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.

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“Bond notes” and the law: A further thought

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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.

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

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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.

Of success and stigma: The dilemma of the African alpha female

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Thirty years ago, the notion of an African alpha female might have been unfathomable. Africa had generally done very little to overcome the traditional view of a woman’s role in society. In many African states, women were regarded as chattels to be inherited. They were given no formal education as their primary purpose in life was to be given out in marriage. Women, despite their age were considered to be forever under the control of either their husband or male relatives. Women and girls could not inherit or own property nor could they participate fully in public life or any decision-making within their immediate community. They had no right over the children they bore and were commonly the victims of domestic violence.

Today, with varying degrees of success, African countries have overcome the notion that a woman is a perpetual minor, with no capacity to make any decisions of her own. A number of superficial attempts have been made to project an image of gender equality through, for instance, forced quotas for female representation in Parliament, an appearance of access to education and the promulgation of anti-domestic violence legislation. More African women have made it to Oxbridge and Ivy League universities. More women are becoming law, medicine, architecture, engineering and accounting professionals. More women are employed in all sectors of the economy. We even have the odd African female president. Notwithstanding these apparent gains, huge remnants of Africa’s discriminatory past continue to haunt the modern African woman, worse so if she is an alpha female.

To illustrate the point, I take the example of the modern, black, Zimbabwean alpha female. She is well-educated, financially secure and intelligent. The usual charge of a gold-digger waiting to be rescued by an upwardly mobile man simply does not apply to her. She is more than able to fund her taste for the finer things in life. Due to her fierce work ethic ingrained in her from a very early age, she is fairly accomplished. Rising steadily through the ranks of her career ladder, she has all the hallmarks of a success story waiting to happen. She is the kick-ass female who gets things done.

However, she, at twenty-seven, is unmarried. [Insert loud gasps, looks of disdain and feelings of societal pity here.]

One of the biggest dilemmas that confronts her is that her parents will not let her move out of home. Apparently, for a woman to live alone is ‘taboo’ and emblematic of loose morals – “hazina hunhu”, so they say. The real explanation for the reluctance of Zimbabweans to allow a right-thinking, financially independent, adult woman to move out of home lies in the hangover from traditional African culture highlighted above: according to the precepts of African tradition, an African woman is a perpetual minor. Throughout her life, she is required to fall under the guardianship of her father until she is married. Upon marriage, her husband takes up the role of guardian. Curiously, African culture does not appear to accommodate that middle-of-the-road situation where a woman is no longer dependent on her father for her livelihood but has not found an appropriate suitor (should she be minded to do so). Society frowns upon her for being alone.

The difficulties surrounding such an approach are myriad. At twenty-seven, an African woman has the maturity of a mother who can run an entire household. Focusing on one’s career often means subordinating the need to get married for a time – either to find the right kind of African man (the type which is self-assured but won’t feel threatened by female success) or to ensure all career objectives are met by the appointed time the alpha female has set for herself. Constantly and from a young age, the African girl is told – by her parents, mentors and society – how boys are bad and that she should focus instead on school. Even upon completing high school, she is told that having a boyfriend is somewhat shameful. Yet upon reaching twenty-five, there is an inexplicable, unspoken 180 degree shift in attitude. She has to get married – and NOW. Today, if possible but by the end of this year will also do. [Insert  all manner of expletives here.]

To the African alpha female, such a proposition is contradictory and patently nonsensical: her career has taken off, she wants to travel and see the world, world domination has become her focus in life and she realizes that there is more to life than becoming little more than a domestic appendage to a man’s life. Her bucket list now includes getting a book published, giving a speech to over 10,000 people, parasailing, swimming under a waterfall, learning to play a musical instrument and touring Prague and Paris.

And all society can do is ask  – why are you not married? [Snore.]

Her dilemma does not end there.

Feminism is a dirty word in Africa: it conjures up notions of women who disrespect the patriarchy. You know, the type of woman who will report her husband to the police for domestic violence instead of apologizing for what ‘she did’ to prompt the abuse and undertaking to be more submissive in the future. [Sigh] As a general principle, the traditional African male prefers to be treated as a demi-god, does not like to be questioned and views a woman as part of his accumulated wealth – after all, he paid a healthy quantum of lobola (bride price) for this acquisition. For reasons that are self-evident, this mindset is illogical and unacceptable to the African alpha female. She is not a domestic servant, though she may love to cook and clean on her own terms. She knows better than to take instructions on how to live her life. She chooses not to act without first interrogating the merits of such action. In short, she is looking for a partner who edifies and complements her not a master to dominate her. She has no hang ups about a man taking the lead but he must be competent to do so. Unfortunately for the African alpha female, the man described here is an endangered species in Africa.

Too old to be unmarried but not old enough to move out of home, she faces the grand dilemma – should she give in to the pressure to get married or should she suffer the stigma of remaining the sad, unattached woman for whom African society has no respect?

Sadly, many African women do give in to the pressure to get married – all at the wrong time and for the wrong reasons – on everyone else’s terms but their own. They sacrifice their dreams and ambitions to appease society. Outmoded African attitudes towards women condition the alpha female out of the African professional woman, steering her instead to a strictly nurturing role rather than world domination.

Surely the time has come however to accept that marriage, in and of itself, is not an achievement or the route every woman must be forced to take? A woman deserves respect in her own right – and this should never depend on whether or not lobola (itself a sexist practice) has been paid for her.

“If you don’t design your own life plan, chances are you’ll fall into someone else’s. And guess what they might have planned for you? Not much.” Jim Rohn

In defence of Justice Hungwe and the Rule of Law in Zimbabwe

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Election season is upon us once again. The last election year, 2008, will forever be etched in the memory of many as the most troubled year in Zimbabwe since independence from colonial rule was achieved in 1980. The election conducted in 2008 was bloody and violent, compounded of course by hyperinflation and the crippled state of the economy.  Today, food shortages are a thing of the past. Hyperinflation is no longer an issue thanks to dollarization. The Government of National Unity has been fraught with problems, but compared to the days when bread was a luxury, the situation has somewhat normalised. Most Zimbabweans would like to get on with their lives, put food on their tables, educate their children and ignore the politics. But this is becoming increasingly difficult to do. The events of the last couple of weeks are enough to remind one that all is not well. The rule of law is under renewed threat. In particular, the independence of the judiciary has been severely compromised and a clear message is being communicated to judges to tow the correct political line.

At its core, the independence of the judiciary dictates that judges should not be subject to improper influence from the other branches of government, particularly the executive. This is a basic requirement of the separation of powers doctrine which is central to the rule of law. Unless judges are allowed to perform their duties without fear or favour, the public will lose the confidence of the legal system. In turn, the internationally recognized right to protection of the law will be unduly compromised. It is against this background that the current onslaught against Justice Charles Hungwe, a judge of the High Court of Zimbabwe, should be understood.

It has been reported widely in the State media that Justice Hungwe has committed acts of misconduct. What it is immediately clear to any person who has a basic understanding of the law in Zimbabwe is that the allegations being mounted by Justice Hungwe’s self-proclaimed prosecutors are frivolous and vexatious.

The main charge that Justice Hungwe faces according to media reports is that he convened a heard an urgent chamber application brought on behalf of a legal practitioner, Beatrice Mtetwa, to seek her immediate release. It was argued on her behalf that she had been detained while conducting her lawful duties on behalf of the Office of the Prime Minister whose officials were being subjected to what she contended was an unlawful search. Section 17 of the current Constitution of Zimbabwe protects citizens from arbitrary search and entry. Quite rightly, therefore,  Ms Mtetwa demanded a search warrant. She was immediately arrested and charged with “obstructing the course of justice.” These facts show that the continued detention of Ms Mtetwa was unjustified. Rule 244 of the High Court Rules of Zimbabwe permits litigants to bring a matter on an urgent basis.

It is established under our law that degrees of urgency may vary. At the outer edge of the spectrum are matters which require such urgent determination that they can be heard outside ordinary court hours and in locations other than the High Court, depending upon the exigency of the circumstances. It is on this basis that the urgent chamber application was heard by Justice Hungwe late on the night Ms Mtetwa was arrested. In addition, section 23 of the Constitution enshrines the right to personal liberty – a right that cannot be lightly interfered with without good cause. Upon hearing the submissions of counsel, Justice Hungwe was persuaded that the continued detention of Ms Mtweta was unjustified and ordered her release. The matter was indeed heard ex parte, without notice to the State or police officers. Again, this measure is permissible under our law. Rule 242(1)(c) authorizes a judge to hear an urgent application ex parte if it can be shown that there is a risk of perverse conduct on the part of the persons who might otherwise be entitled to be served with the application. Such a risk was demonstrably evident in Ms Mtetwa’s case where the police had unlawfully detained her. There was a real risk and possibility that the police would delay the hearing of the application or otherwise frustrate efforts for her to be released. This risk was proven to be real when the police refused to comply with the court order upon being served with it, insisting instead that she be hauled before a criminal court.

The above summary of the law shows that Justice Hungwe’s discretion was properly exercised. However, to the extent that the State or representative of the Attorney-General’s Office was aggrieved by the decision, it was open to them to appeal against it on an urgent basis or anticipate the return date. The allegation that the judge might have misdirected himself is an opinion anyone is entitled to hold. However, a misdirection by a judge cannot ipso facto amount to misconduct. If the approach that is being advocated in persecution of Justice Hungwe were to be followed to its logical conclusion, every High Court matter in respect of which an appeal succeeded in the Supreme Court would be a proper case for misconduct.  The result would be absurd.

The same arguments apply to the allegation that the judge issued a search warrant which various elements of the Executive were not happy with. Of course, such elements were entitled to be aggrieved. They have under the Constitution a right to protection of the law which means that they can enforce whatever right they perceived to have been infringed. But they must do so procedurally: they can seek the review of the judge’s decision or appeal against it. An apparently baseless accusation has been made against the same judge, contending that he ‘improperly granted a Notice of Withdrawal’ in a property dispute. The allegation is without merit because it is not for a judge to withdraw a Notice of Withdrawal under the High Court Rules. A Notice of Withdrawal is a pleading. Pleadings can only be filed by litigants or their legal practitioners. Once a matter is withdrawn by a party, the judge is no longer seized with the matter. There is nothing for him to grant. Unless this is a case of bad reporting and a misapprehension of the legal issues involved, it is beyond doubt that this allegation is malicious.

The final word on this matter has to be that judges, being human, do make mistakes. Lawyers and litigants do not always agree on the correctness or propriety a particular legal outcome. However, if our response to perceived misdirections is to harass, defame and otherwise abuse judicial officers, judges will not have the mettle necessary for them to decide matters properly and fairly. It is equally undesirable for judges to be punished for deciding against the political establishment. To do so makes a mockery of the entire judicial system which Zimbabweans are required to have confidence in. It also places judicial officers at the mercy of the politics of the day and undermines the rule of law and general principles of consitutionalism. The latest media reports seem to indicate that Justice Hungwe will be hauled before a tribunal appointed by the President to investigate his “misbehaviour” in accordance with section 87 of the Constitution. If found guilty, the judge will be forced to resign. This will be a severe assault on the independence of the bench and a warning to legal practitioners and litigants that the judicial system has been compromised.

If the rule of law is to remain somewhat intact in this country, this course should be avoided at all costs. Accountability to the rule of law, in its most basic form aims at structuring and placing certain limits on governmental action. Time-tested constitutional mandates of separation of powers, checks and balances, independent constitutional review and an independent judiciary provide the institutional basis for judges to find and articulate laws independently. We cannot afford to sacrifice these most fundamental values at the altar of political expediency.

Zuma, whites and being African: Has our culture gone to the dogs?

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The American dream is often described as the upwardly mobile ideal of having a good home in suburbia with a white picket fence and a dog playing in the garden. The African dream, on the other hand, has evaded any precise description. The reason for this is that Africa is complex. The continent’s uniformity cannot be exaggerated. It is best defined as a fusion of different experiences and diverse peoples. Colonialism, for its own part, threw a spanner into the works of what was originally, authentic African culture.

It is against this background that Jacob Zuma’s remarks, to the effect that Africans are corrupting their culture by copying ‘white’ behaviour, must be considered.

Speaking at a traditional event in the province of Kwazulu-Natal in his first public appearance since being re-elected the president of the African National Congress a week ago, Jacob Zuma controversially asserted that having a pet dog is not African. He further opined that black South Africans who buy a dog, take it for walks and to the vet are “copying” white culture. Mr Zuma’s office attempted to defend the remarks on the grounds that the message of his speech ‘was the need to decolonise the African mind post-liberation’.

The flaws in the South African president’s reasoning ought to be immediately evident: Were dogs brought to Africa by the colonialists? Do black people need to learn from white people that dogs require feeding? And exercise? Or to go to the vet? More importantly, what is African culture? Is it language? Surely not – if you put a Zimbabwean, an Egyptian and a Kenyan in the same room, chances are they will not speak the same language, unless they resort to the colonial fallback, English. Is African culture to do with food? That cannot be: most Zimbabweans would consider a Cameroonian dish consisting of yams and ‘pepe’ tortuous to eat. Likewise, most East Africans would find Zimbabwean food, say sadza nenyama, extremely bland for its lack of their usual oriental melange of spices. One cannot seriously contend that it has to do with dressing…just strolling through Sandton or the Victoria and Alfred Waterfront reveals that the clothes typically sold in South Africa are anything but ‘African’ in any perceived cultural sense. There is no such thing as a homogenous African traditional dress. The same Africans that reject mini-skirts as not being ‘African’ flock to the traditional reed dance in Swaziland to gawk at scantily dressed, topless Swazi girls in the name of – you guessed it – culture! Is polygamy African – let’s not even get started on that one.

And now for the saddest part:

Inherent in Zuma’s comment is the view that white people are not African. And that African culture is completely inconsistent with anything remotely linked to colonialism. Of course, this offends common sense in view of the numerous vestiges of “white culture” that dominate African life, especially in South Africa – the German cars, the Italian suits, the Irish whiskey, Swiss watches and the English language.

And so, to reduce African culture to a discussion on dog ownership is irreverent; and to allege that black people ‘copy’ white culture is desperate. Our culture is so much bigger than that. The mere fact that there is no agreement amongst African people as to whether they like to own dogs or not demonstrates that this aspect of human life (as is the case with most other things people carelessly define as ‘culture’) is too subjective to form the proper basis for what defines African culture. Accordingly, to define culture merely on racial grounds is misplaced. Black Americans and white Americans share the same culture – they are American. The same can be said, to a large extent, about black British people and white British people. This should apply with the same force to being African. A black Zimbabwean may have more in common, from a cultural perspective, with a white Zimbabwean than with a black Nigerian. It’s not to do with kinky hair or straight hair, light skin or dark skin. It is about identity – that unique factor that unites people, and not what divides them.

And so no, you will not be more African if you kick your dog.

Zuma is definitely in the dog house for this one.

Is feminism a disease?

Feminists are often depicted as angry, hairy battle axes – the usual bra-burning mantra. Yet the relevance of feminism in the 21st century cannot be overstated. Feminism is about equality. At its core, feminism is a movement based on the belief that all people – no matter their gender, race, religion, sexual orientation are equal, and deserve to live their lives free from discrimination. One does not have to be one of my favourite authors, Julie Zeilinger, to understand this. I am surprised to find, therefore, that many people, African (read Zimbabwean) men in particular, perceive it to be a disease. How could people oppose a movement that simply wants to ensure women retain their self-respect and are free from abuse?

What made me think this?

A faux post-apocalypse now pervades Harare after the ‘excitement’ surrounding the beating up of Tinopona Katsande by her boyfriend somewhat died down. Initially, it was alleged that he did it because she had refused to assist him with housework. It later emerged that he was ‘punishing’ her for behaving as though she was not taken on a night out earlier that weekend. There is no basis upon which we can prefer one version of events over the other – but that is not the focus of this rant.

I digress further – one might be forgiven for taking the view that unless one is a pretty socialite in Harare, no attention will be paid to the ordinary woman’s experience with domestic violence. The recent example of Ms Katsande was an acute, if useful, reminder of the manner in which women are often treated by their husbands and partners in Zimbabwe. Photos of her swollen face and desecrated weave went viral on the internet. No doubt, the perpetrator of the violence ensured that her usual caramel skin was left black and blue. Indeed, this episode was sad, unfortunate, unforgivable – one can’t run out of negative terms to describe what happened to her. What I grapple with, however, is that Ms Katsande’s experience was mild and unusual in the Zimbabwean context. For example, on the 29th of September, at around 3am, a 33-year-old Harare man allegedly fatally assaulted his wife with a knobkerrie over suspicions of infidelity. Sebastian Satero of plot number 16 Danbury Farm in Marlborough accused his wife, Rennie Jakarasi of having an extra marital affair and a misunderstanding arose. She sustained severe injuries and died on the spot. In a bid to cover up the offence, Satero removed Jakarasi’s blood stained clothes and burnt them together with the knobkerrie. He then fled leaving Jakarasi’s body lying on the ground.

Not many people paid attention to the plight of this woman. It may be the case that Zimbabwean society has come to accept that ill-treatment of women by their male counterparts is acceptable, in the same way that “small houses” (read mistress/illicit second wife – take your pick) have become the norm, in fact, a nigh necessity for the typical Zimbabwean man.

Even on a global level, women make up 70 percent of the world’s 1.3 billion poor and own only one percent of all land in developing countries. One out of every three women worldwide has been beaten, coerced into sex or otherwise abused in her lifetime. An estimated 50 million girls “missing” in India due to female feticide and infanticide (a practice in which parents abort their female fetus or kill their female infant based on the sole fact that she is female in a culture that prefers males). And that’s just scratching the surface.

So the question then becomes, do we still need to fight for women’s rights? Or is feminism a dirty word whose significance belongs to a different era?

As observed by writers like Zeilinger, the impression that the need for feminism was buried right alongside Elizabeth Cady Stanton and Susan B. Anthony – the accepted creators of the original ‘girlmance’ – and that Gloria Steinem and her counterparts resolved any lingering issues in the ’70s, is simply not true. The examples of domestic violence alluded to above are clear evidence that sexism is alive and well, even if it may take a different form from issues like being denied voting rights, the absence of contractual capacity on the part of women and the existence of marital power.

I end where I perhaps should have begun – what is feminism?

“I myself have never been able to find out precisely what feminism is: I only know that people call me a feminist whenever I express sentiments that differentiate me from a doormat.” ~ Rebecca West

If Syria were Zimbabwe, would the armed conflict be over by now?

Are Africans geopolitical pawns that the world can use arbitrarily when it feels the need to purge its conscience and purport to protect humanity? Are Africans the only “savages” that need to be rescued? Are there no atrocities committed outside Africa that ought to attract the interest of the world?

Most fundamentally, if Syria were Zimbabwe, would the conflict be over by now?

International inaction over the Syrian crisis would suggest that all these questions may be answered in the affirmative.

If Syria were Zimbabwe, the conflict would have automatically assumed a different complexion – NATO would have enforced a no-fly zone. The Security Council would have sat immediately to authorise a coalition of the willing to adopt ‘all necessary measures’ to maintain international peace and security in the area, in addition to referring the matter to the International Criminal Court. The International Criminal Court for its part would be working round the clock to put together arrest warrants for alleged perpetrators of violations of international criminal law. It is more than likely that Bashar al-Assad would have been dead by now – US Special Forces, the usual story.

Of course, this is not to suggest that there shouldn’t be accountability for atrocities if they are committed in Zimbabwe, or elsewhere in Africa. They must. However, if international law principles are applied as selectively as they have been over the last decade, do we not run the risk that their legitimacy will be undermined?

To illustrate the point: During times of political unrest over the last ten years in Zimbabwe, the international community has reacted as though a Third World War was imminent. Some have (quite ridiculously) gone as far as to suggest military intervention to resolve the crisis in the country. Yet so far, there have been 15,000 casualties in Syria and we have not seen the usual hypertensive  excitement from the so-called protectors of humanity.  Irrespective of the geopolitical arguments that have been raised to support international inaction in Syria, the argument that Africa has become the test-tube the world uses to try out its ‘save the world’ notions and international law principles is becoming more and more irresistible.

Does international humanitarian law apply to armed conflicts or doesn’t it? Does international criminal law apply to all perpetrators of war crimes and crimes against humanity or doesn’t it? Do we have a Responsibility to Protect humanity from mass atrocities or don’t we?

The answers to these fundamental international law questions ought to be uniform, regardless of whether an armed conflict is taking place in Zimbabwe, Syria or anywhere else in the world. To do otherwise would lend credence to the school of thought that moves that international law is designed as a neo-colonial instrument applicable  to Africans alone.

Like other international lawyers across Africa, I sincerely hope that these all-important humanitarian principles are not mere tools used strategically by the stronger powers to enlighten the Continent many so wrongly perceive to be Dark.

Does the colour pink imprison women? The case of Arundel School

Arundel School was a giant pink bubble in which young girls were taught to be “prim and proper”. Deportment – a term most teenagers go through high school not knowing how to spell, let alone use – was the mark of a true Arundel girl. It symbolised a manner of personal conduct synonymous with Austenesque behaviour: ladylike, well-groomed and intelligent. Pupils were enjoined to cultivate a fierce work ethic and obey a long list of rules – “to prepare one for the real world”, it was suggested. Some of the rules made perfect sense: ‘wear your hat outdoors or else you will potentially expose yourself to too much sun which may lead to skin cancer’. Other rules – ‘thou shall not wear thine jersey in the car park because it doesn’t look good‘, not so much (bearing in mind that the school colours were a jarring and clumsy combination of dark brown and turquoise). Talking too much or too loud was frowned upon. To top it all off, all the school walls were painted pink.

It is no wonder, therefore, that the school was half-affectionately known as the “Pink Prison”- double entendre? Yes.

The use of pink as distinctive of girls can be dated back at least to 1868, in Louisa May Alcott’s Little Women when Laurie used a pink and a blue ribbon to distinguish girl and boy twins respectively. To date, many things pink are associated with women – girls’ toys, girls’ clothes, girls’ bathrooms, girls’ gyms, the list goes on. However, pink as a feminine color is a relatively modern phenomenon. Before the 20th century, it was a male color. It may change again. But right now, pink is female and has a weird effect. According to a study published in the Harvard Business Review, pink triggers a defensive response in most women, particularly when used to convey messages to women about causes which affect them such as breast cancer. And to be fair, nothing makes pink a feminine color except what society has been engineered to think. Jude Stewart calls pink “the most politicized color of our age.” Today, “when we think pink, we think Disney Princess, Barbie and Fifi the poodle.” Pink is pretty. And it is nice. Pink is the term I ascribe to the “good Arundel girl” – obedient, unquestioning, neat, tidy and hardworking. She feeds the stereotype that being sweet, delicate and soft spoken is the ‘ladylike’ thing to do. Pink is safe. Pink won’t rock the boat. Pink is nice.

Yet, it is in being so “nice” that most women imprison themselves. If we teach girls to be pink and propagate this Austenesque behaviour – and stop it at that – are we not teaching girls in a variety of ways that being nice, avoiding conflict, not upsetting others and not challenging the status quo are all part of being a likeable, desirable, successful girl – and one day woman?

The world is changing and the danger is that such young women will enter the real world and discover that, unless one has an inquiring mind, that constantly questions and challenges the status quo, and in addition, vocalizes one’s opinions (with tact and discretion), one cannot get ahead – be it at home, at work or in society at large. Research has found that women – including those who work in senior positions for some of the world’s leading firms – are held back from reaching the very highest levels at work because of the difficulties they find in striking the right tone of language during high pressure meetings, for example. Often this is due to the fact that women are raised to believe that to argue or assert one’s self is not proper.

It is beyond question that Arundel School has produced some of the finest female scholars in Zimbabwe over the last five to six decades – alumni of this fine institution are no strangers to Oxbridge and Ivy League universities and many have fared exceptionally well in various professional disciplines, music, sport and art. Many have become wonderful mothers.

However, we need to move away from the classical approach to bringing up young women. In order to succeed in the boardroom, Parliament or wherever a woman feels called to be, she must be able to speak out against the status quo when the situation calls for her to do so. She must not be held back by the belief that it is not proper to do so. Julie Steinberg writing for the Wall Street Journal contends that, despite their talent, education and hard work, many women simply aren’t chosen for roles that lead to greater success later. Women often don’t have the “intangible skills” needed to gain the attention of higher-ups at the company, says Elena Rand Kaspi, a former consultant to law firm White & Case.

In sum, we need to add a bit more of an edge to the Arundel virtues of grace and knowledge, perhaps fine tune them to the demands of the 21st century.

“Forget conventionalisms; forget what the world thinks of you stepping out of your place; think your best thoughts, speak your best words, work your best works, looking to your own conscience for approval.”

~Susan B. Anthony~

Happy Independence Day Zimbabwe, but are we really free?

Zimbabwe achieved majority rule and internationally recognized independence on the 18th of April 1980, following a long period of colonial rule. Without wanting to sound like a rancid ZBC TV commercial, Independence Day is important for any Zimbabwean as it commemorates the end of the apartheid-in-miniature era which was characterized by racial oppression. It is a day on which any citizen of this great nation ought to be proud – proudly Zimbabwean.

But are we really free?

Human rights violations are fairly rife in Zimbabwe. There is a widespread consensus among human rights organizations that systematic violations of the right to personal freedom and integrity are frequent in Zimbabwe, especially towards suspected members of the political opposition. The violations are perpetrated by government supporters as well as law enforcement agencies, and include assaults, torture, death threats, kidnappings, unlawful arrests and detention. As a young criminal lawyer, I was exposed, as no young lady should, to the horrors of Chikurubi Prison, Matapi Police Station and of course, Harare Remand Prison – which ironically is a few kilometres from where I live. I participated in the trial of Christopher Kuruneri, who had been incarcerated for four years, before being acquitted on charges relating to financial crime. Of further interest were the land cases, where I represented farm labourers, old farmers, new farmers and those aspiring to forcibly acquire ‘new’ land. These cases enabled me to travel around Zimbabwe more than I had in all my years, and to places I never knew existed. I argued in the Supreme Court sooner than I would have been able to, had the situation been normal. The human rights violations in Zimbabwe have led to claims that we are a failed state. Paradoxically, a recent UNDP Report provides that Zimbabwe has the highest literacy rate in Africa. During the impugned decade, Zimbabwe has also produced Olympic athletes, Rhodes scholars and award-winning writers. Are such achievements consistent with a failed state?

Perhaps not.

Zimbabwe should never be allowed to slide back as far as some of the countries that feature in international criminal law. My experiences at the United Nations International Criminal Tribunal for Rwanda and at the International Criminal Court have shown me that. Whether Zimbabweans believe it or not, we have not reached that threshold. At least not yet.

Elections are due in a few months time, maybe longer – no-one really knows. I am not registered to vote, nor am I too interested in the outcome. I understand there is little I can do to change the situation. This moment belongs to a different generation. My hope lies in the Zimbabwe of the future. Ten or even twenty years from now. True freedom for Zimbabweans is a continuous process which is yet to be fully attained. A lot will depend upon whether the oppressed of yesterday do not become the oppressors of today. The country will not build itself simply because the majority black people are now in charge. There is no substitute for hard work – entitlement for its own sake benefits no-one.

We must cease to be prisoners of our own vices in order to be truly free. Only then will we reap the fruits of independence.

Change does not roll in on the wheels of inevitability, but comes through continuous struggle. And so we must straighten our backs and work for our freedom. A man can’t ride you unless your back is bent.

~ Martin Luther King, Jr ~