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SENATE HANSARD 04 December 2019 29-09
PARLIAMENT OF ZIMBABWE
Wednesday 4th December, 2019
The Senate met at Half-past Two o’clock p.m.
PRAYERS
(THE HON. DEPUTY PRESIDENT OF SENATE in the Chair)
ANNOUNCEMENT BY THE HON. DEPUTY PRESIDENT OF
SENATE
BILL RECEIVED FROM THE NATIONAL ASSEMBLY
THE HON. DEPUTY PRESIDENT OF SENATE: I have to
inform the Senate that I have received the Money Laundering and Proceeds of Crime Amendment Bill [H. B. 4, 2019] from the National Assembly.
SECOND READING
ZIMBABWE INVESTMENT DEVELOPMENT AGENCY BILL [H.
- 2A, 2019]
THE MINISTER OF JUSTICE, LGEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Mr. President,
Hon. Senators, the enactment of this measure by yourself will mark an important milestone in the road towards making our country a middleincome country. It is crucial to wealth creation, job creation and to individual and social empowerment.
The Bill combines the mandates of three existing pieces of legislation that deal with investment, namely the Zimbabwe Investment Authority Act, the Special Zones Act and the Joint Ventures Act. At the apex of the new Zimbabwe Investment and Development Agency, as will be called, will be the Chief Executive Officer, appointed by His Excellency the President himself in the first instance (or, in the future, the Minister or Vice President administering the Act). The CEO will be assisted by an Advisory Board of ZIDA, and will ultimately be accountable to Parliament through his or her annual reports.
Let me briefly remind you of the mandates of the individual Acts absorbed by this Bill. The Zimbabwe Investment Authority was responsible for issuing licences to foreign and domestic investors and smoothing the way for the commencement of the licensees’ operations. The Special Economic Zones Act establishes SEZs wherein investors primarily involved in the export trade enjoyed certain privileges, such as exemption from ordinary customs tariffs. The Joint Venture Act was concerned with the exploitation by foreign and domestic investors of State –owned resources, such as land, contracts for Government utilities in the power, transport and water resource field, and the like. All three of these endeavours will now come under the domain of ZIDA, so that policy overlaps and turf wars in the important field of investment will be a thing of the past.
Important additional features of the Bill deserve mention. I single out in particular the One- Stop Investment Service Centre, where delegates from all Government agencies and ministries involved with investment in one way or another are gathered under one roof to assist potential investors with their queries, without having to pass them from pillar to post. The Bill also provides important statutory guarantees against discrimination between foreign and domestic investors, and pledges of fair treatment to all investors and against arbitrary expropriation and taxation. Holders of investment licences will be accorded certain privileges, such as priority in the consideration of any secondary licences or permits required to secure their investments.
Important prospects are extended to investors whose countries have Bilateral Investment Treaties with us. In particular, such investors may, under certain conditions, have their disputes adjudicated in an international or bi-national forum.
Mr. President, Hon. Senators, the heading of the provision of this Bill speak for themselves, and I urge you to peruse them to see what a generous piece of legislation this is to our investors, eagerly awaited by them and endorsed by international bodies such as the World Bank. In short, I urge you to support and pass this law wholeheartedly. I thank you.
HON. SEN. SHOKO: Thank you Mr. President. I want to understand from the Minister, when I perused the document here l saw a list of organisations. I am looking at Clause 5 and I wanted to ask the Minister to explain whether we did not have something called
Zimbabwe Investment Centre? Why is it not included here? What is the difference between this which we are now formulating and the Zimbabwe Investment Centre? I thank you Mr. President.
HON. SEN. B. MPOFU: My question is on the issue of the structure of this very organisation and in particular, the reason why we have a Chief Executive Officer (CEO) and an advisory board instead of a board and a CEO. History has it in many places that when we have a
CEO who has an advisory board, he becomes a law to himself or herself. When we have a board, it becomes the moderator of the organisation and ensures that appropriate corporate governance is actually upheld. I would like to understand more about that particular structure, especially if you look at what we have already at the Reserve Bank and some of the issues people raise about the Governor being the chairperson of the very organisation. It creates a conflict and a very messy corporate governance situation. Thank you.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI) on behalf of THE
MINISTER OF INDUSTRY AND COMMERCE: Thank you Mr.
President. I want to thank the Hon. Members for the debate. Mr.
President, in my speech I alluded that this Bill is now repealing the Zimbabwe Investment Authority and the Special Economic Zones. We used to have what he was referring to, the Zimbabwe Investment Centre which was replaced by the Zimbabwe Investment Authority and now we are going to replace this with ZIDA. So, there is no need to mention that organisation because it is the one that we are replacing. We are collapsing all the three and we now have one legislation. Therefore, all the Ministries will be represented under one roof so that we can expedite the process.
On the second question on the advisory board, the thinking that we had is, we need to move our economic agenda faster than what we are doing. The thinking that we have if you understood in my speech is, we want it housed in the President’s office so that he has direct oversight on investment issues initially and progressively when we now are familiar with it we can then have a board that will be a stand-alone or even a CEO at ZIDA that will not be part of that. Our thinking based on lessons learnt from others, in the initial phases it is prudent that we deal with it in such a manner. I thank you Hon. President and I move that the Zimbabwe Investment Development Agency Bill [H. B. 2A, 2019] be now read a second time.
Motion put and agreed to.
Bill read a second time.
Committee Stage: With leave, forthwith.
COMMITTEE STAGE
ZIMBABWE INVESTMENT DEVELOPMENT AGENCY BILL
[H. B. 2A, 2019]
House in Committee.
Clauses 1 to 6 put and agreed to.
On Clause 7:
HON. SEN. B. MPOFU: Thank you Hon. Chair. Previously, I queried the issue of a CEO who has got an advisory board and I also mentioned that in terms of corporate governance, I did not find that to be a prudent move. The Minister went ahead and explained the reason why we have that kind of approach and scenario. The explanations to me sounded like explanations that are temporary. We are coming up with an Act; we are not coming up with a regulation. We cannot come up with an Act whose clauses have got some limited time to it. We were hoping that this will stay for longer than the years that the Minister has already alluded to. My question therefore is, why are we having a situation that is temporary in an Act rather than go for the appropriate corporate governance structure and then possibly come up with a regulation for the intermediate situation that he is talking about? I do not understand why we should do that. Thank you.
HON. SEN. SHOKO: Madam Chair, I am still on 7, the issue of the Advisory Board. I think the Minister will consider this. Let us do the right things at the right time because we have a problem where we say we are doing temporary, then we discover we have a problem and we start putting Statutory Instruments. You remember when we were debating the Budget, it was pointed out to us to say we have a lot of Statutory Instruments that we put through. The best thing that we can do here is to ordinarily go for the board. For example, if you look at 7 itself, it talks about the advisory board, then composition of the ZIDA Board. You can see that even when we are talking we are thinking of a real board, so the Minister should consider that we have a board that is going to be responsible for these things.
As you say, this office or this particular operation or this Act is going to be supervised from the Office of the President. I believe it will also reduce friction between the advisory board and the Chief Executive Officer. I think the Minister should look at that carefully and listen to what we are trying to put through so that we do things that will last and that will help the country. I thank you Madam Chair.
HON. SEN. MAKONE: Thank you Madam Chair. I would like
to point out to the Minister that the last time when we had a one-stop Investment Centre, the thought was that it would make it easier for the investors to come into one place and do everything under one roof but it never took off. I do not see the difference in practice really between what happened and what is going to happen now. If the President is the one who is going to make the transition smooth, I do not believe that he will be doing it personally, he will be doing it through a proxy, obviously. Why does that person not go to the Investment Centre and represent the President wherever those things are taking place while the board itself is running the process as they should, so that we do not have a timeframe where after a certain period we are moving now from the
President’s office to the Investment Centre offices where these things should be done.
I think the representative of the President should go and sit there, see how things are done. If he is not happy with anything, he can point it out there and have it sorted out. When he is satisfied that everything is now moving smoothly, he just excuses himself without having to put everything in the President’s Office. For your own information Minister, it might look okay for us here because we are used to these things but from outside the minute you say that investment is going to be in the President’s Office, they immediately begin to suspect that hmmm, those people have started again. Why should the President of the country be involved with private investment, so we are back again to corruption. Without them telling even you anything, there will just be no movement and you will be surprised. I think it is better to semblance of normalcy outside but the President still maintains that oversight but without having him appear as if he is the one running the show. Thank you Madam Chairperson.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you
Madam Chair. My assertion was not we are making a law that we want to amend tomorrow. Any law as long as it is there, if a need arises, it does not matter when you enacted that law, you will always try to update your laws to speak to what is obtaining at that particular juncture. What I was alluding to was that what we need to do now is we feel that the best way of doing it is to have an advisory board where we have a chief executive officer who is accountable to Parliament. Even when you talk about corporate governance, the CEO is still accountable to Parliament through the reports that he will produce so that it is covered. There is no violation of corporate governance laws in that regard. At the moment what we want to do to speed up investment, to speak to the current environment - this is the structure that will speak to that.
I heard also you saying let us do the right things at the right time. This is exactly what we are trying to do, to do the right thing at the right time by having an advisory board and a CEO who is accountable to Parliament. Exactly what you are speaking about is what we are trying to do. We had a one-stop centre that never took off. We are trying to correct that by ensuring that now we will have a one-stop centre that is a statutory board. If you go into the Bill, that centre will now be a statutory board and it can be enforced. Enforcement can be done through courts, unlike what it used to be when it was simply an administrative centre without any statutory authority. Now it is there in the Bill. Whatever reservations that you have what we are trying to do speak to what the Hon. Members are alluding to and I believe their fears must be allayed and we proceed in the manner that the Bill is like Madam Chair. I thank you.
HON. SEN. MAKONE: Madam Chair, I am not answered.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I answered the
question. You spoke about the one-stop centre that never took off. Perhaps you wanted me to allude to the fact that investors, the moment you mention the President’s Office, they are afraid. On the contrary, we had experiences in Rwanda where they have their investment centre in the President’s Office and they have done extremely well. It depends on who is manning the investment centre not to say it is a bad idea to have it in the President’s Office. The Rwandan example was then a sight to look at. They have done tremendously well but is housed in the Office of the President and the CEO reports directly to the President and he has oversight on everything that is happening.
From the experiences, it reduces corruption because people would be afraid that the President would be near to what is happening. On a daily basis or weekly basis he is given brief on what is happening. People will be kept on their toes. I believe that for now, based on the experiences that we have had on the contrary having it in the President’s Office can work to our advantage based on the experiences. We had the Portfolio Committee on Industry and Foreign Affairs, they visited and were satisfied that it is the way to go. I thank you Madam Chair.
HON. SEN. SHOKO: Can the Minister explain again where he says the Chief Executive Officer will be answerable to Parliament.
Where are we getting it here in the document?
HON. ZIYAMBI: We will get there.
HON. SEN. B. MPOFU: My question is just an extension. I am looking at 7(2) in particular, the third sentence, where it says Section 42, I think you meant section 43 but if you are looking at those reports, it says as directed by the Board. We are going back. Is the Board directing or advising? That will be the question but also it is supposed to be Section 43 not 42. So we are still writing in terms of the same corporate governance structure that I was talking about where the Board directs and here he is saying the Board advises. Just the same on sentence two, it is supposed to be subsection A (i) rather than 1 (a) instead. Thank you.
HON. ZIYAMBI: I think I agree. It is a typographical error. It is supposed to be section 43 and that we will correct. The way it is, it is correct. We want to capture that so that if the Advisory Board gives advice and the CEO does not take it, in the report it must reflect that advice was given; so it does not have discretion not to include it when the Board has said we gave you advice but you disregarded it but in the report, it must be indicated that it comes to Parliament. So the way it is crafted is very correct but I think we need to correct where it says section 42, I think it was a typographical when the Bill was being scrubbed by Parliament after it went through the National Assembly to indicate that it is section 43. I thank you.
HON. SEN. DR. MAVETERA: The very section which was
being looked by the Minister. I am a little bit puzzled as to why the Chief Executive should not take seriously recommendations made by a fully constituted Board for that matter and wait for annual reports. I do not know whether that is correct or are you saying we have got someone, a Chief Executive who just gets advice but is not bound and can do anything and we wait for the annual report to justify. If that advice was correct, we wait for us to read the mistakes and then to say advice was given.
I think if we need a Board, let us have a Board. If we do not need a Board let us not put structures to accommodate people to employ people? We want people who do the correct thing. If there is a Board, the function of the Board is to give strategic direction which should be actually followed by whoever is the Chief Executive, but not to say when you are given that strategic direction, you have got the liberty to say I do not want to listen to it and then we wait for an annual report. I think we cannot sit here and put such a system which will not work.
Basically, the argument of the Hon. Minister is to say we are actually trying to put a structure which does not have any binding on what is happening so why do we need to stress the fiscus in accommodating such people?
HON. ZIYAMBI: Hon. Chair, this is an Advisory Board that is different from the Board that is in this section. Secondly, the Advisory
Board may direct a special report on the CEO’s refusal to follow advice. So that report can be tabled before Parliament at any time. Then there is the annual report that is mandatory. So I do not see where the waiting time is. We want to have it legislated that the advice of the Board must be taken seriously. So, if we couch it in this manner, it means that before the CEO refuses, he will apply his mind to the advice and when he reaches a stage where he says I am not taking this advice, I am sure he would have considered it carefully. So this clause is actually empowering the Board for them to fill that whatever advice they are giving is going to be regarded seriously. I thank you.
Clause 7 put and agreed to.
On Clause 8:
HON. SEN. B. MPOFU: The composition of the Board, now this is an Advisory Board again so I am now thinking like an advisory rather than the actual Board. Now, if I was to think that way, I look at the type of people that are expected here. Mainly, five of them are going to be public sector at director level and then we have three from international. Can I get clarification on the public sector? Are we expecting these people to be people from the parastatals or its people with expertise like in different areas of the economy? That is the clarification I would want. Then if someone can look at section 8 (3), is section 17 and 18 compatible with this new version? Thank you.
HON. SEN. DR. MAVETERA: Section 8 (4), the issue of choosing the Chairperson of the Board. I had asked this previously to say why should not the Board sit when it is constituted then choose their Chairperson amongst themselves rather than to have a direct appointee?
HON. SEN. KOMICHI: Mine is section 8 (2), where it talks of the CEO being an ex officio member of the Board and the secretary to the Board. This one seems to be contradicting what we were all talking about. In this situation, the CEO is actually a subordinate of the Board because that is what actually happens in most Boards where the CEO becomes the secretary, he is not the boss of the Board but all along from page number one up to here, we thought that the CEO was going to be the head where he is going to be advised by the Board. In this situation, this statement does not mean that. I am sure there could be some bit of contradiction there and we need to correct the English around that area.
The sense actually is not agreeing with what we are talking about.
HON. ZIYAMBI: Thank you Hon. Chair. Hon. Mpofu spoke
about the five chosen from the public sector at Director level and above in line with the Entities and Corporate Governance Act. My understanding is that the public sector is different from the Public Service and public sector can include parastatals as long as it is a public entity. So, these persons can be chosen from that pool in that regard.
Then Hon. Sen. Mavetera, you were worried about the Minister appointing the Chairperson of the Board and why they should not choose one among themselves. We believe that the Minister responsible should choose the Chairperson of the Board who will chair in order to avoid them choosing among themselves. Why should they choose among themselves, the President can appoint and this is not an elected board where these members can be elected to this advisory board. If it was a board where the members were elected, then they will then elect one of their own, but these are people that have been appointed into that board. It is more like what you did with some independent commissions where the appointing authority appoints the Chairperson. It is consistent and I think in this regard, it is a good law as it is and if they were voted or elected, then perhaps they would need to appoint one of themselves and have an election to choose.
Hon. Sen. Komichi, the CEO needs to be in the board so that he can take into consideration and he will now be producing the reports of the board and taking care of the advice. So, we believe that the way it is consistent with what we want to happen to ensure that the board is supposed to advise him. There is a board and there is the agency, so you need to separate the board and the agency. The advisory board does not have a function of running the agency. So, the CEO will go into the board as the secretary, gets the advice and then he will apply it when he is running the agency.
HON. SEN. B. MPOFU: Thank you Madam Chair. All I was asking the Minister on 8 (1) (b) was to widen the scope of people that they can choose from to include private and public sector because there are people in the private sector that such a board will benefit from.
The second part is, I still feel that possibly the Minister should reconsider No. 2. The Chief Executive Officer, if he is going to have an advisory board, then he should chair the advisory board. The way it is written is actually more confusing because it is an advisory board – people who are advising him. He goes and sits there so that he can get advice from these people then it makes more sense than to have an advisory board that has its own chairperson, its own deputy chairperson and it is running on its own then the Chief Executive Officer comes as an ex-officio member. To me it does not make corporate sense. It will make sense if the Chief Executive Officer, because of the status that has been given by the Minister, becomes the chair of that board and if that board becomes just what it is, an advisory board and not a board in its own right like what it is now.
HON. ZIYAMBI: Thank you Hon. Chair. What he is suggesting is trying to smuggle in the board not to become an advisory board because the moment the Chief Executive Officer becomes the chair, how does it become an advisory board because he is chairing and he is responsible for what is coming out of that meeting and how can he then go out and say, I am disputing what I have deliberated and agreed to. He is an ex-officio producing reports and in that regard, somebody chairs, they make a decision – he does not have a vote. The moment we do it the way you want, I am afraid that we are trying to go through the back door to ensure that we make it not an advisory board but a board in
itself.
The private one is there on 1 (a) where we speak of those three persons. They are entirely from the private and we are not looking at the public sector. So, the private is catered for. So, there is 3 (5) which we feel is okay.
Clause 8 put and agreed to.
On Clause 9:
HON. SEN. SHOKO: Thank you Madam Chair. I want us to go
to No. 1 of section 9. It says, there shall be a Chief Executive Officer of the agency who shall be appointed by the President. On the President’s own authority, if the President is responsible for administering the Act, I would say, why do we not say, there shall be a Chief Executive Officer of the agency who shall be appointed by the President? Simple, because in any way, what we understand is, we have already been told to say the President is going to administer this one. Then, you say there shall be a
Chief Executive Officer of the agency who shall be appointed by the President in consultation with the Minister responsible for administering this Act, then we take off that they will administer and do this and that.
HON. B. MPOFU: This one is minor. It is 9 (2) where you talk of Section 6 (1) (b) and there is no section (1) (b), it is 7 (1) (b) I thank you.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you
again, I agree on that one. It is a typographical error, it was changed after the debate in the National Assembly. I want to thank you for that that was not captured correctly.
Hon. Shoko, we have Ministers in the President’s Office so the President may also decide to assign anyone at any point. This Clause is trying to cater for that to say even if it is in the President’s Office, there is a Minister who is there who has been assigned to do it who is housed in the President’s Office. The President decides to assign it to himself or a Minister in his office so this is just to make it clear to say that he can do it himself or he can assign a Minister after consulting that Minister.
HON. SEN. ENG. MUDZURI: Madam Chair, to me it is not
very clear if the President is administering it, it does not matter whether he goes through them because it is his appointee. There seems to be a contradiction where the Minister can appoint the advisory board and the President appoints the CEO, it must be just the President doing that, he can chose anyone still through him. I do not have the document but whilst I am listening, it is not very clear who is administering and once you mention the President’s Office, there is no need to mention the Minister. He appoints the CEO then the Minister appoints a board and an advisory board that advises the appointee of the President. It becomes problematic.
HON. ZIYAMBI: Thank you. Hon. Sen. Mudzuri if you go to
the definition of Minister, again it includes even the Vice President or the President when he is administering the Act himself. If you check that definition and what we are trying to say here is very consistency. I implore you to accept that what is there is very correct and we move to the next Clause. I thank you.
Clause 9 put and agreed to.
Clauses 10 to 19 put and agreed to.
On Clause 20
HON. SEN. MWONZORA: Mine is just a minor one Hon.
Minister. What this Clause is talking about is that the investors must abide by this Act and any other legislation in Zimbabwe. That is okay but they must also abide by all the laws in Zimbabwe. So, you can see that it is not including the common law. So, it is legislation in Zimbabwe as well as the laws in operation in Zimbabwe. I thought we should be clear.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair,
Hon. Sen. Mwonzora is pretty much aware that the common law has always taken to apply so you then don not need to legislate, to put that emphasis so the way it is, is the correct way.
Clause 20 put and agreed to.
On Clause 21:
HON. SEN. DR. MAVETERA: Thank you Madam Chair. I just
want to find out from the Minister, to me Clause 21 is of interest in the manner that of recent we have had so many investors coming and putting in quotations of their investments into our country without actually paying due support of the local communities. A good example is the Chiadzwa where all the diamonds have been exhausted but there is not even a tarred road. I think we need to put in place wherever it can be put, if it is hidden somewhere, to say that such infrastructure must be made available which is standard infrastructure.
We cannot have someone who just goes in the bush and actually make gullies, no access roads and all supporting infrastructure, I think we need to capture it rather than to leave it. We need to be specific to what we want. I remember one of the reasons why the Chinese were being accused of exploiting Africa and they said it is because Africans do not know what they want. They do not know how to state what they want. So, can we be explicit in what we expect as a community.
HON. SEN. B. MPOFU: In support of the colleague that has just spoken, I think there is something around community share ownership trust and investment share ownership trust. Can that also be included around this area. I know that the Minister might say that; because it is a law on its own it will apply but sometimes some of these responsibilities have got to be explicit. Unless they are explicit some will act and say that they did not know something like that existed
HON. SEN. SHOKO: It will be very good that this thing says one stop investment service centre that is on Section 5. I think what we need to do is, let us bring everything that the investor is supposed to be responsible for in this Act. You remember we are trying to bring in the Marriages Acts together; it is because we are saying the papers are too many. So when the investor comes, he picks this up; he knows that there is a responsibility that he should be incorporating. That is very important for our own people because when these people leave, they leave gullies and other bad things when there is no development at that particular place. So it is very important that let us have a one stop Act also that brings in the entire Acts that is talking about investment. I thank you.
HON. SEN. TIMVEOS: Hon. Minister, I am from Zvishavane. We have got the Chinese that are mining chrome, platinum and there is a chrome plant as well. However, these people are not doing anything for the community. I think when the chiefs complained, they ended up buying exercise books for that school called Mapandura Primary School.
So I think here, when you really explain to say you are coming in to invest; our laws are clear that minerals in a particular community must benefit the people of that area. When investors come in, they must at least build a school, fix roads of that area and other things that are tangible.
I just want the Hon. Minister to understand what I am saying so that when you are negotiating with these investors we also copy our Constitution and make sure that the community benefits. If you leave this Act hanging like this we will end up with so many gullies in the country and as a result, so many cattle will die.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon.
Chair. I want to thank the Hon. Senators for their debate on this clause.
Hon. Mavetera’s concerns; I believe that this law will correct what he is alluding to. It is going to correct that problem and the details can be left to agreements that will be made between the communities and the investor as well as regulations that will come out of this. We also have to be mindful that in trying to legislate, we should be cognisant that we have other existing Acts. That is why if you go to this, it alludes that in addition to their basic obligations in accordance with this Act and with all laws of Zimbabwe? So, perhaps we can produce a handbook on investment and the laws that govern but we cannot collapse all laws and other functions of ministries into one law. We cannot do that; we can come up with a handbook but laws must speak to each other. There are other laws like the Empowerment Act; there are provisions with regards to community share ownership that are there. So, what we are trying to do through this clause is exactly to solve the problem that you allude to and we will have to make sure that the agreements will speak to what you are saying as well as the regulations that will arise out of this particular Act.
Hon. Mpofu, you wanted us to have everything here in this Act; we cannot usurp the functions of other ministries like I said. Perhaps we can come up with an investment handbook that will then include all the related laws, how they relate to each other so that it becomes easier.
Also, remember that we are now coming up with a one stop centre where all the relevant ministries will be represented so that investors under one roof can consult and be able to be familiar with everything else. So, all the ministries and stakeholders will be represented. So your fears will be answered in that regard and allayed. The community trusts are dealt with in the Economic Empowerment Act.
Senator Timveos what you allude to is exactly what I am saying we want to address in this clause. The needs of individual communities differ, that is the reason why we want- when the agreements are being couched, the needs of specific communities are then captured in those particular agreements and we also produce regulations that will give a broad perspective of how these investors are supposed to act.
So, I believe this clause is speaking to what you are alluding to and also other pieces of legislation that are there will also help reinforce what we are all talking about. I want to thank you for the contributions and move that we pass this.
HON. SEN. ENG. MUDZURI: Hon. Chair, I just want to
propose maybe an (e) that shall say the investor shall comply with an investors handbook that will be available. I am saying that because we have to go through that handbook and ensure that all the laws are in one book. You cannot expect an investor to read all the laws when the handbook is not there. That handbook will now take into consideration environmental issues, corporate responsibility for an investor. That handbook must be within that room. If we put it there, we are sure that the handbook is availed.
HON. SEN. MAVETERA: The Hon. Minister has tried to answer
the question but I think my question was partly responded to. The issue
I am talking about is very critical in our country. I have talked about roads and schools - empowerment and social responsibility are different. those laws were there when Chiadzwa was being looted. The Chinese and the other friends came and mined diamonds and we have not benefited anything. Let us be specific. I hope the Minister will give due respect to this. I express my fears because we represent the people. What I am saying is Chiadzwa does not have a clinic when we actually had billions worth of diamonds that were looted out.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon.
Chair. I want to thank Hon. Mudzuri and say when I spoke about a handbook, it is very difficult to put a handbook here that will be produced by officials. What will be the legal status of that handbook? It comes problematic to say let us have a handbook unless if it is subjected to the Parliamentary process to give it the legal status. A handbook can be produced for ease administration of the agency and also regulations can help to ensure that we have a handbook that is produced to ensure that the process is done appropriately.
I want to turn to Hon. Sen. Mavetera and say in terms of our laws, investors even in mining have a prescribed fee that they have to pay to rural district councils. Our councils have not been doing that. What we have done now is the President has mandated the Minister of Mines and Mining Development to say if they have not to rural district councils, do not renew the licences. That is another way of empowering them. The law is there within the rural district council. It has to levy the mining companies. That money is used in the community where the mine is operating. So, we have provisions of the rural district council. We also have the Empowerment Act that governs the community trust that you allude to. Over and above that if a mining company is operating in a particular area within the jurisdiction of a certain rural district council and is using a road and that road is overused, the rural district council has the authority to summon them to tell them that they are supposed to repair the road. That is also available.
This clause is giving specific responsibilities like we mentioned preservation of the environment but over and above that we are saying other laws that govern how investors are supposed to operate are there and they have to be respected. The issue of compliance with the laws is different from legislating it. I gave the example where the President said the Minister of Finance and Economic Development has to ensure that there is proof that payment has been done. So, that is now compliance with existing legislation, which is what we hope going forward we have to ensure that it is done. That is where I agree with you.
In terms of preservation of the environment we have EMA. They are empowered to look into that. The rural district councils are also empowered. We have also have the Empowerment Act which governs that. Therefore I believe that we have sufficient legislation which unfortunately we cannot collapse in one legislation; we cannot codify it in a handbook as suggested by Hon. Mudzuri but that will be done at an operational level not at the legislative stage. So, I propose that we adopt the clause as it is Hon. Chair. I thank you.
Clause 21 put and agreed to.
On Clause 22:
HON. SEN. ENG. MUDZURI: On Clause 22 (3b), the Chief Executive Officer may impose such conditions on the issuance of the investment licence as he or she considers fit whether or not on the basis of any advice or recommendation tendered by the board in terms of paragraph (a). I am not sure once you give discretion totally as one considers fit, it is a very dangerous statement to say what he considers fit. He must comply. That is why I say someone must have some room of appeal and you consider your rule book which I have advised on (e) which I thought should be approved by Parliament so that conditions are all known. Parliament should have a proper supervisory role on whatever comes from the CEO. I find it dangerous to say as he sees fit.
Once you say this, the law becomes very difficult.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFIARS (HON. ZIYAMBI): Thank you
Madam Chair. The law allows for administrative review of any action done by anyone. If anyone is aggrieved, there are channels to follow. Besides, when you are given advice, advice is not binding. Again we are going round trying to smuggle something that we have already agreed on to say this is an advisory board. This is consistent with what the board is. He can refer to the board but this subsection is saying he has to apply his mind and he is not bound by the advise that he has been given. He can accept it or not accept it. It is very consistent. On your point where you say speak about Parliament, again the CEO produces reports which come to Parliament through relevant Minister or the
President. So again, that is covered because all the reports will come to Parliament and that is accountability to Parliament. In terms of advise, I am sure Hon. Mudzuri you will agree that when you solicit advise, it is advise. I thank you Madam Chair.
HON. SEN. MUDZURI: What I want intimating is the same thing on the same Clause. Hon. Minister, you advised earlier that the advisory board may direct the CEO and he must take that direction. Here you are saying as he sees fit irrespective. Maybe I am missing something but there is serious contradiction in my brain. From my memory, unless I missed something, in one of the Clauses earlier on, I cannot remember which one, you said you cannot have a board that fails to direct. Now you are saying as they see it fit. That is personal discretion. If that person is directed then he sees it fit, is that not contradictory? That is what I am saying.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFIARS (HON. ZIYAMBI): I think Hon.
Mudzuri did not get my earlier clarification, perhaps he was not in. It was – [HON. SEN. MUDZURI: Inaudible interjection.] -
THE CHAIRPERSON: With all due respect, you address the
Chair. You cannot answer the Minister when he is busy presenting.
HON. SEN. MUDZURI: I was talking here.
THE CHAIRPERSON: Hon. Mudzuri, I heard you.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFIARS (HON. ZIYAMBI): Madam Chair, what we were talking about are reports to Parliament at the request of the advisory board which is different from this. In any event, what he is alluding to, it does not mean each time you get advice, you get good advice. Sometimes you can get bad advice and you do not have to follow that advice because I had been given advice. That is the reason why we are saying, the board may request a report if they so wish can direct the CEO to say report to Parliament about this. I think he missed the point when we were discussing it in that regard. I move that we proceed Madam Chair. I thank you.
*HON. SEN. CHIEF NTABENI: Thank you Madam Chair. I stood because I realise my Chief Whip is here. You came with a double jacket. You came as the Minister of Industry and Commerce and as the Minister of Mines. Our Senators said a lot of good things. They talked as if they are not Zimbabweans. When we look at mining that is taking place in the communities, we are the custodians and we are saying there is a lot of environmental degradation that is happening. The artisanal miners are engaging in mining activities that leave a lot of these trenches open. That is why I am saying that you came wearing both the Minister of Mines jacket and the Industry jacket. Colleagues of mine debated well and acted as if they are the only Zimbabweans. We are all Zimbabweans. I kept quiet and decided to round up because when you debate as politicians, we do not want to be involved. It will seem like we are supporting a particular party. I thought I would say this as we are the ones who represent the people in the rural areas.
HON. SEN. TIMVEOS: The other problem – I just want to buttress what Hon. Sen. Chief Ntabeni has said. I am going to give the example of Zvishavane again. The Chinese after digging their holes, cows dying and children dying by falling in, they were called by the community to say, look you are not closing the holes. They said no, you do not need to talk to us, you must talk to the President. He is the one who brought us here. The community then kept quiet because the President is the last person. We have to manage the issue that the President has to be told. Obviously the communities will not go to the
President. They will just keep quiet. I am trying for us to balance that. *THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFIARS (HON. ZIYAMBI): Thank you
Madam Chair. I have heard the chief debating. This Bill is not from the Ministry of Mines or the Ministry of Industry, it is under the Office of the President. Issues to do with matters from the President’s Office require the Leader of the House to bring these Bills. Secondly, as I said to my Hon. chief, we have a number of legislation that interlinks. We have EMA, we have our local authorities and we also have the role of traditional leaders. If you look at this Bill on Section 21 (d) it talks about respect for our traditional laws and culture. If it had not been captured in the previous legislation, we have factored it in this legislation so that it will enable you to govern as traditional leaders.
On Sen. Timveos issue, this Bill is not there to regulate the mining sector only but it regulates all the investment that comes into the country. These are just there to give licenses. When you hear others saying that we were referred here by the President, they should comply with the Mining Act. The President does not regulate the Mining Act.
If it is someone who is into cooking oil manufacturing, they all go to this particular Bill. Each investor has its section. If you are into agriculture, there is Minister Shiri and it depends on which ministry you are coming in under. So the Bill will regulate all those incoming investors. I think Madam Chair, we have clarified this issue and we can proceed. I thank you.
Clause 22 put and agreed to.
Clauses 23 to 26 put and agreed to.
On Clause 27:
HON. SEN. B. MPOFU: I want to understand Clause 27 in the context of companies that have been sold. Does it mean that a company will need to reapply?
HON. ZIYAMBI: The mischief that we envisage is there are people who shop and come to look for a license which they will never use and then sell at an exorbitant price without doing anything.
Company takeovers are normal procedures that will be done to ensure that there is a company takeover but there are some that will come to say I want to do this investment and then use that license to sell it. So this clause is trying to mitigate against that. I thank you Hon. Chair.
Clause 27 put and agreed to. Clauses 28 to 29 put and agreed to On Clause 30:
HON. SEN. B. MPOFU: There are two issues that I wanted addressed on Section 30. The first one, in this Section, we see clearly that there is the word ‘Minister’ then I actually went back to the definitions that are there that the Minister alluded to earlier on when my colleague raised the issue of the President. Under Section 2 which is interpretation, it does clearly state what is meant by ‘Minister’ but in no part of this legislation is a definition of ‘President’. Is it the President of
Senate or the President of the country? In my view, where it is written
‘President’ anywhere in this particular legislation, we should substitute with the ‘Minister’ because the ‘Minister’ has been appropriately interpreted. Thank you.
THE ACTING CHAIRPERSON: I think the Constitution when
it states the President, it means the President of the State. Let us avoid going round and round, we have been talking about these Ministers for quite a long time now but it keeps on coming back. I do not know whether people do not understand what the word ‘Minister’ means
really.
HON. ZIYAMBI: I will respond specifically to Clause 30, it refers to the Minister responsible for Finance. So what he is alluding to is not included in this clause. This clause speaks about the Minister of Finance. I thank you.
Clause 30 put and agreed to.
Clauses 31 to 47 put and agreed to.
On Clause 48:
HON. SEN. B. MPOFU: I just want to highlight something that needs to be done after this whole process has gone through. The only problem is that, if it is highlighted after, it might not stick because it was not agreed to. In particular, I think when the sections were shifted, they were not all shifted properly. I have realised that I have quite a number of them that were not shifted properly. I do not know how that can be addressed in a way that at the end, ‘this agreed to’ is not going to affect that noble contribution.
I wanted to highlight - it is Section 48 (1) where it says repeal law, means the Act repealed by Section 46 (2); it is supposed to be 47. Then, if you go down on Part 2, towards the end it says 46. (2), it is supposed to be 47. If you go down on 3 again, 46 and so on, that is why I said if this has been done because before that I have realised that there are some more at the back here that were not captured properly and I am happy to write them down if the Minister allows me to.
HON. ZIYAMBI: Hon. Chair, when we have finalised, I think that the textual corrections are not amendments and the staff, the Counsel of Parliament will go through whatever we have done for corrections. Like I said, when we did this Bill in Parliament, our staff here, the Counsel’s office had to put together everything that we did.
Sometimes errors happen but before it is sent to the President for assent, everything will be cleaned up appropriately and we will have a good law. I thank you for that observation.
Clause 48 put and agreed to.
Clause 49 put and agreed to.
First to Fourth Schedules put and agreed to.
HON. SEN. SHOKO: Madam Chair. I think I need to just point
out something. On page 40, please, it is minor and it helps. There, it should not be “BUT”, it should be “BOT” – build, operate and transfer.
Thank you.
House resumed.
Bill reported without amendments.
Third Reading: With leave, forthwith.
HON. SEN. MAKONE: On a point of order Mr. President, I thought it was with amendments. We are accepting this Bill with amendments that we agreed to in this House.
THE HON. DEPUTY PRESIDENT OF SENATE: The
Chairperson of the Committee reported the Bill without amendments but I am advised that there were typographical and textual errors which are going to be corrected. That is what I understood.
HON. SEN. MAKONE: If that is the understanding, then I do not have any problem Mr. President.
THIRD READING
ZIMBABWE INVESTIMENT DEVELOPMENT AGENCY BILL [H.
- 2A, 2019]
THE HON. MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Mr. President, I
now move that the Bill be read the third time.
Motion put and agreed to.
Bill read the third time.
THE HON. MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr.
President, I just rose to thank the Hon. Senators for the lively debate. I want to thank those that highlighted some of the issues that we need to correct in terms of textual and typographical errors. It shows that Hon. Senators are reading the Bills. I want to congratulate the House for this milestone in passing the Zimbabwe Investment Development Agency Bill which will change the nature of how investments are being done in the country. I want to thank you sincerely all the Hon. Senators for a job well done – [HON. SENATORS: Hear, hear.]
HON. SEN. CHABUKA: On a point of order Mr. President. I
am holding this Order Paper, it contains yesterday’s names of Hon.
Senators who were present, I was not here yesterday on 3rd December, 2019, I had gone to attend a funeral. I urge the Papers Office to remove my name. I am a member of a political party; I was not part and parcel of the Bill of the Minister of Finance.
THE HON. DEPUTY PRESIDENT OF SENATE: Your point
is noted, you could have done it another way rather than interrupting the business of the House.
On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the Senate
adjourned at Twenty Four Minutes past Four o’clock p.m.