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Lawyer Shava challenges chaotic forex regulations
Finance minister Mthuli Ncube


Lawyer Shava challenges chaotic forex regulations



LAWYER Obey Shava has filed a Constitutional Court application to have Statutory Instrument 127 of 2021 set aside and declared unconstitutional.

The regulation, gazetted under temporary presidential powers, imposes penalties on the issuing of a local currency receipt for a foreign currency purchase, pricing goods and services above the ruling exchange rate, pricing of goods and services only in foreign currency and using the money obtained from the official forex auction for unauthorised purposes.

In his affidavit Shava, who is represented by Tonderai Bhatasara of the Zimbabwe Lawyers for Human Rights, said SI 127 of 2021 gives too much power to the Reserve Bank to be the complainant, prosecutor, jury and executioner in one, against the constitutional principle of the separation of powers.

President Emmerson Mnangagwa is the first respondent in the matter while, Finance and Economic Development minister Mthuli Ncube (pictured) and Attorney-General Prince Machaya are cited as the second and third respondents, respectively.

“I am seeking an order declaring the Presidential Powers (temporary measures) (Financial Laws Amendment) Regulations 2021 (SI 127/2021/Regulations) unconstitutional,” Shava says.

“Section 69 of the Constitution decrees that ‘every person accused of an offence has a right to a fair, public trial… before an independent and impartial court’. Paragraph 2 to the Schedule makes the Reserve Bank of Zimbabwe, the complainant, prosecutor, jury and executioner in one.”

He said the presumption of innocence is a cornerstone of the country’s criminal justice system and thus a person accused of breaching the law is entitled to be given enough time to defend themselves.

“Paragraph 5(3)(a) and 5(6) discriminates against officers of corporates envisaged in section 3 by making them separately liable contrary to the principle of incorporation of company. This discrimination is prohibited by section 56(3) as read with 56(4) (a) of the constitution. It means one’s social status of being an officer of a company participating at the auction floor is criminalised and you are also liable to civil penalties. This personal liability (which is not fault-based) is not applicable to officers of other corporate organisations.”

“It is clear from the above that is the enumerated paragraphs are severed from the Regulations, nothing remains. To that extent the whole Statutory Instrument 127 of 2021 is liable to be struck down and is decidedly unconstitutional,” Shava’s affidavit reads.

The prominent human rights lawyer said he was an interested party in the matter as it is a matter of public interest.
“I have further duty to do all things necessary to promote and to protect human rights, the rule of law and separation of powers in Zimbabwe.

The SI was made by Mnangagwa on 26 May 2021 and published in the extraordinary Government Gazette.
According to SI 127, businesses that do not accept Zimbabwean dollars at the official exchange rate for goods and/or services priced in United States dollars  may face a maximum fine of ZW$50 000.

Agents who use forex obtained directly or indirectly from the Reserve Bank of Zimbabwe auction market for purposes other than that specified in their application for forex will be guilty and liable to a fixed penalty of ZW$1 million.

Zimbabwe adopted dual pricing in 2020 through SI 185 banning exclusive use of forex. The statutory instrument is temporary, as it will lapse after six months (181 days).

The Presidential Powers have also been used to amend the Bank Use Promotion Act [Chapter 24:24] which now penalises business entities that fail to open a bank account.

Also, failure to bank surplus cash in a bank account within the time specified will now also attract a penalty of the amount equivalent to a single day’s banking of cash, being the estimated average daily banking of cash in a continuous period of seven business days within 21 days preceding the issuance of the order.

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