with effect from today, 40 percent of all new US dollar receipts will be converted to rand, “in order to restore and promote the wide usage of currencies in the multicurrency basket.”

Following this press statement, the media has been awash with possible economic justifications for the decisions made by Dr Mangudya. There has also been a public outcry with most fearing a return to the hyperinflationary chaos that characterized the 2007 and 2008 era in Zimbabwe. However, missing in the discourse is a consideration of the legality of the announcement and proposed measures by the Governor.

I wish therefore to offer my legal perspective here.

Applicable Law

The office of the Governor of the Reserve Bank of Zimbabwe is established in terms of section 14(1) of the Reserve Bank of Zimbabwe Act [Chapter 22:15]. In terms of section 68 of the Constitution, the supreme law of the land, every (Zimbabwean) person has a right to [administrative] conduct by the Reserve Bank Governor that is inter alia lawful, reasonable, proportionate and both substantively and procedurally fair. His constitutional duty in this regard is echoed in section 3(1) of the Administrative Justice Act [Chapter 10:28]. According to section 3(1) of the Administrative Justice Act, “an administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall act lawfully, reasonably and in a fair manner.” The term “administrative authority” is defined in section 2 of the Administrative Justice Act to include any person authorised by any enactment to exercise or perform any administrative power or duty. The Reserve Bank Governor, being the officer responsible for the day-to-day management, control, administration, operation and direction of the Bank in terms of section 19 of the Reserve Bank of Zimbabwe Act, falls neatly within the definition of an “administrative authority”. The Governor is therefore subject to the provisions of section 68 of the Constitution and section 3 of the Administrative Justice Act.

Applying the above legal provisions to the contents of the Governor’s press statement, I am of the respectful view that his decisions and conduct offend our constitutional right to administrative justice.

Lawfulness

Section 68 of the Constitution as read with section 3 of the Administrative Justice Act require the Governor to act in a lawful manner. It is established under our law that all administrative powers, including those of the Governor, must derive from statute and the nature and extent of those powers are to be found in the statutory provisions granting these powers.  Simply stated, this means that there has to be a legal basis, in Statute or delegated legislation for any decision that the Governor makes. The question to be asked is: what law authorizes the Governor to create “bond notes”, which bond notes then replace lawfully deposited US dollars.

It is worth highlighting that the term “bond note” is not defined anywhere in the Reserve Bank Act or the Banking Act [Chapter 24:20]. “Bond note” is not a term of conventional economics but an invention on the part of the Governor. It is clear that the law does not empower the Governor to create this, with respect, fictitious money.

Incidentally, the Reserve Bank Act does carefully delineate what powers the Reserve Bank has in instances where there is a shortage of currency of any denomination. In particular, section 42B of the Reserve Bank Act authorises the issuance of “Reserve Bank vouchers”, not “bond notes” where the Reserve bank is of the opinion that there is a shortage of currency of any denomination to pay civil servants or employees of the State. The shortage must be shown to require urgent action in the interests of public order or the economic interests of the State.

What is clear from this provision is that the Governor does not have a blanket power to create any document he thinks up to replace properly introduced currency. He also does not have the power to create such an alternative medium of exchange except where the shortage is specifically in respect of the payment of civil servants and where it is shown to be a public order emergency. The justification given by the Governor for the creation of bond notes is, therefore, inconsistent with section 42B of the Reserve Bank Act. The Governor’s justification for the curious move  relates to “foreign exchange stablisation” and an unsatisfactory attemot to ease the cash crisis. Respectfully, the law does not permit him to create alternative “money” for these purposes. It is clear that the law does not empower the Governor to make any plan he deems necessary for the purposes of resolving a cash crisis.

It can therefore be argued with great force that the conduct of the Governor in creating bond notes does not have the force of law and is therefore unlawful contrary to the requirements of section 68 of the Constitution and section 3 of the Administrative Justice Act. His conduct in taking away depositors’ hard earned dollars also arguably breaches their right to property and their right to use and transfer their property as enshrined in section 71 of the Constitution.

Substantive and procedural fairness

Section 68 of the Constitution also requires the conduct of the Governor to be “substantively and procedurally fair”. I am of the respectful view that the policies announced by the Governor are not substantively and procedurally fair to the citizenry. To illustrate the point, it cannot be fair to take money that a person has banked in US dollars away and give that person “bond notes” which the Governor admits are not currency. If they are not currency, what are they? What use are they to the business community if they cannot be used to import goods? In terms of what law or economic principle has the Governor decided that one bond note will be equivalent to one US dollar? It is basic that a person cannot arrogate to himself the power to decide the US dollar value of a piece of paper and impose it as a medium of exchange and transaction. Such an approach offends basic economics and all known law and procedure.

With respect, it is no answer as is suggested in the press statement, to contend that the bond notes are guaranteed by an “Afreximbank facility”. What is this facility? What law authorizes this approach? What does the “guarantee” mean? What are the terms of the Reserve Bank’s agreement with Afreximbank? Is a person entitled, if the guarantee is a true suretyship as envisaged by the law, to approach this bank with the bond notes and redeem in their place United States dollars? If the answer is no, then there can be no substantive fairness in the decision. It appears that the Afreximbank explanation is a smokescreen to lull the country into a false sense of security when what we have for all intents and purposes is a re-introduction of the Zimbabwe dollar, in circumstances where the economy is unable to shoulder such a burden.

Additionally, section 3 of the Administrative Justice Act demands that an administrative authority must give any person whose rights, interests or legitimate expectations may be affected by his decision “adequate notice of the nature and purpose of the proposed action”. In this regard, it could be argued that in imposing cash limits on less than 24 hours notice, the Governor acted in breach of his obligation to act fairly. Procedural fairness, in particular the audi alteram partem (hear the other side) principle enjoins the Governor to consult all stakeholders widely and to allow affected persons an opportunity to be heard before making a decision concerning their property. It follows that the Governor has very likely acted in breach of his constitutional obligation to act fairly. It is no answer for the Governor to say that he had to ignore the obligation to give fair notice to avoid immediate cash withdrawals. The obligations imposed upon an administrative authority by the Constitution are peremptory anf cannot be derogated from.

Reasonableness

The Governor’s decision has to pass the test of rationality. It can be argued that the decision of the Governor to introduce bond notes is not reasonable in view of the fact that the fundamentals that have led to the cash crisis, i.e. diminished productivity and our weak GDP have not at all been addressed. No sensible policy has been put in place to improve our exports and thus reduce the trade deficit. No thought has been given to the prospect of a black market developing in order to circumvent the stringent policies. If the concern is that certain foreigners e.g. the Nigerians and the Chinese are mopping up forex and externalising it, there has been no explanation as to why ordinary citizens have to be punished for this. The decision may also be said to be disproportionate in view of the corresponding harm that the new policies will create.

In solving one problem, it can be said that the Governor has created several more. All that the press statement addresses are the symptoms of the country’s economic problems. The fundamentals, e.g. the need to improve productivity, the need to introduce land tenure and the need to make Zimbabwe an attractive investment destination have all been ignored. the Governor complains of a trade deficit created by foreigners but ignores the fact that just three weeks ago the Minister of Indigenization was on the verge of closing all banks and did everything he could to scare away remaining investors. These are fundamental problems that cannot be resolved through the creation of monopoly money. The root causes underpinning the maladministration ought to be addressed. A painkiller will never effectively cure a bone fracture, which is what the conduct of the Governor respectfully amounts to.

Conclusion

One cannot escape the conclusion that the press statement points to an incremental approach geared towards bringing back the Zimbabwe Dollar, a prospect which many will agree is too ghastly to contemplate. It is hoped that further consultation on the issue, and an examination of whether there is a legal basis for the decision will lead to a rethink of the decision. The essence of administrative law is to check and balance executive power. The law ought to be invoked should the need arise in order to prevent an unlawful course of conduct. Failure to do so may result in an abuse of the Governor’s powers in breach of our Constitutional right to administrative conduct that is lawful, fair and reasonable.

(C) Fadzayi Mahere. Not to be reproduced without the author’s prior permission.

Of Chris Gayle, sports journalism and the sideline Barbie syndrome

gayle

It is important to acknowledge the advances that have been made in the acceptance of women in sports journalism. It is reported that it has been about forty years since the first female reporter was allowed into a professional sports locker room Today, most media houses have multiple female reporters and anchors on their roster. It is fair to say that there have been cracks in the sports journalism glass ceiling: In 1981, Rhonda Glenn was the first woman to anchor ESPN’s famous SportsCenter franchise. Lesley Visser, although the only woman there, was enshrined in the Pro Football Hall of Fame. Progress?

Ish.

Notwithstanding these important gains, women are still overwhelmingly in the minority in this male dominated field (no pun intended). Although women are now generally allowed to conduct locker room interviews, frequent the clubhouse and write convincingly on sport, sexism still rears its ugly head often enough to warrant women remaining on their guard. Obviously, this is not a call to manufacture outrage, become militant or search for controversy. However, it does mean that women must be willing and able to speak out against inappropriate and sexist conduct when necessary.

Erin Andrews, an American sportscaster, has been vocal about the gender specific challenges and sexism women covering men’s sports universally face during their careers. Andrews became a sports journalist at approximately the time when the sports blogs started. In an interview conducted a couple of years ago, she remarked that she had been baptized into a world where the sports blogs dubbed her the “Sideline Barbie” or the “Sideline Princess.” Sexist double entendre?

Yes.

Writing for The Daily Beast about two years ago, Isobel Markham critiqued sport’s journalism’s ‘beauty curse’ and highlighted that for sports reporters, sexist comments about their looks – and ‘plum jobs for pretty girls’ – are as common as timeouts. It is no coincidence that women in sports journalism are predominantly dolled up ‘Barbie-style’, with focus often diverted from the content of their work to their physical appearance.

In addition to the demands of interviewing athletes in male-dominated sports, Andrews had to contend with male bloggers critiquing what she was wearing. “The sidelines aren’t as glamorous as everyone thinks” she said. “When halftime happens, you do the interview, and then you’ve got to grab a coach or a player. You don’t even have time to go to the bathroom. So I’m having a hot dog on the sideline, and people are taking photos and submitting them to the sports blogs. And it’s like, ‘How does she look eating a hot dog?’ It wasn’t about my reporting, it was, ‘What is she wearing, who is she dating?'”

Andrews is not alone. In 2010, New York Jets owner Woody Johnson had to apologize personally to TV Azteca reporter Inés Sainz after his players and staff directed lewd comments toward her in the locker room. Similarly, a Bills fan looked up a photograph of Jennifer Gish online after she had written a piece in the sports column for the Albany Times-Union back in September 2011. Instead of responding to the substance of her article as would have been expected, he scathingly wrote “You may want to consider plastic surgery or something, you are one god awful ugly looking female.”

Unacceptable? Yes. Uncommon? No.

When a professional woman goes about her daily work, she has every right to be taken seriously. The focus ought not to be her looks but her ability. Whether in the courtroom, the boardroom, the hospital or the pitch, she must be shown professional respect.

Imagine if in the middle of a political interview with a female journalist on an issue of national importance, Barack Obama ignored the question and asked the journalist out for a drink after remarking that she had beautiful eyes, on air. The world would be outraged. Obama would be accused of inappropriate, sexist conduct.

Imagine if during a board meeting, a male director ignored a question put to him by a fellow female director and instead asked the co-director out for a drink after remarking that she had beautiful eyes. He would be accused of inappropriate, sexist conduct.

Imagine if a female lawyer was delivering a court address and mid-sentence her male opponent ignored her submission and instead asked the female lawyer out for a drink after remarking that she had beautiful eyes. He would be accused of inappropriate, sexist conduct.

Rest assured, none of the men in any of the above scenarios would have been able to get away with calling the comments ‘a simple joke.’

I come now to Chris Gayle.

After his innings during a Twenty20 Melbourne Renegades match earlier this week, reputed West Indies cricketer  Chris Gayle was approached by Mel McLaughlin, a journalist for Australian broadcaster Network Ten for an interview. Gayle ignored McLaughlin’s questions about the match and chose instead to comment about her eyes, ask her out for a drink say, “Don’t blush, baby.”

McLaughlin, visibly uncomfortable, opted to continue with the interview. Upon its conclusion, she walked away as he attempted to touch her. McLaughlin later described Gayle’s conduct as “disappointing”. She went on to say, “I don’t really want to be the subject of such conversations, I like just going about my business and doing my job.” She said female sports presenters “want equality, we always want equality”.

The unacceptable and sexist nature of Gayle’s conduct ought to be immediately clear. Most regrettably, a strong reaction by viewers and certain commentators has been that ‘it was evidently a joke.’ Against the context of sexism against women in sports journalism set out above, of which Gayle would have been no doubt aware, his behaviour is nothing less than sexist and deplorable. It is improper to ignore the questions asked and make a pass on a woman on live television as she is conducting an interview about the game. It’s akin to saying, ‘oh shut up pretty face. I won’t talk sport with you but I will buy you a drink. Talking about the game is too technical let me concentrate rather on your eyes.’

If he was genuine about his intentions with her (which is doubtful given his reported marital status – a discussion for another day), then he ought to have been respectful enough to respond seriously to her questions, as he would have done a male interviewer, and reserved the approach for an opportune moment off-air.

Gayle would not have been able to get away with such conduct in the courtroom or the boardroom. It should not be tolerated on the sidelines of a cricket pitch: the location of sexism does not alter its nature. His explanation that it was a joke or that it was blown out of proportion would not be entertained in other professional settings. In the same vein, McLaughlin should not be made to feel as though speaking out against Gayle’s conduct during a sideline interview of a cricket pitch is an overreaction.

Society cannot accept that it was just ‘a joke.’ If anything, his conduct perpetuates the sideline Barbie syndrome which focuses on the beauty of a female sports journalist at the expense of her professional ability – and insists that she remains on the fringes of this male-dominated industry.

Forget quotas — a change in attitude is the ticket to the top for women judges in Zimbabwe

judges

In what is viewed by most citizens of Zimbabwe as a historic step, public interviews for the selection of Supreme Court judges were held in Harare yesterday. Of the ten candidates, four were women. Two of the women candidates failed to differentiate between a court action and a court application, an elementary aspect of Civil Procedure in Zimbabwean law, much like the distinction between debiting and crediting in Accounting. Their responses to the effect that the question was “too technical” and that they would “read up on it when elevated” were the cause of much hilarity for the gallery, which was mostly composed of lawyers, law students and journalists.

Yet, for any woman lawyer sat in the room, the reaction was more intricate – a melange of surprise, anger, embarrassment and shame.

It is accepted that the fight for gender equality in the legal profession in Zimbabwe – and throughout the world – is ongoing and vicious. This is not assisted by the fact that, until 1982, women in Zimbabwe were considered perpetual minors who lacked legal and contractual capacity. It is not surprising therefore that. at independence in 1980, there were no female judges in the High Court or the Supreme Court of Zimbabwe. The Supreme Court building was set up to house three male Justices only and had no facilities for female justices. There has never been a female Chief Justice or Deputy Chief Justice in Zimbabwe, nor has there ever been a female silk. To date, no woman has ever been appointed to the post of Attorney-General. Zimbabwe has never appointed a female Minister of Justice.

The injustice of this state of affairs is self-evident. There has to be a problem with a system that permits only male lawyers to be promoted to the top legal posts in this jurisdiction. At the same time, being a woman – in and of itself – does not not equip one with a sound legal mind. Confidence, intellectual and analytical ability, strong written and oratory skills, charm and integrity do.

Against this backdrop, the issue concerning how to achieve female representation in the judiciary in Zimbabwe without compromising on quality remains a vexed question. (This is obviously not to suggest that the women currently on the bench in Zimbabwe are of inferior quality – the record of several women jurists in Zimbabwe speaks for itself.) The Zimbabwean solution to ensure female judicial representation has been to implement a quota system. In terms of section 184 of the Constitution of Zimbabwe, “appointments to the judiciary must reflect broadly the diversity and gender composition of Zimbabwe.” The intention of the legislature in enacting this provision is clear: quotas are the quickest way to ensure women are elevated to the bench. Quotas can remove some of the structural barriers that prevent women from being appointed as judges, so the argument goes.

Yet, quite unwittingly, installing a quota system for judicial appointments is akin to affixing a band-aid to a fractured wound: various underlying problems remain.

Most importantly, an unfair impression is created that the women who have been elevated to judicial posts are there merely because they are women. Quotas in general are offensive and create the impression that, unless a special dispensation is created for women, we cannot succeed. Women who are elevated to the bench are thus perceived to be substandard, incompetent, elevated only due to an accident of biology. Additionally, women elevated through quotas are seen as “token”, may generally be less respected and will have less influence. Quotas also set women against each other, competing for a certain number of “women’s seats”, which might destroy co-operation and unity. Equally, it can be argued with great force that quotas distort the idea of representation because they create the false impression that only women can protect the rights and interests of women. The quota system also implies that women are to confine themselves to branches of law where there the issue of gender is relevant such as family law and the law of inheritance, to the exclusion of other branches of law such as the law of banking and negotiable instruments, tax law, insurance law and the law of insolvency. With so much emphasis on gender quotas in the new constitution and the current government, women are still, in some cases, only ‘getting’ something because of their gender. Unfortunately, even to this day, if a woman gets elevated to the bench, it would still be questioned whether she was actually the best candidate.

There is only one answer: one must be, first and foremost, a judge, with all the poise, competence and disposition that comes with the role – not merely a woman holding judicial office. Those who push for quotas for women don’t understand that the jurisprudential x-factor and internalized principles are what make outstanding judges, male or female. Our attitude and approach in this regard has to change. The capabilities of junior women lawyers must be nurtured from an early stage. Having more and more judges, who so happen to be women, will not transform the legal landscape.

One cannot ride affirmative action, identity politics or third-wave feminism to reach the legal hall of fame.

There, I said it.