HARARE lawyer and businessman Frederick Nyamande has taken President Emmerson Mnangagwa to court following the promulgation of the controversial Mutapa Investment Fund which he argues allows the head of state to loot public resources.
OWEN GAGARE
Mnangagwa is jointly sued with the Parliament of Zimbabwe and Mutapa Investment Fund, an entity which was created by the Presidential Powers (Temporary Measures) (Investment Laws Amendment) Regulations also known as Statutory Instrument 156 of 2023.
The SI is an amendment to the Sovereign Wealth Fund Zimbabwe Act (Chapter 22:20).
The Attorney-General and Justice minister Ziyambi Ziyambi were also cited as respondents in the urgent chamber application.
Mutapa Investment Fund is a pool of resources, that is public equities, commodity royalties and allocations from the government that will be invested in future.
The history of the fund dates back to 2014 and has clear objectives such as to invest for future generations and support the country’s development goals, among other objectives.
On 19 September, the President controversially promulgated the SI which changed the name of the sovereign wealth fund to Mutapa Investment Fund, sparking uproar.
Critics complained that the renaming was never explained yet it gives Mnangagwa unfettered powers to appoint the chief executive officer and all eight members of the Mutapa Investment Fund board.
He is not bound by any recommendations from anyone.
Nyamande prayed that his application be heard urgently since the subject is of national interest.
He filed an urgent constitutional application for a declaration that sections 2(2) and 5 of the Presidential Powers (Temporary Measures) Act (Chapter 10:20) (“the Act”) be declared invalid and unconstitutional for being inconsistent with sections 2(1) and section 134 of the constitution of Zimbabwe.
His application challenges all the provisions of the Act which allow for the passage of different kinds of Presidential Powers (Temporary Measure) Regulations and which permit such regulations to override laws enacted by Parliament.
It is also his contention that the SI was promulgated to enable Mnangagwa to loot state resources.
“I submit that I have legal standing to bring this application because I bring it on my own right and in the public interest.
“The Regulations which are made in terms of this legislation always affect the public in Zimbabwe because they allow the First Respondent (Mnangagwa) to rule by decree and allow him to enact his own ‘Enabling Act’ in the context of this matter the First Respondent has enacted the Presidential Powers (Temporary Measures) (Investment Laws Amendment) Regulations, 2023 (Statutory Instrument 156 of 2023) which create the Third Respondent (Mutapa Investment Fund) an entity lacking in accountability but holding most of the valuable national commercial assets and interests,” he said.
Nyamande said it is important that relief be granted in this matter immediately so that all the national assets in the form of the total shareholding in the parastatals listed in section 19 of the Presidential Powers (Temporary Measures) (Investment Laws Amendment) Regulations, 2023 (Statutory Instrument 156 of 2023) are not handed over to an entity which was not created by Parliament as the constitutional holder of state assets and finances.
“It is important that the Court give its immediate pronouncement on this critical issue before any further unlawful acts are perpetuated.
“It is further critical that the court must intervene in these proceedings on urgent basis as there is clear violation of the procurement legislation of the nation which is even legislated for in the supreme law of the land,” he said.
He said if the court does not intervene on urgent basis, with respect, it will have condoned an illegality contrary to the laws.
In his founding affidavit, Nyamande said the effect of regulations made in terms of section 2 shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from Regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].
“I respectfully submit that this provision of the Act is, in its entirety, contrary to section 134(a), (b), (c) and (d) of the Constitution of Zimbabwe which provides that Parliament may, in an Act of Parliament, delegate power to make statutory instruments within the scope of and for the purposes laid out in that Act, but Parliament’s primary law-making power must not be Delegated,” he argued.
He said statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights.
He also said statutory instruments must be consistent with the Act of Parliament under which they are made.
According to Nyamande, the Act must specify the limits of the power, the nature and scope of the statutory instrument that may be made, and the principles and standards applicable to the statutory instrument.
“I respectfully submit that section 2(2) of the Act is unconstitutional in the following respects . . . it delegates to the President the primary law-making powers of Parliament to enact, amend or repeal principal legislation, that is, Acts of Parliament — other than matters relating to the Consolidated Revenue Fund and the Constitution,” he said.
“This is done through Regulations — envisaged in section 2(1) of the Act which are made with the powers provided by section 2(2) of the Act meaning that they can provide for any matter which can competently be provided for in an Act of Parliament — that is, new Act of Parliament, amendment to an Act of Parliament and repeal of an Act of Parliament.
“This is a contravention of, and it is inconsistent with, section 134(a) of the Constitution of Zimbabwe.
He added: “It delegates to the President the power and competency to provide for any matter which can lawfully be provided for in an Act of Parliament such that the President can, and indeed has in the past, enact Regulations (statutory instruments) which infringe upon and/or limit the rights and freedoms set-out in the Declaration of Rights under Part 2 of the Constitution of Zimbabwe.”
Apart from this, according to the lawyer, there are also regulations such as the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No. 2) Regulations, 2008 (SI 43/2008) which limit the right to vote and other political rights in section 67 of the constitution of Zimbabwe.
“This is a contravention of, and it is inconsistent with, section 134(b) of the Constitution of Zimbabwe.
“It delegates to the President the power and competence to make Regulations on such a wide array of matters such that it is not even possible to tell if such Regulations can be consistent with the Act itself.
“The President is granted the power to make any legislation whatsoever, (with the exception of money bills and Constitutional amendments).
“The Regulations can thus never be consistent with specific matters in the Act. This is a contravention of, and it is inconsistent with, section 134(c) of the Constitution of Zimbabwe.
“It delegates to the President the competence to make Regulations on matters which are far too wide in scope under powers which are far too great for it to ever be consistent with section 134(d) of the Constitution of Zimbabwe.”
Nyamande said section 5 of the Act is unconstitutional as it permits the regulations to become a form of super legislation which can override not only another Act of Parliament but also possibly a provision of the constitution as long as the regulations do not purport to add to, amend or repeal the constitution.
“This is clearly impermissible even in an Act of Parliament . . .” he said.
“The violations which I allege in this matter are separation of powers violations and not violation of rights in the Bill of Rights. Thus, there can be no limitations enquiry similar to that provided for in section 86 of the Constitution of Zimbabwe regarding whether the provisions of section 2 of the Act can be saved from a declaration of invalidity and a subsequent severance order.
“Thus, upon a mere finding that sections 2 and 5 of the Act are inconsistent with the Constitution of Zimbabwe they must be struck down.”
“Section 3 on the giving of Notice of Intention to Make Regulations is unhelpful as it still does not turn the President into a legislator or the Legislature.
“The mere giving of notice and receiving of representations does not entitle the President to exercise primary law-making functions of Parliament on the broad spectrum already alluded to.
“Further the current President and the previous President have not bothered to utilise this section on any occasion I can recall.
“In fact, the last 20 sets of Regulations have been gazetted without notice being given of the intention to gazette them.”
Nyamande complained that the laying of the regulations before Parliament under section 4 of the Act is without consequence.
He submitted that Zimbabwean laws allow such an instrument to undergo scrutiny by the Parliamentary Legal Committee.
The lawyer said powers conferred upon the President by sections 2 and 5 of the Act are unconstitutional and undesirable because they permit the President to rule by decree.
He said they violate the principle of separation of powers as stipulated by the constitution in section 3 which enunciates the republic’s founding values.
“These impugned provisions were enacted in 1985 when the Constitutional structure of Zimbabwe was similar to that of the British system in which all members of the Executive (including the Head of the Executive the Prime Minister) were part of and directly accountable to Parliament.
“This changed in 1987 and it was changed even more in 2013 with the coming in of the current Constitution. What was permissible in a commonwealth form of Government is now completely prohibited in the current constitutional dispensation.
“The Regulations made in terms of these provisions of the Act are an easy tool for sudden reversal of policies which are enacted into legislation by Parliament,” he said.
Nyamande also said the regulations have done more harm than good to whatever situation they were intended to address.
He said this is a likely result of principal lawmaking powers being exercised by an individual when the wisdom of constitutionalism dictates that they should be exercised by a large body after thorough and public deliberation.
Nyamande said the repealing of the Sovereign Wealth Fund Act brazenly usurps the primary law-making role of Parliament.
He said it is so brazen that no sane Zimbabwean can debate this, including the President if properly advised by the newly appointed Attorney-General and the minister of Justice.
“The regulations further amend section 3 of the Public Procurement and Disposal Assets Act Chapter 22:22.
“This is impressible and shows that the President gazetted law specifically designed to enable looting.
“Procurement must never be done behind closed doors, it must be done as transparently as possible and in as accountable a manner as possible.
“I respectfully submit that I have made a case for the relief which I seek. Wherefore I pray for an order in terms of the draft,” he said.
The matter is yet to be set down for hearing
