Fidelis Munyoro-Chief Court Reporter

The 2018 decision by the Reserve Bank of Zimbabwe (RBZ) to convert all US dollar balances in Zimbabwean bank accounts to local currency was quite constitutional the Constitutional Court ruled yesterday in a unanimous decision.

Refusing to confirm a High Court judgment that declared in February this year the Reserve Bank of Zimbabwe’s exchange control directive which converted US dollar balances to local currency unconstitutional, the court went further and set aside the entire judgment by Justice Joseph Mafusire. 

An architect practice won at the High Court bid to have money deposited into their bank account during dollarisation retained as foreign currency instead of being automatically converted into local currency. 

Justice Mafusire ordered CABS, a commercial bank, to pay the practice partners Ms Penelope Douglas Stone and Mr Richard Harold Stuart Beatie back the US dollars converted into local currency within seven days. But the judgment remained suspended until the Constitutional Court confirmed the matter in terms of Section 175 of the Constitution. 

While the High Court can make a constitutional ruling this remains on ice until the Constitutional Court has signified its assent.

And on Tuesday, the confirmation proceedings were heard and determined by the full Constitutional bench which unanimously refused to confirm the judgment of the High Court.

The court went further and set aside the whole of the judgment of the lower court. Full reasons of the Constitutional Court would be made in due course. 

Ms Stone and Mr Beatie have been through a similar route before when they sued CABS, RBZ and the Ministry of Finance and Economic Development at the High Court over US$142 000 deposited in the practice business account. 

They won in the High Court that time as well, but saw the ruling overturned in the Supreme Court on the basis that since no argument on the constitutionality of the RBZ directive RT 120/2018 and section 44B (3) and (4) of the Reserve Bank Act had been presented, the matter was not properly before the court and the High Court had erred in making its ruling.

It also agreed with the CABS argument that it had to obey a directive from its regulator, the Reserve Bank.

The legal contest between the two and their bank spilled into the High Court following RBZ exchange control directive RT120/2018 issued on October 4, 2018. But the final Supreme Court judgment meant that this directive was still in force.

However, in August 2021, Ms Stone and Mr Beatie were back at the High Court over the same issue but the push was now different, as they sought the setting aside of the Exchange Control Directive RT120/2018 and a raft of some legislative provisions of the Reserve Bank Act and of the Finance (No. 2) Act of 2019 for allegedly violating Section 71 of the Constitution which guarantees the protection to property rights.

They targeted provisions that allegedly violated s35(1) of the Exchange Control Regulations, SI 109 of 1996, including s44B (3) and (4) of the Reserve Bank Act plus s 22(1)(b) and (d), s 22(4)(a) and s 23(1) and (2) of the Finance Act.

The pair argued that the process was an infraction of their constitutional right to property and sought the reversal of the act of the conversion by their bank the deposit of US$142 000 to RTGS, which they allege was done on the authority of the monetary policy statements, the Exchange Control Directive RT120/2018.

Justice Joseph Mafusire declared two portions of the directive unconstitutional and ordered CABS to pay the two their US$142 000, together with interest at the prescribed rate of 5 percent a year from November 28, 2016, to the date of payment.

The judge found that two paragraphs of the directive allowed CABS and the Finance Minister to interfere improperly with the contractual rights and obligations as existing between the two architects and CABS, resulting in the deprivation of the applicants’ right to property in breach of s 71(2) of the Constitution.

The judge also ruled that the particular directive breached the Exchange Control Regulations of 1996 since those regulations did not give the power to issue the directive.

But in a similar case involving CABS, a different judge of the High Court, Justice Webster Chinamora, a few days later differed with his brother judge ruling that CABS could not pay a client US$179 000 in foreign currency, being the balance converted to local currency at the height of currency reforms in 2019 saying courts have no power to review Government policy on banking matters.

Mr Duncan Hugh Cocksedge had approached the High Court seeking an order compelling the bank to pay him the money it effectively converted to local currency in his account back to US dollars.

He also sought to impugn the Reserve Bank of Zimbabwe exchange control directive converting US dollars’ accounts into RTGS accounts as unconstitutional.

But Justice Chinamora refrained from deciding what he saw as a pure political question. He ruled that Mr Cocksedge’s claim for repayment of his money in foreign currency was contemptuous of the Government’s policy directive.

The judge took a view that the regulation of banking activities to achieve stability in the economic sector falls exclusively within the realm of the executive arm of Government.

“Put it differently, how the Government makes policies aimed to achieve monetary stability and incentivise the generation of foreign exchange in the national interest is a political question, best left to the politicians,” said Justice Chinamora.

“Courts in this jurisdiction are familiar with the political questions doctrine and how to deal with a case where this arises.”

He also noted that the Supreme Court had since confirmed that all balances and liabilities which were denominated in United States dollars before February 22, 2019 became balances in Zimbabwean dollars at par with the United States dollar.

To this end, Mr Cocksedge’s claim for repayment in United States currency could not be sustained if it did not qualify under the provisions of section 44C of the Reserve Bank Act. 

In the Constitutional matter, Advocate Tererai Mafukidze appeared for Stone and Beatie. Adv Thembinkosi Magwaliba represented CABS, while the Reserve Bank of Zimbabwe was represented by Adv Lewis Uriri and Ms Nqobile Munzara with Professor Lovemore Madhuku representing Prof Mthuli Ncube the Minister of Finance.

Arts Reporter

Zimbabwe Music Rights Association (ZIMURA) board member, Philip Chipfumbu, who was ‘fired’ recently has opened up on the status of the organisation.

Chipfumbu was responding to a story published early this week in which ZIMURA spokesperson Alexio Gwenzi said the organisation had fired him as the leader of the team which reported fraud allegations to the police, flouting laid down procedure.

Gwenzi accused Chipfumbu of spreading malicious gossip and said he was on a smear campaign to tarnish board members and the ZIMURA brand.

Chipfumbu dismissed that he was fired and said he had incriminating evidence on the executive board.

“I am not surprised to hear I was fired from the board through the press,” he said.

Chipfumbu accused Albert Nyathi, Polisile Ncube-Chimhinhi, First Batani and Witness Zhangazha of “having captured ZIMURA a long time ago.

“The cartel is a law on its own,” he said. “They have set aside the Memorandum and Articles of Association which is our own law. Members are being deceived by holding futile elections.

“There wasn’t any communication between the association and myself to this regard (of being fired). These are people who are trying to pour water on the fraud charge I am a complainant against Albert Nyathi, Alexio Gwenzi, Witnesses Zhangazha, First Batani, Polisile Ncube and Henry Makombe.”

Chipfumbu said the so-called executive board, among other offences, preferred to use a 2014 CR6 which is deemed proof of directorship according to the Companies and Other Entities Act.

“This, therefore, means that for every transaction that needs proof of directorship the Albert Nyati-led alliance produce the 27 November 2014 CR6 which bears the names of the association less those who would have been currently voted,” he said.

Chipfumbu said this then gave the alliance powers outside elected board members whom the membership would have voted into office.

“Despite the 19 July 2017 and the 3 May 2022 elective AGMs providing new board members, the cartel went on to keep the 27 November 2014 CR6. The cartel omitted to register the member-elected boards preferring a dissolved body that even has the late Joyce Simeti, may her soul rest in peace,” he said.

Chipfumbu said the affected board of 19 July 2017 comprised Albert Nyathi, Pastor Charles Charamba, Witness Zhangazha, DJ Phuti, Mechanic Manyeruke, First Batani, Nathaniel Ncube, Phillip Chipfumbu.

“Then the 2 May 2022 board also suffered the same fate and it composed Alexio Gwenzi, Janet Manyowa, Phillip Chipfumbu, Mudiwa Hood, Albert Nyathi, First Batani.

“The law guiding ZIMURA according to the Companies and Other Entities Act where the association is registered as a non-share company compel the association to register AGM resolutions within a month for the resolution to be of legal force Section 217 Subsection 5 of the Companies and Other Entities Act.

“This, therefore, means that the board of directors registered on 27 November 2014, the late Joyce Simeti, Albert Nyathi, Pastor C Charamba, Witness Zhangazha, Bob Nyabide, First Batani, Emmio Sibindi effectively remain the directors of ZIMURA despite being voted out on the 19 July 2017 Elective AGM.”

Explaining further, Chipfumbu said this had plundered the association into chaos.

“Those claiming to have relieved me from my directorship duties are without locus standi,” he said. “First they have a conflict of interest, in the midst of a dispute concerning the misappropriation of funds by Albert Nyati, Alexio Gwenzi, First Batani, Polisile Ncube. I am not amused they have the guts to inform the whole world they have fired me.

“Secondly, what else would a bogus board of directors do when they are cornered. I challenged their legality and facts are awash they are not a legal board. For further conviction, you can check with the Companies Office which issued us with an affidavit I am annexing to this correspondence.”

Chipfumbu said Gwenzi was not entitled to comment on the issue.

“On the same note, Alexio must desist from commenting on behalf of the police, he must not play the accused, investigating officer, public prosecutor, and judge, let the law take its course,” he said.

“I believed we were genuinely serving our membership until there was an unsanctioned trip to Bulawayo that opened my eyes that there was something fish going on. I tried everything to have my motion discussed in a formal board meeting, but all three letters were ignored.

“I then declared a deadlock. I discovered that I was not even registered as the association’s director after all. It is their modus operandi that they remove dissenting voices from membership. This is not the first time.”

Chipfumbu said he was leading members to an extraordinary meeting next month at the College of Music to resolve the crisis.

“ZIMURA is membership driven and the members form the apex decision-making board,” he said. “I am not deterred by people who misappropriate funds and advance selfish interests in the name of an association.

“I am also a complainant in an ongoing fraud case involving Albert Nyathi, Polisile Ncube, Alexio Gwenzi, Witnesses Zhangazha and Henry Makombe, reference DR 05/03/23.”

Former ZIMURA member Fred Farai Nyakudanga said he was worried that the Albert Nyathi-led board was tarnishing his name in its dispute with Chipfumbu.

“The Albert Nyathi-led board must answer questions directed to it with respect to misappropriation of funds which is also of high interest to me,” he said.

“I am not in the ZIMURA board neither am I a complainant in a fraud charge some of this board’s membership is facing. Why Alexio Gwenzi is preferring to defame me over serious allegations he is facing I am keen to know.

“I am a father, business person, community leader, and a son. My literate peasant farmer parents read the newspaper every day and they are seriously affected by Alexio Gwenzi’s utterances. This is not the first time the Albert-led board has rolled my name in the mud. Each time they are asked to account, their defence is Fred Farai Nyakudanga.”

Gwenzi yesterday confirmed that they fired Chipfumbu and had since submitted the CR6 document from 2017 and 2022 which did not even include him as a director.

“It’s unfortunate they saw the wrong file,” he said. “He is fired and let the law take its course, even going to court we ready. As far as it concerns, we have never received a call or been picked up by police, so we are still surprised by everything happening.”

Some close sources have revealed that the war is about power and control of the organisation and the belligerents are using the media to solve their issues, rather than taking the matter to court if they have a strong case.

Zvamaida Murwira and Wallace Ruzvidzo

PRESIDENT Mnangagwa yesterday proclaimed August 23, 2023, as the day on which harmonised elections will be held, opening the door for political parties’ to start their campaigns in earnest and ending weeks of speculation.

The Head of State and Government also fixed June 21, 2023 as the day on which the Nomination Court will sit to consider and accept candidates for Presidential, parliamentary and local authority elections.

President Mnangagwa made the proclamation in a Statutory Instrument contained in an Extra-Ordinary Government Gazette published yesterday in terms of both the Constitution and the Electoral Act.

The Gazette reads in part: (I) “fix the 23rd day of August 2023, as the day of the election to the office of President, the election of members of the National Assembly and election of councillors, that is to say, as the day on which a poll shall be taken if a poll becomes necessary in terms of section 46(17) (c) or 125(4)(b) of the Electoral Act [Chapter 2:13] for the election to the office of President or any such members of the National Assembly or councillors”.

The President has also set October 2, 2023, as the day for the run-off election, should there be no outright winner in the presidential election as contemplated by the Constitution.

“ . . . fix the 2nd day of October 2023, as the day of the runoff election to the office of President, that is to say as the day on which a poll shall be taken if such a poll becomes necessary in terms of section 38(1)(a)(iii) of the Electoral Act”.

The Nomination Court will sit at the High Court in Harare to consider Presidential candidates while it will sit at all the 10 provincial capitals for Parliamentary candidates.

The Nomination Court will sit at all council offices across the country to consider candidates for local authority elections.

“Now, therefore, under and by virtue of the powers vested in the President as aforesaid, I do, by this proclamation — (a) in relation to the election to the office of President referred to in Section 92(1) of the Constitution, determine that a nomination court shall sit on the 21st day of June, 2023, commencing at 10 o’clock in the morning, in the High Court, Court A, Mapondera Building, Samora Machel Avenue, Harare; and (b) in relation to the election of the two hundred and ten members of the National Assembly referred to in section 124(1)(a) of the Constitution determine that a nomination court shall sit on the 21st day of June, 2023, commencing at 10 o’clock in the morning,” reads the notice which went on to specify various centres where the Nomination Courts will sit.

The President also fixed August 3, 2023, as the day on which Provincial Assemblies of Chiefs shall meet to elect chiefs to the Council of Chiefs.

 Some of the areas that the Nomination Court will sit for parliamentary candidates include Harare Magistrate Court (Rotten Row), while in Bulawayo it will sit at the Magistrate Court 5, Tredgold Building while in Mutare it will sit at the Magistrate Court Main Street.

The ruling Zanu PF party, MDC-T and opposition Citizens Coalition for Change (CCC) are the main contestants in the elections, in which several smaller political parties are also expected to take part.

The announcement of the election date kick-offs the campaign season, which so far has been low-key by all the parties while the Zimbabwe Electoral Commission (Zec) is expected to take charge of the regulation of the media on electoral issues.

Zec, working in collaboration with other Government agencies, is expected to invite and accredit local and foreign observer missions to observe the general elections which will be held in terms of the country’s Constitution, Sadc Principles and Guidelines Governing Democratic Elections and African Union guidelines.

In terms of Section 143 of the Constitution, Parliament stands dissolved at midnight on the day before polling.

It reads as follows: “Duration and dissolution of Parliament (1) Parliament is elected for a five-year term which runs from the date on which the President-elect is sworn in and assumes office in terms of section 94(1)(a), and Parliament stands dissolved at midnight on the day before the first polling day in the next general election called in terms of section 144.”

Zimbabwe is expected to use the new Delimitation report after ZEC conducted a delimitation of the electoral boundaries as provided by Section 161(1) of the Constitution.

President Mnangagwa has since published a proclamation in the Gazette in terms of the Constitution declaring the names and boundaries of the wards as determined by the Commission, hence the new boundaries of provinces, constituencies and wards shall apply for the purposes of this election.

The country is obliged to hold general elections after every five years which runs from the date on which the President-elect was sworn in and assumed office.

In the last election, the President was sworn in on August 26, 2018, and the five-year period is expected to end on August 25, 2023.

Section 158(1)(a) of the Constitution provides that a general election must be held so that polling takes place not more than 30 days before the expiry of the five-year period.

Parliament is currently considering the Electoral Amendment Bill.

The Bill will operationalise the latest constitutional amendments for the election of 10 youth members of the National Assembly, one from each province, as well as the continued election of 60 women, six from each province, to the National Assembly under a party-list system.

It will extend the new constitutional provisions for the election of women on a party-list system to provincial councils and local authorities, and will prevent people from being nominated for election if they have been convicted of certain offences.

The Bill seeks to stop the use of driver’s licences as proof of identity by persons who register as voters and those who obtain ballot papers at polling stations.

Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi said the proclamation of election date has no effect on the Electoral Amendment Bill since what it provides is already in the Constitution.

“There are no things that are critical that say an election cannot be done. It’s good to improve the laws but there is nothing that makes the process not free and fair,” he said.

“The women’s quota was already there in the Constitution; it was due to expire and we extended and the youth quota we put it in the Constitution, it is our law.”

In a separate interview, constitutional law expert Professor Lovemore Madhuku said no new laws could be enacted following the proclamation of the election date by President Mnangagwa.

“It means that certain amendments that were in the Bill will not apply for this election, they will have to apply in 2028 if they are passed into law by then. There cannot be any new law in terms of elections now.

“The proclamation freezes election laws so the law that will apply is that which was there at the time of the proclamation,” he said.

Asked about preparedness for the elections, Zanu PF Secretary General Cde Obert Mpofu said the ruling party had oiled its machinery and was raring to go.

“We have been looking forward to this proclamation by the President of our country and now that the date has been announced, Zanu PF is geared to go and as I speak we are already deploying our arsenal around the country,” he said.

CCC spokesperson Advocate Fadzai Mahere said the opposition party was preparing for the polls.

“From the inception of the Citizens’ Movement, we have been laying the groundwork for that victory. We have executed a mass grassroots mobilisation campaign, Mugwazo, which has seen the CCC penetrate each of the 36 000 villages in the rural areas, all towns, all cities, all provinces and the diaspora,” she said.

MDC spokesperson Mr Witness Dube said they had just been awaiting the date to be announced.

“We have always been ready for the elections,” he said.