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Machaya asserted that Reconstruction Act was constitutional in 2018, is he correct?

Political Correspondent



In November 2018, Mr. Prince Machaya asserted boldly that a law that divests and deprives shareholders and directors of the control and management of a private company was Constitutional.

He stated as follows to the Parliamentary Committee on Mines that was chaired by Hon. Themba Mliswa as follows:

Source: https://news.pindula.co.zw/2018/11/20/parliament-has-no-power-to-probe-hwange-colliery-company-attorney-general/

Below we have a Q&A with Mr. Tinashe Mpasiri, Director of Corporate Literacy at the Justice Under Rule of Law Institute, an initiative jointly powered by the 1873FM radio and the Banking on Africa’s Future Initiative:

Q: Mr. Mpasiri what is the state?

A: It is ironic that Mr. Machaya, the Attorney General (AG) knows and ought to know that in relation to the Reconstruction of State-Indebted Insolvent Companies Act (Recon Act), the word STATE is not defined.

If this is accepted as true and fact, the question that inevitably follows is how can one be indebted to a nullity?

Notwithstanding, the AG who evidently lives on another planet asserts that it can be a legal possibility that a company can be indebted to this self-created creditor called the state.

Just to demonstrate the absurdity implied in the AG’s assertion that: “In the case of companies which are put under reconstruction, the fact that they are indebted to the State does not necessarily make them Government agencies,” the constitution in terms of s69(2) that provides as set out below precludes a creditor in the name of the state from assuming a superior creditor status in relation to a debtor in terms of the doctrine of equality:

“In the determination of civil rights and obligations, every person has a right to a
fair, speedy, and public hearing within a reasonable time before an independent
and impartial court, tribunal, or other forum established by law.”

Consequently, no law can pass the constitutional muster that is based on a principle that makes the state a judge, jury, and executioner in relation to civil rights and obligations.

The AG has a constitutional duty in terms of s114(4)(d) of the Constitution of Zimbabwe: “to promote, protect and uphold the rule of law and to defend the public interest;” and his conduct and attitude in relation to the constitutional validity confirm he not cognizant on the limitations imposed upon him by the constitution.

Q: What is your take on the statement by AG that: “Parliament cannot exercise its powers over a company like Hwange, any power that it would not otherwise have if it is not under an order of reconstruction because it is a privately-controlled company?”

A: Indeed, no company is contemplated and permitted to exist that is defined as state-indebted because the indebtedness of a company does not define its identity. This is like classifying a pregnant woman into another human class. A woman belongs to a universal class of humans and as such should be incapable of belonging to any special class solely on account of pregnancy.

A company is a company by any description and, therefore, the Recon Act creates no company and as such a company under reconstruction is no company at all but is analogous to a company whose control and management are hijacked by an act of state.

This can only happen in a country that does not respect the rule of law.

It is chilling that an AG, an oath-taking public office bearer can surrender to a civilization in which the so-called state can acquire the rights and freedoms of a creditor when it enjoys no standing to be a creditor.

What is astonishing is that this offensive and morally bankrupt Act is administered by the Minister of Justice, Legal, and Parliamentary Affairs who possesses no jurisdictional facts to determine if a private company is indebted or not?

On what legal and constitutional basis would this public office bearer acquire the facts to enable him to determine that a private company is indebted to the so-called state on the one hand and conclude in his mind that the said company is insolvent without the purported debtors being constructively involved in the enterprise of hijacking?

Q: The AG asserted that the company so hijacked using this law as a weapon: “has got shareholders and other people,” what is your take on this statement?

A: The mere fact that the hijacked company has its own shareholders and officials makes it unconstitutional for public power to be used to divest and deprive them of the control and management of their company without following the due process of the law.

Q: The AG further stated: “If there was no order of reconstruction, Parliament cannot play its oversight over Hwange,” what do you make of this statement?

A: The AG is saying because the hijacking of a company does not involve any public funds, the Parliament has no jurisdiction over the creature. This is tantamount to saying that the loot obtained from the use of public power does not legally belong to the government but to the looters.

Q: The AG stated: “The order of reconstruction itself does not make Hwange an institution of Government,” what is your take on this?

A: The whole enterprise of reconstruction is to permit crooked public office bearers to use the government and its coercive power to expropriate private assets without necessarily creating any accountability in the process. In other words, the Administrator, a creature of statute assumes the control and management of the confiscated assets without suffering the statutory burden of reporting to any organ of state other than the Minister who issued the extra judiciary order in relation to a private company whose effect is to create a facade of a company without the properties of a company. The Administrator is not accountable to Parliament yet the basis of placing the company under reconstruction is that the hijacked company is indebted to the fiscus.

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