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NATIONAL ASSEMBLY HANSARD 28 November 2019 46-10
PARLIAMENT OF ZIMBABWE
Thursday, 28th November, 2019
The National Assembly met at a Quarter-past Two o’clock p.m.
(THE HON. SPEAKER in the Chair)
ANNOUNCEMENTS BY THE HON. SPEAKER
APPOINTMENT AS ZANU PF DEPUTY CHIEF WHIP
THE HON. SPEAKER: I have to inform the House that Hon. C.
Mutambisi will serve as the ZANU PF Deputy Chief Whip – [HON.
MEMBERS: Hear, hear.]
APPOINTMENTS TO REGIONAL AND INTERNATIONAL BODIES
THE HON. SPEAKER: I have to inform the House that Hon. T. Mnangagwa will serve in the Inter-Parliamentary Union (IPU). I also have to inform the House that Hon. Ndiweni will serve in the SADC-PF
Regional grouping – [HON. MEMBERS: Hear, hear.]-
HON. CHIKWINYA: I rise on a motion of privilege in terms of section 68 (d) and 69 read respectively. Hon. Speaker, I am a Member of
Parliament and I am deployed to two Committees – the Mines and
Mining Development and the Media, Information and Broadcasting Services. For the past two weeks Mr. Speaker Sir, Committee business has been disrupted by Members who have chosen to lay upon their own ground rules, therefore disturbing Committee business. As of today, the Committee on Media sat not more than five minutes when certain Members chose to dislodge the Chairperson and therefore disrupting the Committee business.
We operate as a caucus from my party and the reports that I am receiving is that all the Committees which are chaired by Members of the MDC are being disrupted from doing their business. It is my humble submission Hon Chair, that Committees are sub sects of the House and therefore our business feeds into the House which you chair and any disturbance to such is a disturbance to the business of the House.
I therefore call upon your Chair to set up a Privileges Committee to investigate these Members who are disrupting your Committees and put to an end this disruptive behaviour which we have seen in the past two weeks. I so move.
THE HON. SPEAKER: I hear you Hon. Member. The events are symptomatic of a bigger problem which the Committee on Standing
Rules and Orders is seized with and it will look into it in detail. I thank you.
*HON MATANGIRA: I rise on a point of privilege to register my concern. When I joined Parliament, I took an oath as a Member of Parliament that I would respect and honour the President. Every Member of the House is supposed to do the same. I would like to say that those who do not recognise the President should just stay out of the House. I thank you.
THE HON. SPEAKER: What the Hon Member has said I thought
I had covered it already in my first ruling that these matters are being looked into by the Committee on Standing Rules in a broader manner.
HON. MATHE: On a point of privilege. My point of privilege is on the continuous running of the bar during sittings of Parliament. Most Members especially from the other bench continue to go to the bar and drink when Parliament is sitting. If we continue having that situation, this House is not going to function properly because most of our Members would be going there to drink and when they come back here they make noise which affect the people we represent. These Members come here to disrupt and disturb the proceedings of this House and at the end of the day, you find that even the rulings that you make will not be listened to. We come here to listen to drunken people and we are not going to tolerate this. Can the bar be closed up to the end of the day? I thank you.
THE HON. SPEAKER: I wish to say that the bar should not be opened during sittings of the House. However, if that administrative arrangement has been violated, I will revisit that with the Clerk of Parliament, otherwise it should be closed.
HON. BITI: I rise on a point o privilege in terms of Rule 68 of the esteemed Standing Orders of this august House. The Budget Statement was presented by the Minister of Finance and Economic
Development on 14 November 2019. In terms of Section 305 of the Constitution, when the Budget Statement is presented there must simultaneously be presented the estimates of revenue and expenditures of Government for the next financial year which are contained in the Appropriation Bill.
We are concerned that up to today, the Appropriation Bill has not been tabled; it is not available upstairs in the Papers Office. The
Finance Bill 2020 has also not been tabled. Mr. Speaker, whilst the Blue Book has been tabled, it contains figures that are different from the statement, which makes the provision of the Appropriation Act so important. I implore Hon. Speaker that you direct the esteemed Minister of Finance and Economic Development to present as a matter of urgency, and to table as a matter of urgency, the Finance Bill and the
Appropriation Bill. I thank you Hon. Speaker.
THE HON. SPEAKER: I will check with the Clerk of
Parliament and ensure that the necessary papers are provided for.
HON. MADHUKU: Thank you Mr. Speaker Sir. I rise on a point of privilege and it concerns the issue of Constituency Development Fund (CDF). I think most Hon. Members did submit the requisite papers which are required as per the checklist for us to receive the CDF. We also made submissions whereby we submitted photocopies of signatories to our account to enable Parliament to come up with vendor numbers. We are made aware that the funds have been released by Treasury, but up to now we have not received the funds. Our worry is that in view of the fact that the prices are increasing day by day, we think we are going to lose out, especially with some suppliers being attacked by the festive euphoria. We think we are going to lose out in terms of the purchasing power of the money. It is my plea Mr. Speaker Sir, if we can be able to get the money so that we make use of what is due to us. Thank you Mr.
THE HON. SPEAKER: Hon. Madhuku, I am informed that the
committee on CDF is currently meeting to finalise the logistics.
VETERANS OF THE LIBERATION STRUGGLE BILL [H. B.15,
THE MINISTER OF PRIMARY AND SECONDARY
EDUCATION (HON. MATHEMA) on behalf of THE MINISTER OF DEFENCE AND WAR VETERANS presented the Veterans of the
Liberation Struggle Bill, [H. B.15, 2019].
Bill read the first time.
Bill referred to the Parliamentary Legal Committee.
LEAVE TO MOVE FOR SUSPENSION OF STANDING ORDER
NOS. 51, 62 (2) AND 139
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr.
Speaker Sir. I move that the provisions of Standing Orders Number 51,
62 (2), 135, 136 and 139 regarding the automatic adjournment of the
House at five minutes to seven o’clock p.m. on sitting days other than a Friday, and at twenty-five minutes past one o’clock p.m. on a Friday,
Private Members’ motions taking precedence on Wednesdays after Question Time and that Question Time shall be on Wednesday; the referral of Bills to Portfolio Committees, Procedures in connection with Parliamentary Legal Committee and stages of Bills respectively, be suspended for today and for the remaining series of sittings in respect of the following:
- Business relating to the Budget and the Committee of Supply; ii. The Finance Bill; iii. The Appropriation Bill, (2019); iv. Zimbabwe Investment and Development Agency Bill, [H. B. 2,
- Money Laundering and Proceeds of Crime Bill, [H. B. 4, 2019]; and vi. Coroner’s Office Bill, [H. B. 5, 2019].
Motion put and agreed to.
ZIMBABWE INVESTMENT DEVELOPMENT AGENCY BILL [H.
- 2, 2019]
Second Order read: Committee Stage: Zimbabwe Investment
Development Agency Bill [H. B. 2, 2019].
House in Committee.
On Clause 45 (now Clause 46):
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr.
Chair. I am proposing the following amendments – [HON. MEMBERS:
Inaudible interjections.] –
THE DEPUTY CHAIRPERSON: May I have less noise in the
House Hon. Members.
HON. ZIYAMBI: I am proposing the following amendments,
On page 2 of the Bill, delete sub-clause (1) in line 44 the words
‘after consultation with the Board’ and substitute ‘after consultation with the Chief Executive Officer and the Board’.
Amendment to new Clause45 (now Clause 46) put and agreed to New Clause 45 (now Clause 46), as amended, put and agreed to. On Clause 47 (now Clause 48):
HON. K. PARADZA: Thank you Hon. Chairman. Yes, that is our amendment Hon. Chairman. We are feeling as a Committee that those licences which are already in operation under Zimbabwe Investment Authority (ZIA) and Zimbabwe Special Economic Zones Authority (ZimSEZA) should just continue until they expire.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFIARS (HON. ZIYAMBI): Thank you Hon.
Chair, I want to substitute what they have said and request that we disregard what he has said, but basically it is more or less the same as the amendment that I am proposing.
So Hon. Chair, I am proposing that on Clause 47 on page 24 of the
Bill that we insert after line 38 the following-
‘(8) Any premises declared to be a special economic zone in terms of General Notice 675 of 2010 shall continue as such until the expiry of licence in relation thereto.’
Amendment to Clause 47 (new Clause 48) put and agreed to.
New Clause 47, (now Clause 48), as amended, put and agreed to.
On Clause 48 (now Clause 49):
HON. K. PARADZA: Thank you Mr. Chairman. Our feeling as a Committee is that those employees who are already under ZIA, ZimSEZA and those who qualify can be employed by the new agency but then our worry is what happens with those who do not qualify. What is the agency going to do with those employees because we cannot be a cruel country to throw them in the streets? So there must be an arrangement to make sure that they are catered for.
Where we went, Mr. Chairman, Rwanda, the situation is that all those who could not fit into this new agency were taken up within the civil service but that arrangement could be different here. We want the Minister to explain what they are going to do with those employees who are not going to be swallowed in the Agency? Thank you.
HON. ZIYAMBI: Thank you Hon. Chair. I hear the Chair, but however, we have made several amendments that should be consistent with what we are doing because we changed the Agency to ZIDA. So, I am proposing the following amendments as opposed to what he is proposing. We are proposing that we amend Clause 48, on page 24 of the Bill, we delete from sub-clause 2, the word “Agency” where it occurs for the first time and substitute with the “Chief Executive Officer of the Agency”. On page 25 of the Bill, delete sub-clause (6) and substitute with the following sub-clause “(6), Subject to the consent of the employees concerned, the Chief Executive Officer of the Agency may engage such of the persons who were employed by either of the former Statutory corporations as the Chief Executive Officer believes are necessary for the uninterrupted provision of the services (now provided by the Agency) which had been provided by them,”.
On page 24 of the Bill, delete from sub-clause (7) the word “the board” on line 30 and substitute “Chief Executive Officer of the
HON. K. PARADZA: Sorry Chairman. I hear the Minister but what are we going to do with those employees who are going to lose their jobs – what are we going to do with them?
HON. ZIYAMBI: The relevant laws will apply as to the winding
of that. It is provided for in another law and we cannot put it here.
Amendments to Clause 48 (now Clause 49) put and agreed to.
Clause 48 (now Clause 49) as amended, put and agreed to.
First Schedule put and agreed to.
On Second Schedule:
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair, I
propose that on line 32 of that schedule, we substitute where it says
“three and we substitute with “five”.
Amendment to Second Schedule put and agreed to.
Second Schedule, as amended, put and agreed to.
Third and Fourth Schedules put and agreed to.
Bill reported with amendments.
Bill referred to the Parliamentary Legal Committee.
MONEY LAUNDERING AND PROCEEDS OF CRIME
AMENDMENT BILL [H. B. 4, 2019]
Third Order read: Adjourned debate on motion on the Second Reading of the Money Laundering and Proceeds of Crime Amendment Bill [H. B. 4, 2019].
Question again proposed.
HON. MHONA: Thank you Hon. Speaker Sir. Your Portfolio Committee on Budget, Finance and Economic Development is tabling this report on the public hearings on Money Laundering and Proceeds of Crime Amendment Bill [H.B. 4, 2019].
Section 141 of the Constitution of Zimbabwe mandates Parliament to engage the general members of the public in its legislative processes and ensure that all interested parties are consulted about Bills being considered by Parliament. Thus, in fulfillment of this constitutional provision, the Portfolio Committee on Budget, Finance and Economic
Development conducted public hearings on the Money Laundering and Proceeds of Crime Amendment Bill (H.B. 4, 2019), which was gazetted on the 5th July 2019. The public hearings were held in Harare, Mutare, Gweru and Bulawayo from 9 September to 12 September 2019. The consultations begun by a Committee meeting in the Senate Chambers on
9 September 2019 to help the Committee to unpack and understand the
Bill. The meeting was co-hosted by Parliament of Zimbabwe and Transparency International Zimbabwe (TIZ).
2.0 Background to the Bill
The Money Laundering and Proceeds of Crime (Amendment) Bill, seeks to amend the Money Laundering and Proceeds of Crime Act (Chapter 9:24). The amendments were initially effected through
Presidential Powers on 9 November 2018 under Statutory Instrument 246 of 2018. The Statutory Instrument was issued in line with Section 6 of the Presidential Powers (Temporary Measures) Act (Chapter 10:20), which usually lasts for six months, upon which the requisite law is enacted. However, the regulations expired on 9 May 2019 after the lapse of six months, hence the need to urgently amend the law to cater for the affected provisions. The amendment to the Bill is very progressive as it will further strengthen the provisions in the Act to combat corruption, money laundering and terrorist financing. It will also ensure that the key and strategic institutions in fighting corruption are effectively empowered to undertake their mandate.
Given that this was a technical Bill, the Committee was strategic in its engagement processes by targeting the key stakeholders affected by the Bill namely; Zimbabwe Revenue Authority, Judicial Service
Commission, Zimbabwe Anti-Corruption Commission, Transparency International Zimbabwe and the Zimbabwe Republic Police. In addition to that, the members of the general public were as well invited to submit their input on the Bill in line with the constitutional requirements. Thus, the Committee was able to receive diverse contributions from the key stakeholders and the members of the public. Generally, the Bill was widely accepted by the members of the public who supported the proposed amendment with some additional proposals to strengthen the Bill. In line with that, the Committee would like to thank in particular,
Transparency International Zimbabwe, Zimbabwe Revenue Authority and the general members of the public for their valued input during the public consultations, which forms part of this report.
4.0. Generals Comments and Observations raised by the members of the public
4.1. Clause 37 (a): Enforcement Authorities
The members of the public welcomed the provision to empower the Zimbabwe Anti-Corruption Commission (ZACC), Zimbabwe Revenue Authority (ZIMRA) and Zimbabwe Republic Police (ZRP), who are the “enforcement authorities” in the Bill, with the powers to legally bring to account anyone suspected of flouting the provisions in the Act. The members of the public implored on ZACC, ZIMRA and ZRP to exercise their mandate without fear or favour and to remain nonpartisan in discharging their mandate for the good of the nation. The members of the public also called upon the enforcement authorities to ensure that all reported cases of corruption are investigated and cleared within a given space of time. It was proposed that timeframes would guide the enforcement authorities to perform their mandate and ensure they bring closure to all reported cases. An example was given in Mutare of a businessman whose funds were seized by the police in the process of investigations and after the case was cleared, the businessman failed to recover his money and to date, none of the responsible authorities are liable to the loss. Lastly, members of the public further submitted that it was important for all these institutions to operate based on performance contracts which set out their targets per annum in terms of handling cases of money laundering and proceeds of crime. Performance contracts would ensure that the institutions deliver tangible results.
4.2. Clauses 37(b): Unexplained Wealth Order (UWO)
The members of the public welcomed the introduction of the UWO as an investigation tool. The Bill mandates only the High Court to issue an UWO in respect to contraband property or ill-gotten wealth. The purpose of the UWO is to compel the respondent to explain the source of his or her wealth in the event that there are reasonable grounds to suspect that the wealth was acquired through illegal means. Of importance to note is Section 37B (1) (b) which stipulates that before issuing an UWO, the High Court must be satisfied that
“… the value of the property is greater than ten thousand United
States Dollars or its equivalent in any currency.”
While members of the public acknowledged that corruption happens at all levels ranging from low profile to high profile cases, stipulating a figure of ten thousand United State Dollars or its equivalent in any currency in the Bill was problematic. It was argued that the figure was too low and would keep the enforcement authorities pre-occupied by petty corruption cases instead of the mega deals. Thus, it was recommended that the value be reviewed upwards to probably over fifty thousand United States dollars.
4.3. Clauses 37 (c): Cases of Non-Compliance
The Bill provides for cases of non-compliance, which stipulates that any cases of non-compliance by a respondent to the UWO implies that the wealth or property is presumed to be tainted. However, the members of the public acknowledged with concern the lack of a penalty on anyone who fails to comply with the UWO. Thus, it was suggested that the Bill should provide for measures to be pursued by the enforcement authorities in the event that one fails to comply with an UWO.
4.4. Clause 37 (e): Penalty for Making False or Misleading Statements in Response to UWO
The members of the public welcomed the provision to penalize anyone who makes false or misleading statements in relation to responding to the UWO. However, it was noted with concern that putting a value of USD65 000 or equivalent was problematic. It was argued that USD65 000 would be too much for someone who falsely account for wealth or property valued at less than that amount, or it might be too little for someone involved in mega deals, hence it was proposed that the Bill state a certain percentage of the value of the property under consideration as the penalty.
4.5. Clause 37 (o): Compensation for Victims
The members of the public welcomed the provision to compensate the victims affected by the freeze orders issued in terms of the Bill. The Bill provides that an application must be made to the High Court within three months from the date of discharge of the freeze and the court may order compensation if necessary. However, members of the public noted with concern that while there is a timeframe to lodge an application for compensation, there was no timeframe stated for the responsible authority to pay the compensation, hence it was recommended that the Bill set a timeframe for the authorities to compensate the applicant once a determination is made by the High Court.
4.6. Sharing of information between the enforcement authorities
The members of the public submitted that there must be a clause in the Bill to facilitate and expedite the sharing of information between and among the members of the enforcement authorities. It was proposed that for the effectiveness of the institutions to discharge their mandate, there was need to enable them to share information as they undertake their investigations. Thus, it was recommended that there be a provision in the Bill to enhance sharing of information within a stipulated timeframe to quicken the investigation processes.
4.7. Capacity Building
The members of the public noted that the concept of money laundering and terrorist financing was very technical in nature and therefore required the capacitation of all key stakeholders in fighting the menace. The members of the public noted that the cases involving money laundering were on the rise in Zimbabwe and involving complicated transactions which require well trained officials to handle the incidents. It was therefore proposed that the court officials such as the prosecutors and magistrates, ZIMRA, ZACC and Financial
Intelligence Unit (FIU) officials be continuously capacitated so that they are able to monitor and investigate such cases when brought before them. It was also proposed that the enforcement authorities must also take the responsibility to educate the members of the public about the effects of money laundering and terrorist financing on the economy.
4.8. Strengthen the Asset Declaration Laws (Public Officials
and Non-Governmental Organisations)
Members of the public highlighted the need for all public officials to declare their assets in a transparent manner, which in turn enhances the accountability process. It was submitted that the process to declare assets must be done within a specified timeframe once one is hired or elected to be a public official. Other members of the public felt that the idea of declaration of assets must also be extended to NGOs and other key institutions, including churches so that they declare their sources of income. Members of the public felt that this was critical in curbing the laundering of proceeds of crime, especially the huge transactions involving big organisations.
4.9. Informal Sector
Members of the public were concerned by the fact that about 70% of the Zimbabweans are operating in the informal sector where the bulk of the transactions are largely informal. It was therefore noted that the application of the Bill in terms of requiring one to explain the sources of one’s wealth might be problematic. It was noted that many people operating in the informal sector hardly maintain bank accounts and books of accounts, hence called upon the Government to formalize the informal sector.
4.10. Whistle Blower and Witnesses Protection Legislation
The members of the public felt that the implementation of the Bill might be a challenge in the absence of the whistle blower and witnesses legislation. The question that was asked by the members of the public was on how the Bill will protect the whistle blower? The reporting of the cases of money laundering and proceeds of crime activities heavily relies on the whistle blower hence the need to protect them from victimisation and abuse. For example in South Africa, a person who reports corruption will get the legal protection that he or she deserves to secure his or her safety when proven that his claims are true. This provision is provided for under the ‘Protected Disclosures Act of 2000,’ which was passed by the government to protect the lives and even properties of ‘whistle blowers’ in South Africa.
4.11. Financial Intelligence Unit (FIU)
Members of the public noted that in 2018, during the amendment of the Money Laundering and Proceeds of Crime Act which established the FIU, they had proposed that it be housed outside the Reserve Bank of Zimbabwe (RBZ). Thus, in line with that, members of the public expressed concern over the fact that the FIU remains under the ambit of the Reserve Bank of Zimbabwe as a department despite having recommended that it be an independent institution. While they supported that the FIU was established as an autonomous body in terms of the law, its operational independence is not guaranteed as long as it is under the RBZ. Members of the public alleged that the RBZ is at the centre of the thriving parallel market in Zimbabwe hence the FIU is compromised in terms of monitoring and investigating the institution. Thus, it was recommended that the Unit be an independent institution reporting directly to a board and not to the Governor of the RBZ.
4.12. Equality before the Law
Generally, the members of the public reiterated the need for the law to be applied equally, fairly and in a transparent manner. It was proposed that no one should be above the law. Members of the public pointed out that the application of the law must not be selective but must apply equally to every Zimbabwean as well as investors coming to invest in Zimbabwe.
4.13. Typos relating to the Bill
The following observations were made in terms of typo errors in relation to the Bill. It was noted that there was a repetition of a clause under Section 37I (1) and Section 37I (4). One of the provision must be removed. The Bill has errors on the numbering of the provisions. Clause
37B appears twice but with different headings as follows; 37B
‘Unexplained Wealth Orders’ and another 37B ‘Requirements for Unexplained Wealth Orders’. Therefore, this must be rectified.
5.0 . Committee Observations
5.1 The Committee welcomed the new provision re-defining the term
‘enforcement authorities’ which now refers to the Zimbabwe Anti-
Corruption Commission (ZACC), Zimbabwe Revenue Authority
(ZIMRA) and Zimbabwe Republic Police (ZRP). This new
insertion would enhance the roles and functions of the authorities as stipulated in the Bill and ensure they perform their mandate effectively.
5.2 The Members of the Committee noted with concern the value of property which warrants for the issuance of an UWO by the High Court, which is stated at Ten Thousand United States Dollars (10 000 USD). The Committee concurs with the submissions received from the members of the public and the stakeholders that the value of ten thousand United States dollars (10 000USD) was too low, hence requires a review upwards or categorisation.
5.3 The Committee observed that the suggested penalty of Sixty-Five Thousand United States Dollars (USD65 000) for making a false or misleading statements in relation to UWO was difficult to implement, especially in cases whereby the value of the property under consideration is below the amount or is more than the amount.
5.4 The Committee noted with concern the absence of timeframes for the authorities to compensate the victims affected by the freeze orders issued together with the UWOs. It was observed that the Bill only sets out a timeframe of 60 days for responses to an UWO and another 60 days for an applicant to apply for compensation after the freeze has been discharged. However, the Committee observed that there was no timeframe set for the authorities to compensate the victims once it has been granted by the High Court.
5.5 The Committee noted the need for a provision to facilitate the sharing of information between and among the various agencies involved such as the banks and enforcement authorities to quicken up the investigation processes. It was noted that some of the institutions are bound by the Official Secrecy Act and therefore may not divulge any clientele information to another party.
5.6 The Committee shares the same sentiments with the members of the general public who called upon the Government to promulgate Asset Declarations Laws in line with Section 198 of the Constitution as measures to enhance transparency and accountability, especially of public sector officials and politically exposed persons. The members of the Committee felt that declaration of assets by the Government officials and politically exposed persons must be conducted within a stipulated timeframe once one is hired or elected into a public office. This should not be left at the discretion of the institution hiring or working with the official.
5.7 The Committee also observed that there was need for the Government to establish mandatory public registers that disclose the beneficial ownership of trust funds and companies to make it more difficult and less attractive for people to benefit from the proceeds of corruption and crime.
5.8 The Committee concurs with the observation raised by the members of the public on the urgent need for the enactment of the whistle blower and witness protection legislation to support the implementation of the proposed provision in the Bill.
5.9 The Committee noted the concerns raised by the members of the public regarding the independence of the FIU. The Committee
Members highlighted that during the last session of the Eighth Parliament, its counterpart Committee tabled a report on the proposed amendments to the Money Laundering and Proceeds of Crime Bill in 2018 which created the FIU. In the report, the
Committee had recommended for the removal of the FIU from the Reserve Bank of Zimbabwe as measures to enhance its operational independence in monitoring suspected cases of financial terrorism and money laundering. However, this proposal was not taken on board. The Committee noted that across the globe, FIUs are either situated within the Ministry of Finance, Central Bank or established as a stand-alone independent body.
5.10 The Committee is greatly disturbed by the abuse of the Eco Cash platform by the money changers and those who hoard cash and in
turn sell it to the ordinary citizenry. It was observed that the Eco Cash platform was contributing significantly to the financial sector challenges, hence the need to engage Econet Company and the RBZ over the matter. Members of the Committee noted with concern the daily transaction limit of 50 000RTGs, which is too high and therefore promoting the parallel market to thrive.
6.0 Committee Recommendations
Having carefully considered the views submitted before it by the various stakeholders and the general members of the public and noting its own observations, the Committee submits the following recommendations;
5.11 Value for issuance of UWO: That the value of “…Ten Thousand
United States Dollars (10 000USD)” for the issuance of an UWO appears too low and may be reviewed upwards to about “…fifty thousand United Stated Dollars (50 000USD)” or that the values be categorised to cater for all classes of corruption ranging from low to high profile cases.
5.12 Penalty for Making False or Misleading Statements: That the Bill stipulates a certain percentage to be calculated as penalty for making any false or misleading statements in relation to an UWO which must be calculated based on the value of property under consideration.
5.13 Timeframe for Payment of Compensation: That a timeframe of 60 days be set out in the Bill mandating the enforcement authorities to pay the compensation upon the issuance of a determination for compensation by the High Court. This is critical so that the victims are not prejudiced of their compensation and are able to sue the authorities in the event that the compensation is not paid on time.
5.14 Sharing of Information: That a provision be put in place to facilitate the sharing of information between and among the various agencies and enforcement authorities investigating cases of money laundering and proceeds of crime as measures to quicken the investigation processes.
5.15 Whistle Blower and Witness Protection Legislation: That the Government prioritise the enactment of the whistle blower and witness protection legislation as a matter of urgency to support the implementation of the proposed provisions in the Bill.
5.16 Financial Intelligence Unit (FIU): That the FIU be removed from the RBZ and be a stand alone independent body as measures to enhance its operational independence. This is important given that the majority of the people in Zimbabwe do not have confidence in the financial sector, in particular the Central Bank.
5.17 Asset Declaration Laws: That the Government urgently promulgates asset declaration laws in line with Section 198 of the Constitution to enhance transparency, accountability and boost citizens’ trust in public administration.
5.18 Capacitation of Enforcement Authorities: That Government adequately fund these institutions to enable them to effectively discharge their mandate.
The Bill basically seeks to address some of the financial crimes that bedevil the economy. The introduction of UWOs rather marks a new era in fighting corruption in Zimbabwe. The concept of
‘unexplained wealth order’, though familiar in other jurisdictions is somewhat unique in Zimbabwe and this is commendable. The amendments proposed in the Bill to empower of the enforcement authorities namely; ZACC, ZIMRA and ZRP to issue an UWO to anyone suspected of flouting the Money Laundering and Proceeds of Crime Act is plausible. This indeed would enhance their effectiveness in discharging their mandate. Thus, the Committee fully supports the passage of the Bill in the august House as it will go a long way in tackling cases of money laundering and combating financing of terrorism in Zimbabwe.
7.0 Committee’s Recommendations
Having carefully considered the views submitted before it by the various stakeholders and the general members of the public and noting it own observations, the Committee submits the following recommendations;
7.1 Value For Issuance of UWO: That the value of “...then thousand United States dollars (10 000USD)” for the issuance of an UWO is too low and must be reviewed upwards to for all classes of corruption ranging from low to high profile cases.
7.2 Penalty for Making False or Misleading Statements: That the Bill does sets out a certain percentage to be calculated as penalty for making any false or misleading statements in relation to an UWO which must be calculated based on the value of property under consideration.
7.3 Timeframe for Payment of Compensation: That a timeframe of 60 days be set out in the Bill mandating the enforcement authorities to pay the compensation upon the issuance of a determination for compensation by the High Court.
7.4 Sharing of Information: That a provision is put in place to facilitate the sharing of information between and among the various agencies and enforcement authorities investigating cases of money laundering and proceeds of crime.
7.5 Whistle Blower and Witness Legislation: That the Government prioritise the enactment of the proposed provisions in the
7.6 Financial Intelligence Unit (FIU): That the FIU be removed from the Reserve Bank of Zimbabwe as measures to enhance its operational independence. I thank you Mr. Speaker Sir.
HON. BITI: I rise to make my contribution on this important Bill
– the Money Laundering and Proceeds of Crime Amendment Bill. Hon. Speaker Sir, corruption has become endemic and cancerous in our country and it is important that Parliament plays its role in also fighting corruption.
I submit however that what we actually need as a country is for the
Government through the Minister of Justice, Legal and Parliamentary
Affairs to actually:-
- Harmonise all corruption laws – the Corruption Act, the various provisions dealing with corruption in the criminal court, the Criminal Procedure and Evidence Act, various pieces of anti corruption laws in the General Laws Amendment Act, the original Money Laundering and proceeds Act itself. I propose that the same be consolidated.
- I also propose that our laws be modernised. Many of our laws were made in the 60s and 70s but we are now living in a complicated age where cyber crimes are the order of the day; where your laptop or mobile phone has become a work station of corruption but the laws are not mobilised to deal with these complicated laws.
- I also proposed that in view of the fact that a huge chunk of our leakages is actually coming through Government itself. In our work in the Public Accounts Committee, we have come across billions and billions of dollars being siphoned out directly from the Government itself, directly from the Ministry of Finance. If you go to the audit report by Mrs. Chiri of 2017, you will see that US$2.9 billion was siphoned out in 2017; US$3.5 billion was siphoned off in 2018, which means that a lot of the looting is actually taking place inside Government itself.
The updated law must put heavy penalties and sanctions against operatives in the Government, oligarchs in the Government that are responsible for much of the omission and omissions. I propose comprehensive updating of the law.
- I also propose that all public officials, including Members of Parliament, Government officials at a certain level, Permanent Secretaries and Principal Directors that there must be an obligation to declare assets. There must be a duty on all of us to declare at the beginning of a term of Parliament how many goats or cows we have so that at the end of the year if we see you having 100 cows or goats, we ask you how and where you acquired those goats and cows. The issue of asset declaration is key.
I come to the Bill Hon. Speaker Sir. I have a problem with the philosophy of the Bill which assumes that all of us in Zimbabwe are criminals; that anyone who has acquired an asset in Zimbabwe is a criminal that anyone who has acquired an asset in Zimbabwe is a criminal but there is a fundamental provision in our Constitution which is on Section 50. Section 50 makes it very clear that everyone is honest until proven guilty. The philosophy of this Bill is to assume that anyone with an asset has committed a crime and the Bill does not strike a balance between honest, hardworking citizenship; crime, theft and corruption. So, there is a fundamental problem in that that Bill just assumes that once someone has an asset it equates to a criminality and corruption and so forth. So, I would submit that we need to change the philosophy because the Bill in its philosophy criminalises innocent and honest citizens.
Number 3, Hon. Speaker, I have a problem with the multiplicity of agencies that can approach the court in respect of unexplained Wealth
Orders Section 37 or an order of freezing one’s property. If you look at Section 2 of the Bill, there are four enforcement agencies which are: - the Zimbabwe Anti-corruption Commission, the National Prosecuting
Authority, the Commissioner General of the Republic Police and the
Zimbabwe Revenue Authority.
Hon. Speaker, there are too many agencies that are enforcement agencies. In my submission, constitutionally, the law enforcing agency is the Zimbabwe Republic Police, so let us give powers to the Zimbabwe Republic Police. Instead of having multiple agencies that are enforcement agent, the danger with giving so many of these agencies power to enforce is subjectiveness. You do not want these huge powers to be abused; you do not want subjective sectors to take in. If I am, for instance at the National Prosecuting Authority and I do not like Prof. Lovemore Madhuku, I do not want to abuse my authority as an enforcement agency by going to apply to the High Court of Zimbabwe for an enforcement order against his house in Mt. Pleasant. We know traditionally that we have one lawful enforcement authority which is the
Zimbabwe Republic Police set out and defined in Chapter 17 of the Constitution.
So I propose that the Minister of Justice, Legal and Parliamentary Affairs and his officials must consider reducing the enforcement authority. Maybe could have the ZRP and the Zimbabwe Revenue Authority for obvious reasons but to have Zimbabwe Anti-Corruption Commission and more importantly to have the National Prosecuting authority, I submit as dangerous, particularly the National Prosecuting
Authority. The National Prosecuting Authority’s functions should be restricted to prosecution on the basis of a docket prepared by an enforcement agency, in this case the Zimbabwe Republic Police or Zimbabwe Anti-Corruption Commission. It will be very dangerous for the National Prosecuting Authority to be both a prosecutor, investigator and an actor. So with great respect, I submit that the definition of enforcement agency must be removed so that we only have at most, two agencies, ZIMRA and the Police as enforcement authorities.
I now move to point number five of my submission which is Section 37(b). Section 37(b), allows the High Court of Zimbabwe on an ex-parte application to apply for an order for unexplained wealth. Hon.
Speaker, we have Section 68 of the Constitution of Zimbabwe, we have
Section 3 of the Administration of Justice Act in Zimbabwe. The
Constitution is very clear; every person is entitled to a right to be heard.
The enforcement order, even though it is not acquisition of property in breach of Section 71 of the Constitution, it is certainly an order that diminishes the value of that property and therefore is a deprivation for the purposes of Section 71 of the Constitution of Zimbabwe.
I therefore, submit Hon. Speaker that because we are dealing with property and property does not run away, it is either money in a bank account or a house in Budiriro or Borrowdale Brooke, or a car; a Lamborghini, we have some in Parliament because those things cannot run away. The Constitution of Zimbabwe should be respected, the right to be heard in Section 68 which is codified also in Section 3 of the Administration of Justice Act. Therefore, before an enforcement agent makes an application, it must give notice to the affected individual. Moreso, when you consider that in terms of Section 37, H, at the same time that an order for unexplained wealth is being sought, the enforcement agent can make an order freezing one’s property, ex parte, without notice to other sides. I submit the more, the reason why notice should be given; so I submit that separation should be made between an order for unexplained wealth and an order freezing wealth. In all instances, notice should be given to an affected person so that he goes before the court and say “well, you think my wealth is explained, I got it through 1, 2, 3,” so we should respect the right to be heard.
Hon. Speaker, both the unexplained order for wealth and the order freezing are open ended. They have no time limit, once something becomes open ended, it becomes arbitrary. So, I submit that there should be a six month period in respect of the life of an order for unexplained wealth and an order freezing the asset of everyone. So if enforcement agency namely the police thinks that certain property is suspect, they can apply for their order in terms of Section 37 but the life of that order is 6 months. This means that the authorities then have a period of 6 months within to act, whether it is a prosecution, civil action to acquire the property but at least they have 6 months to act because the danger of a blank cheque is abuse and open ended. I submit that we should restrict.
I support the findings by the Committee on Budget and Finance that the entry value of US$10 000 is too little. At the official exchange rate today US$10 000 is possibly a ZWL100 000. You cannot buy a house in Budiriro for ZWL100 000. If you are going to buy a car, you can only buy a second hand (zitye) from Japan. So the threshold is too little. In my respectful submission, I submit that the threshold of US$200 000 is a sufficient compromise. That means we are catching the big fish that live in Borrowdale Brooke.
Next Hon. Speaker, is the issue of the Financial Investigating Unit the (FIU). Two weeks ago in this very august House, I presented on behalf of the Public accounts Committee a report on the Omissions and Commissions of the Reserve Bank of Zimbabwe. One of the recommendations which our Committee made was that the footprint of the RBZ was too much in the economy. The fingerprint of the RBZ was too much in the economy. They are responsible for the distribution of the USD, export surrender requirements, subsidies, issuance of Treasury Bills, lending and borrowing money and securitizing the same. So we recommended Hon. Speaker that section 6 of the Reserve Bank Act should be amended so that the RBZ’s core business remains the following functions;
- The issuance of our local currency; ii. Management of the monetary policy system; iii. Acting as a banker to the State; iv. Management of the national payment system; and
- Acting as a banker of last resort.
On the issue of housing the FI unit at the RBZ, they are a problem Hon. Speaker Sir. Firstly, they themselves are a player, they are a unit that needs investigation per se. I want to refer to an incident that happened two weeks ago. Two weeks ago, new notes of $2 and $5 units were released by the RBZ but thousands and thousands of those dollars were actually found at Fourth Street with black market traders. There was an attempt by the RBZ to say it was CBZ that distributed $45 000, Premier Bank or Ecobank that distributed $15 000 but we know Hon.
Speaker that the money that was in Fourth Street was hundreds and thousands of dollars.
So, the RBZ itself is rogue and being a rogue institution, it cannot house a unit that is investigating rogueness. So I support Hon. Speaker Sir, the recommendations of the Committee that we need to create a separate unit. There is a problem already at the RBZ now. The RBZ issues bank licences. In the past, it used to be the Ministry of Finance but the RBZ then regulates those same banks, which is a contradiction in terms of the law. You cannot issue the licence and be the overseer. In other countries, they have got a financial oversight unit. In this country Hon. Speaker, we need a financial oversight unit outside the bank that oversees bank compliance and also this independent financial unit.
So, I submit Hon. Speaker, with great respect that we need to take away the FIU from the RBZ and create a big financial oversight unit. We could probably combine it with the securities commissions. The Securities Commission is not busy, its function is just to look at 60 companies listed on the Stock Exchange, and most of them which are broke anyway and are dysfunctional. We could amend the Securities Commission Act so that we create this Financial Services Unit that will look at money-laundering issues as well as banks and companies on the Stock Exchange.
I want to conclude Hon. Speaker and say that fighting corruption is key in our country for obvious reasons but when we fight corruption, we must not forget that every individual in Zimbabwe has got human rights. He is presumed to be innocent under Section 50 of the Constitution of
Zimbabwe. Secondly, every individual has the right to own property in Section 71 of the Constitution of Zimbabwe. Thirdly, everyone has a right to due process of the law codified in Section 56 (1) of the Constitution of Zimbabwe. Finally, everyone has got the right to be heard, the audi alteram partem rule codified in Section 68 of the Constitution of Zimbabwe. With those brief remarks, I thank you very much Hon. Speaker.
HON. MISIHAIRABWI-MUSHONGA: Thank you very much
Mr. Speaker Sir. I also stand up to debate both the report by the Committee and the Bill that we do have. Mr. Speaker, I will continue to repeat the statement that I spoke to when we were at the pre-Budget Seminar because I think for me it speaks to what we are talking about now. It is unfortunate that as we discuss one of the most important issues in this country, which is the issue of corruption, we are in this space that we are in right now because we have not been able to deal with this problem. I think this particular Bill is one of the most important Bills that we have ever had to debate.
Going back to the statement that I said at the pre-Budget that I am going to repeat now both in Shona, English and Ndebele, Mr. Speaker, you do not hunt with other people’s dogs, hauvhimi nembwa dzisiri dzako or kawuzingeli ngezinja ezingayisizo zakho. All this that we are debating here is a waste of time until and unless we deal with the institutions that we are talking about. Let me just give you an example. As APNAC, we had a breakfast meeting with the Zimbabwe AntiCorruption Commission. One of the shocking things that we discovered is that while we removed that whole Commission, the Wabira Commission and said we are now replacing them with new people who we felt were going to push and drive the corruption issue; we actually have not done anything because in so doing, we have kept everything underneath that Commission intact, including the investigators who are supposed to actually do the day to day issue of running around and finding where things are supposed to be investigated, where crimes have been committed. It just does not make sense.
If that whole institution could not deliver and we publicly said that ZACC could not work on issues to do with corruption, can somebody explain to me why on earth we have kept the secretariat that is supposed to be facilitating that particular institutions? In my opinion, we can come up with Bills now and speak to those institutions and say they will deliver but they will not deliver because these are dogs that are coming from a particular establishment. You cannot carry them and say asihambe siyezingela – let us go and hunt when they are the people that have been in the past establishment and doing the kind of things that we are doing.
From both ourselves and from APNAC point of view, the proposal is if ZACC is going to work remove everybody else that was part of the establishment. We do not care where you take them. Take them to the Public Service Commission and give them some little tables to drink tea and biscuits but they cannot continue to be in ZACC because otherwise we are wasting our time. Even the ZACC Commissioners themselves are very clear that they cannot continue with the investigators who were part of the last time where things could not move. That is the first point.
The second point is the issue that the Hon. Member, Hon. Biti has been talking about. I have a completely different view and as APNAC, we have a completely different view and I know that he is speaking from a point of a very known lawyer who has to defend people’s rights, but from where we are coming from, the countries that have been able to deliver on the issue of corruption have had to use different rules for issues that are to do with corruption and for issues that are to do with any other. Whether you go to Egypt today which has done very well or Rwanda, they have had to completely change their laws as far as corruption is concerned.
I hear where he is coming from but for us to start introducing in this particular Bill other processes that will give notice to somebody so that they can go to court again and insist that they want an order is getting us to where we are right now. When you go into the street Mr. Speaker and you say to people this person was supposed to deliver at Gwanda. They were given US$% million to deliver but they did not deliver and at the end of the day the person is out in the street; he is on Facebook and displaying the number of shoes that he has. He is telling us how much he goes into the First Class. Yes, what does it say to somebody who is in the street?
Me as a small person who is being arrested for a bribe over passports, I go in; me who has thrown a stone at somebody, I am going in but this man that we are clear got some money which is taxpayers’ money, you tell us that because he has gone to court and has been able to prove that this was just a contractual problem. You did not deliver or
not ensure that I do the things that I should do, so, he disappears with US$5 million. It does not make sense, so, certain rules have to change.
We have to use different rules for dealing with corruption.
Indeed, for some of us, one of the most frightening things which the Hon. Member would know; if you go to the Northern suburbs, it does not make sense that in the type of situation and economy we have, people have the capacity to build the type of houses that are being built. You want to tell us to give them notice for them to explain to us how they are getting that money? People are driving amazing cars, which you know they could not have bought for a reasonable amount of money. Honestly, you cannot be telling us that we should sit back and say no, these are their rights, and we cannot ask them where they got the money from. For goodness’ sake, the onus is upon them to tell us where they are getting that money. We cannot allow that to continue.
An Hon. Member was saying that the majority of people who are stealing are those sitting in Government right now. One has to explain to us, at a salary of a Permanent Secretary, who is earning something like 2 to 3 thousand dollars, how does that person afford to have the kind of wealth that they have? You want us to wait and not ask them to explain where they are getting that money? I think for me, that provision is the most critical one.
The next provision which I want to agree with the Hon. Member is that around the declaration of assets as provided for in Section 198 of the Constitution. What is sad is that as Parliamentarians here, we are the ones who have violated that particular provision and yet we are the custodians of this Constitution. We were all asked to declare our assets. Some of us in this House have not declared assets, we need to declare our assets. From a point of view of African Parliamentarians Network Against Corruption (APNAC), we actually want to go beyond that. We cannot just declare those assets and put them in the Speaker’s place. When we declare, let them be public. I agree with the Hon. Member, if you walked in here with two goats, tell us why you now have 15 goats. Some of the Hon. Members who walked in here have never been to work, they have never worked their whole lives, five years down the
line, they now own industries. At what point did you get that money, tell us. If you have it, you just declare – [HON. MEMBERS: Hear, hear.] – I got it from there or there.
In fact, one of the things that we need to have is that before anybody runs for office, before you say you want to be a President, the first thing is to do your declaration of your assets – [HON. MEMBERS: Hear, hear.] – so that when we begin to see you with other things, we have a problem. The issue on the declaration of assets is critical and because we do not have an Act that provides for the declaration of assets, I think this is the opportunity to ensure that we make it a provision in this particular Bill. We find a provision in which we make sure that there is a declaration of assets.
The last point I want to raise is that, I want to agree with Hon. Biti to a certain extent. On the bodies which are supposed to deliver on this particular aspect; where I disagree with him in terms of how many is where ZACC is concerned. We have given arresting powers to ZACC, I think we should proceed and give them prosecuting powers – [THE HON. MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY
AFFAIRS (HON. ZIYAMBI): Inaudible interjection.] – Yes, I know that the Minister of Justice will have problems with this. However, one of the things that we are having – I want the Minister of Justice to go to Rowan Martin, sit and see what is happening with prosecution. There is no way you can get anybody prosecuted.
I had the opportunity of being attached at that particular place and I was shocked at what I saw in there, just the professionalism of sitting in an office. When you sit in that office, someone is eating eggs whilst the other is eating buns, you cannot tell what is happening – there is no delivery of a system that will happen. I said this to the Prosecutor
General, just walk from your office and see what is happening around Rowan Martin. In my mind, I had thought that the first thing I was going to do was to be a Prosecutor but after sitting at that place, I will not have anything to do with prosecution around that area because the whole environment cannot deliver. You think that place is going to catch serious people, you sit in that court and you are surprised that anything could be coming out of that process. So, until we deal with that whole department; which is why for now, I would rather; if you are going to have serious corruption issues and you want serious prosecution, let us put it elsewhere. If you are not going to put it to
ZACC, convince me that the current National Prosecution Authority (NPA) is going to work. Even the NPA itself as a body does not inspire anything in me. I do not know what they are doing; I do not know whether the body has any power in doing anything that is in the NPA.
So, for me, I think this Bill that we are talking about has so many important issues that my request to the Minister of Justice, would be that, perhaps let us get more time and work through this to ensure that when we deliver an Act, it is that which we are going to be able to use. At this stage, if we have this, it is just going to be a piece of paper, there will be nothing to it because we do not have the institutions and our laws are already problematic.
In conclusion, it is the issue that was raised by the Committee which I think is critical. It is the issue around the ‘Whistle Blowers’ Act. Mr.
Speaker Sir, if we have not dealt with the issue of whistle blowers, you can forget it. I gave an example to the Chair of ZACC the last time we met her and said; I was on a flight and one of the stewards came to me and said, ‘Hon. Member, I am hurting, I am a Zimbabwean. I sit on this flight and every day, I see people who come from Dubai, they get to the Airport, they come in, they do not use the same route that people go through, they come out holding whatever they have in terms of their monies and go and pay people. Those people give them a lot of bags containing gold.’ This is not new, it was even in the newspaper, and Eddie Cross published it. The bags of gold are brought in and go. The people are known and they do not even go into business class or first class, they make sure that they go into the Economy Class. He said, ‘I have met with Ministers in your Government, many of them,’ and he even gave me the names which I will not say now. He said, ‘I met so and so, and said look outside the window, there are the people that I am telling you about who are siphoning money from this country.’ Nothing has happened on that issue. I said, are you prepared for me to take you to ZACC and we are able to say this. He said, ‘firstly, I will lose my job, secondly, I am convinced that there are powerful people somewhere at the top where if they know I am the one who had said this, I will be dead.’ So, without whistleblowers, there is no way you are going to get the information that is there. However, there are many Zimbabweans who are holding on to critical information on the issue of corruption. Until we have a protection that allows them to be able to speak and say these things – If you are in a place like the United States of America, you will have somebody who is able to speak against their own President and say, I was sitting there when you were having a phone call with the Koreans and something like that can be taken on for impeachment. Can you imagine what it would do in this country where you are not necessarily challenging the President but other people who are in the Whistleblowers Act needs to be critical. I have not really looked at the way this one is drafted and I was wondering whether we really need a separate Whistleblowers Act because it is something that will support the Money Laundering Act, we should not be looking at creating some provision within this particular Bill that will deal with the whistleblowers, otherwise with what we have now, we do not have much to deal with the issue of corruption. Like I said, I am really sad that as a nation, we continue to talk about corruption but we have not committed ourselves to dealing with the issue that is associated with corruption. I thank you Mr. Speaker Sir.
HON. PHULU: Mr. Speaker Sir, I would like to thank you for the opportunity to debate the Money Laundering and Proceeds of Crime Act. I think it has been ably debated by the Hon. Members who have spoken before me. The report as well by the responsible Committee has been quite comprehensive. However, there are a few things that I would like to point out. I would like to underline the submission by Hon. Biti who spoke before me, to say that the entire philosophy of the Bill needs to be relooked at carefully. I know that Hon. Misihairabwi has argued that people who are clearly in possession of property that they would not be able to explain ought not to be given the opportunity to explain themselves before their assets are frozen.
I will give you an example Mr. Speaker Sir. There is an entity or a person called the receiver who can be appointed and one’s property can be frozen before they get a right to be heard. I may have a car or house in the townships because it qualifies in terms of the amounts that we have here. If someone decides they do not understand where I obtained the revenue or the money to buy the house, they may decide to freeze my assets. The fact that they do not understand where I got the money from does not necessarily mean I got the money through illegal means or I am laundering money. There may very well be another explanation which they may not be aware of. We are not serious as we move around our communities. We cannot throw bones and know where people are getting their money from. An order can then be made to have my assets frozen and this receiver can make a decision to sell off some of my assets even before I get a right to respond. If the assets are perishable, they can be sold. If I am running a business, he can appoint some other person to come and run my business and ruin it. To make it worse, a clause has been inserted to say that this receiver may not know how he conducts himself, is not liable and when it is proved after sometime that I have a valid explanation, all the State can say is that they are sorry.
There is some lip service to me being able to have compensation but the parameters of that compensation are not discussed. Who is going to compensate is not discussed. How they are going to compensate is not discussed; if indeed I am going to have power to execute and get the value, assuming I win in court is not discussed. A business is of immense value and has uniqueness. If you destroy my business, there can be no compensation that you can give me in order to get back my business. If you sell off all my cows some of which probably have my grandfather’s name, there is no way in which you are going to be able to compensate me. Certainly, the philosophy which says that the State can willy nilly come and take your property, do as they please on the basis of some hauge, I think it is quite problematic and violates Section 50 of the Constitution and even Section 68, the Right to Administrative Justice is fundamentally violated.
The person who steals eggs or oranges in the street is entitled to a right to be heard. The person who owns ownership of a property is not a crime on the face of it. This Act criminalises the ownership the ownership of property. We know that in villages, some of us we grew up in villages and this thing is not new. It has been there where people who have property or people who are doing well or if there is simply someone you do not like, you could always say muroyi. You could always say that they are a thief and people have run out of villages before. Mr. Speaker Sir, this kind of Act may even run counter.
I agree that money laundering should be tackled. I agree that crimes should be tackled but we should follow due process, especially when your entry point and I would like to point to a particular clause at page 2, paragraph 40. This is the interpretation section. It talks about an aggregate value of $50 thousand. It does not say US$50 thousand, the rest of the Act distinguishes to say US dollars but on that section it simply says you have to have $50 thousand; RTGS$50 thousand and you can be investigated and have your assets frozen. Transactions of
$10 thousand in your account, if you have consecutive transactions of RTGS$10 thousand – I transfer RTGS$10 thousand today, I transfer
RTGS$10 thousand next month and I am liable to be investigated and have my assets frozen, I submit that the Act as it stands is very dangerous.
Certainly, there must be emphasis on complying with constitutional provisions such as Section 50 and Section 68 so that people can be given a right to be heard. These freezing orders when they are given, if the freezing order was to temporarily freeze the property just like a Sheriff’s attachment where they can attach your property and tell you that you cannot dispose of the property pending the outcome of the proceedings or you cannot dispose of the property pending the outcome on investigations but you continue to use your property and there is no receiver to sell your property, it would be fair because they want to sell milk in your fridge. It says that if the property is perishable, that could even include milk in your fridge. I think that there is a way we should have some cut off.
However, one of the most important ways, I would like to support what has been said before that if we can be dealing with massive wealth and massive amounts like the US$200 thousand that has been talked about, it then makes sense. When it comes to freezing orders, we need to look at this carefully because people are innocent in terms of our Constitution until they are proven guilty.
There is also the element of retrospectivity that this Act will apply backwards to people who acquired properties in 1980, 1981, 1999 and 2000. We know that in our country and as we speak now, our country is largely an informal economy. When we compare ourselves with the United Kingdom, Kenya, Rwanda and other countries whose economy is not pervasively overwhelmingly informal – if you look at the figures that we were given in terms of the informal economy. There are people who have been selling tomatoes or doing cross border trading for many years, women and Government has been supporting them. A lot of those women, I know because I have been seeing them have been able over a period of time to purchase houses, properties and send children to school, move from business to business growing and they have been able to do amazing things. I think it is unfair for us to then turn around to say we want to seize their properties mainly because we do not understand how they have made their money. I know for a fact that if you calculate the amount a man who drinks beer every day in a year you would be surprised, you would be shocked.
So it is unfair that if someone else is guzzling down their little money they are earning and someone is heavily saving high office? So painstakingly – we can then try to seize their property and accuse them of not having receipts. Where do you get receipts from selling tomatoes? A person must have an opportunity to explain that ‘no, this is what I have been doing. I have been selling tomatoes and this is how much I have been making’, before some of these orders can be made.
There is the issue of market value Mr. Speaker Sir. The proposal is that if my assets are seized today – say I have a house in Nkulumane and it is seized today because someone suspects that I got it through unlawful means or I have been laundering, the presumption is that I bought the house at its current value today and I would like to submit that is also very unfair. It is gravely unfair because we must not pretend that we do not know our own economy and what has been happening – the vicissitudes of prices. There was a time when people were burning money and buying things lawfully. Then today we say that if I bought a house at the equivalent value of USD$500.00 or USD$10 000.00, we now want to automatically say that the value of that house if we cease it today becomes $150 000.00 when I bought it in 1980 or in 2000. I think that there is an element of unfairness again there and this is an aspect that we would need to revisit and look at very carefully because when I explain, I am supposed to explain why I have a property worth $150 000.00 when I did not buy the property at $150 000.00.
So Mr. Speaker Sir, I will move to the issue of prosecutors. There has been a submission that – I am coming to the issue of agencies because my time is running out. I submit that the Bill itself, whilst I would argue that it is necessary to have some form of law that deals with this, we know that in the Finance Act we already have a similar provision. I think that in the Companies Act again we have got similar provisions and given the fact that we already have the police, prosecutors, ZIMRA, ZACC – all these entities have the same powers to do what is being done now.
I think that our focus should be on those existing institutions to make sure that they work effectively. If those institutions are working effectively, this Bill may not even be necessary. It may simply be an overreaction. I will give an example of the National Prosecuting Authority (NPA); it is an institution that has a history. Remember that it is fairly new in its current format – it is an institution that has always been embedded in other institutions until it was moved quite recently. Having been removed, it is one of the least funded State entities that we have and if you look at the budget right now, despite arguing and arguing and the Committee calling for their amounts to be increased – they have not.
They do not even have their own Head Office – you know when you talk about the prosecutors at Rotten Row or whatever magistrate’s court. They are embedded in other people’s institutions and buildings and treated like second-class citizens. So there is no way that they can be effective that way. They have had police prosecutors all this time, that means that they have not been properly equipped with staff that has sufficient skills to discharge their duties. I think that the money side as we go into discussions about money – we should first give them a fair chance and equip them.
You know Mr. Speaker Sir, a prosecutor who travels from Filabusi or from Tsholotsho to a circuit court elsewhere drives in the back of a truck. He is driven by a magistrate who has been given a car – he does not have a car. Their situation is embarrassing – it is terrible. It is the same with the police and so many other public officers and if we were to look into that, we would be able to cover a lot of the things that we are complaining about.
Lastly I will come to the issue of the receiver – I think that the issue of the receiver Mr. Speaker Sir, is something that the Hon. Minister should consider very carefully because he operates when there is an interim order and not even a final order. He has powers to sell your property, destroy your business, your life and then he is immune even if he is negligent or vindictive. I think that the issue of the receiver should either be totally removed or the receiver should have powers to merely monitor that you do not sell your property or you do not dispose of your property. Perhaps if it is money that you do not use the money without maybe an order or permission from him, he must be like a judicial manager more than someone who sits on your assets and makes sure that you cannot function.
So Mr. Speaker Sir, the purpose of this law is not to bully anyone, beat people over the heads and is not for purposes of intimidation. It should be for purposes of sniffing out those people who are corrupt and those who are laundering money. The danger with anti-money laundering legislation as well is that in an economy like ours, we should actually be worried more about illicit transfers from this country out and illicit transfers from Africa out. Money laundering if we are not careful, is really pushed by countries that have political, terrorism and imperial interests. It is very funny that we are here pushing for this kind of agenda without any safeguards or speed traps. I would urge that we put up some speed traps to ensure that we do not run into the danger of violating Section 68, the right to administrative justice and also the presumption of innocence. I thank you.
HON. MUDARIKWA: On a point of order Mr. Speaker! Mr.
Speaker Sir, the report that we are debating on is not in the pigeonholes. May we have copies to go through? It is not there – the report that was presented by the Committee Chairperson must be in the pigeonholes.
THE TEMPORARY SPEAKER (HON. M. KHUMALO): But
you have the Bill.
HON. MUDARIKWA: The Bill was put but the report by the Chairperson must also be in the pigeonholes in order for us to debate from an informed position. The report that was presented by the Chairperson is the report from the people of Zimbabwe when they did their public consultations. So we are negotiating in vacuum – trying to account for the wealth, how I got rich. We must also try to account on how I got poor. – [Laughter.] – [HON. MEMBERS: Inaudible
THE TEMPORARY SPEAKER: Order, Order Hon. Members.
I am informed that the staff is verifying whether you can get the copies.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon.
Speaker. Hon. Speaker, I want to thank the Hon. Members who debated the Bill and I must say that this is a necessary piece of legislation. It is necessary in that we need to deal with issues of money laundering and corruption that are rampant in the country.
Mr. Speaker Sir, before I respond I just want to allude to the fact that as has been mentioned by Hon. Misiharabwi-Mushonga to say that if you drive around Harare, you would not even believe the wealth that is in this country – [HON. BITI: Start with Parliament!] – I am being advised that I must start from here. The kind of wealth that is there and the earnings of the people, there is a mismatch and you begin to wonder whether there is any declaration to ZIMRA on the kind of wealth that is there. You will be amazed in terms of mansions that are being built. You will find a clerk earning a thousand dollars has got three to four houses – mansions. All we are trying to say is - explain your wealth. We know that you are earning a thousand dollars and you are not like Hon. Biti who is a partner in a law firm who can get a contract maybe worth a hundred thousand dollars at some point. He can explain without even producing a receipt but we know that you do not even have a tuck shop but you have been doing amazing things. We are saying explain your wealth, you are stealing from the poor. So, that is the starting point that we are saying we need legislation that will give us enough ammunition to deal with people.
Mr. Speaker, I agree with some of the issues that have been raised by Hon. Biti. In terms of the monetary value, I think we can look into that with a view of raising the amount. I also agree that we improve the provision on the ex parte application to ensure that the court can also give a determination. I think when we go the Committee Stage, we can then look at the provisions and say how do we deal with them.
You also spoke about having a percentage rather than a fixed figure. I think that can be done when we go to the Committee Stage we can look at those technical issues. On the presumption of innocence, I think Hon. Biti, this is a civil application, it is not a criminal offence. All we are doing is we are making a civil application to the court to say can you comply with these conditions. If you are able to comply, then you do not need to worry.
So, the issue of this application being open- I think does not arise. You raised the issue that we need to harmonise, consolidate and modernise corruption laws, I agree but what we intend to do is perhaps come up with a handbook. It may not be ideal to come up with one piece of legislation, but I think we are going to work on having a handbook that will indicate how we can use the various pieces of legislations in terms of dealing with these cases. I think my Department through Mr. Dias will do that. We are in agreement with you in that regard.
THE TEMPORARY SPEAKER: Order, order. May I respond
to the issue of the report not available? I am informed that this is the first time the Chairperson has reported and it must not have gone public before you reports. I am informed that during the day, today, the report will be in your pigeon holes.
HON. ZIYAMBI: Thank you very much. In terms of enforcements agencies, our view was we wanted to make it as wide as possible so that we capture all the culprits, if you just say ZRP and perhaps ZIMRA, no, we wanted to widen it to ensure that all the agencies involved will be able to deal with these issues. However, when we get to the Committee Stage we can see how we can streamline it – [HON. BITI: Mapurisa ngaasunge vanhu.] – [HON. MISIHAIRABWI MUSHONGA: Mapurisa acho ndovari corrupt worse.] – On the value I have said we can look at it.
On the time limitation of unexplained wealth orders, the Bill already makes a provision for the discharge of an interim freezing order after compliance has been made. So, I believe it takes care of that. Once you have satisfied the requirements, it falls off and there are provisions for review and you can even appeal. However, we will see when we go to the Committee Stage.
On declaration of assets from Hon. Misihairambwi-Mushonga, she made very good points and I agree with her, particularly on people that you would wonder where they got the wealth from. This Bill is not targeting the poor and the rich people, not at all. This Bill is targeting thieves and corrupt people and the due process will be done. On the issue of declaration of assets, I agree. Let me explain this, once you declare assets, something happens and you are being investigated, you can produce that declaration and say but I had already declared this asset, why are you saying that I acquired it during my tenure as a Member of Parliament. So, it is actually good for Hon. Members to declare – [HON. MEMBERS: Publish the information.] - I think it is governed by other laws and not this one. So, we defer it and discuss it
Again Hon. Misihairabwi-Mushonga, this Bill is not about prosecuting people, but obtaining information from allegedly corrupt people and on the basis of that information we can have civil assets forfeiture. So, it is not prosecution per se, we obtain information through that ex parte application. So if you do not satisfy the requirements, we forfeit. It is civil asset forfeiture, but depending on how you respond, we may actually pick some criminal elements which may lead to prosecution, but the essence of this application- it is a civil asset forfeiture application and it is not criminal in nature.
Hon. Phulu, you make a good point on the US dollar that it says 50 000, it does not indicate, I think we can correct that so that we peg it at a certain value in terms of US dollar. This Bill is not about taking wealth from people. We are just looking at people who have obtained wealth corruptly. That is the target, so if you have obtained wealth corruptly, we want to fast-track this Bill so that we can get you. We cannot say it should not be retrospective, all we are saying is prove to us where you get your wealth from, there will be a checklist, if you got it from your brother, state it, if you stole it state it. If we say it is not retrospective, it defeats the whole purpose. Iwe wanga uchiba mazuva ese aya waakuti aiwa ngazvichitanga nhasi, tirikutanga kumashure ikoko kwawakaba – [HON. MEMBERS: Hear, hear.] – [HON. BITI: Muchapedzana ikoko uko.] – I think if you steal, it does not matter where you are from, you should be nabbed. If you can explain the source of your wealth, you do not have anything to fear – declare that it was prostitution. I submit that the Bill be now read a second time.
HON. HAMAUSWA: I just want to make one contribution. I am
of the view that whilst we look at the individuals, we should also consider the context of our nation which has lost a lot of revenue from unscrupulous companies. This Bill should also take into account the concept of public trust theory- where the Hon Minister was saying the law when it is passed it cannot be applying in retrospect I am also suggesting that we should empower Government to look back into the contracts that would have been made but in a way benefiting certain companies in a corrupt way so that Government can correct those wrongs possibly that were done some years back but they have deprived the public.
From what the Minister was saying, the people would have stolen from the people- like the resources of this nation, they belong to the people so there must be that principle if it is possible. It is just a suggestion that other countries that are fighting corruption, they have decided to bring in the concept of public trust to say even those who are in public offices, they are there on the basis of public trust that they are just managing the resources which do not belong to them but to the public. I am suggesting to the Hon Minister, I do not know how you will take it, but this is what other countries are doing. I thank you.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): The other issues
we can deal with them at the Committee Stage. I move that the Bill be now read a second time.
Motion put and agreed to.
Bill read a second time.
Committee Stage: With leave forthwith.
MONEY LAUNDERING AND PROCEEDS OF CRIME BILL [H. B.
House in Committee.
Clause 1 put and agreed to.
On Clause 2:
HON. BITI: On Clause 2, the definition of enforcement authority.
Section 2 is the new Chapter 3A – Section 37 (a) Enforcement
Authority, I repeat my earlier submission that the enforcement authority should only mean the Commissioner General and the Zimbabwe Revenue Authority.
My submission is that the National Prosecuting Authority acts through policemen. So why would the National Prosecuting Authority need an independent power? Let them do their job of standing up in court on dockets prepared by the police. If they want to freeze, they go through the policemen.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS: Hon. Chair, on Clause 2, new
Chapter 3(a) inserted in Chapter 9:24, Chapter 3 (a) (1) Preliminary provisions, I propose that we delete the Zimbabwe Anti -Corruption Commission and the NPA and we leave the ZRP and the Zimbabwe Revenue Authority.
HON. MISIHAIRABWI-MUSHONGA: Minister, I think you
would be sending a very bad message by doing what you want to do right now. If there are any problems around ZACC and the kind of things that they can do, let us deal with the problems, but certainly I am telling you from a political message, from a message around what we are trying to do with that institution. If we as Parliament today sit and say we are taking them out for whatever reason that you are saying, the message is that you do not think that they have the capacity to deal with
We can go with it, but I am telling you, you are creating a very bad message generally around that. That removal of ZACC is a bad thing to do.
HON. ZIYAMBI: This Bill is not about criminal prosecution. This Bill, ZIMRA is the revenue authority where every penny that you earn must be accounted to ZIMRA in terms of one or the other tax and the Zimbabwe Republic Police can assist ZIMRA in their work. They can also make an application and work in collaboration with any other agency. So there is no agency that is having its work taken away.
This is a civil application, not a criminal application, but should there be criminal elements that arise out of that, then it can either be referred to ZACC or the police can proceed. So there is no undermining of any authority whatsoever, unless if we are turning this into a criminal investigation, then we can say let us continue with this because the moment we turn this then it becomes bad law.
We are saying a civil application has been made, explain your wealth. On the basis of that explanation, we can close or alternatively there might be criminal elements that may come out and on the basis of that explanation, we are not going to prosecute you. You can forfeit your assets to the State and that is the end of the story or if we believe that the nature of the transactions are criminal, then ZACC can come in with their investigative prowess. So, I do not know why we would tell ourselves here that we are setting a dangerous precedence when we are dealing with a civil application. I submit Hon. Speaker Sir.
HON. MISIHAIRABWI-MUSHONGA: I think perhaps I need
education because I have never understood the ZACC institution as one that is only for purposes of criminal prosecution. That is not what I have understood it to be. You are telling me that you want to do a civil issue of ensuring that you do forfeiture of property, unexplained wealth or to begin that process, why is ZACC not a body that can do that? I certainly cannot understand where we are coming from because it is as if you are saying if you say ZAC, you are talking criminal. I am not necessarily saying that.
You are saying that the police is okay, NPA is okay and yet NPA is dealing with criminal law. So I do not understand.
HON. BITI: Mr. Speaker Sir, I think the problem which we are having, I said it already, is the philosophy of this Bill, is the philosophy that assumes that the minute a person has an asset, he or she is a criminal. We have a country that encourages entrepreneurship, business enterprise. In this august House, we have genuine, legitimate, bonafide business people. Vamwe vacho vandakatarisa avo varimunomu, mashangwiti emari dzehupfumi. We have miners and farmers here. Yes of course we have got criminals, but we must not assume that everyone is a criminal. That is the problem.
So, there is a specialised board which deals with crime. It is the police. Let us give them the powers. There is a specialised board which deals with revenue collection, it is ZIMRA. Let us give them that, but let us exclude ZACC because ZACC deals with crime, ZACC deals with corruption which is a crime. This is not a criminal Bill. The NPA should not be there because the NPA deals with crime and prosecution.
So the police and ZIMRA should be there. I thank you very much Hon.
HON. ZIYAMBI: Hon. Chair, I believe any law, you can improve it going forward and if we get to a stage where we feel strongly, which I do not at the moment, that we can involve ZACC, we will do
I will give you a good example in our laws. If I bring my vehicle through Beitbridge and I do not pay duty, the police can arrest me in conjunction with ZIMRA and ZIMRA can impound the vehicle and impose a penalty. Suppose my duty was $2000 they can say $4 000, but I do not go to jail. We have provisions like that in our law. That is the basis of having perhaps ZIMRA and the police because the police assist ZIMRA, but should there be a criminal element that arises out of it that requires further investigation, there is nothing that prevents ZACC from being engaged, but we must preserve this Bill as it is to deal with unexplained wealth in a civil manner, not a criminal manner. So I submit that we proceed, Hon. Chair, to the next section.
HON. PHULU: Thank you Hon. Chair. If the Minister could address line 40 on page 2 which talks about the aggregate value of
US$50 000, I think it was an omission, whether they meant to say US$50 000 or something of equivalent value. Thank you.
HON. ZIYAMBI: Thank you Hon. Chair. On line 40, I propose to increase the value to US$100 000 equivalent. I propose again to insert the following proviso to Section 37 (b) subsection (1) on page 3, so that it reads “provided that if the court is not so satisfied, it may dismiss the application or require the applicant to serve notice of the application on the respondent before proceeding with the application”. – [HON. MISIHAIRABWI-MUSHONGA: Kuti mumupe time yekuti
anyatsodealer nezvinhu zvake.]- No, it still remains an ex parte application but the court then makes that decision depending on the facts that have been presented by the enforcement authority that is making the application. It will take care of frivolous application that may be made.
So that is what I propose.
In the new Section 37 (b), to delete the figure “US$10 000” and substitute with “US$100 000”.
Amendment on Section 37 (e), where you spoke about US$65 000, which is paragraph 5, I want to delete “US$65 000” or the equivalent and I propose to put it so that it can read as follows: “shall be guilty of an offence and liable to a fine not exceeding 20 per centum of the value of the property that is the subject of the unexplained wealth order or if
no such value specified, not exceeding “US$20 000”. This is a fine for misleading information.
Then on 37 (e), it now becomes not exceeding 20 per centum of the value of the property that is subject or if the value is not there, not exceeding “US$20 000”. So, we have removed the “US$65 000”. I think it is now clear.
THE TEMPORARY CHAIRPERSON (HON. M.
KHUMALO): Hon. Minister, it would appear we have got 37 (b) twice here.
HON. ZIYAMBI: Yes, we are deleting the other one.
HON. MHONA: Thank you Hon. Chair. I just wanted to bring to
the attention of the Minister on the 37 (b) that it is appearing twice.
HON. ZIYAMBI: We will renumber.
HON. PHULU: On 37 (b) Mr. Chairman, subsection (3), related to politically exposed persons. My concern is on line 20, page 4. In order for a High Court to grant the ground for suspecting that the main sources would have been insufficient; if you are merely a politically exposed person, without saying “and” any of these other grounds simply because why should it be suspected simply because you are a politically exposed person and nothing else? I think that it should be coupled with the additional grounds that in a, b, c and d. So, you could say political
persons and semi colon or. – [HON. MISIHAIRABWI-MUSHONGA:
HON. ZIYAMBI: Thank you Hon. Chair. The other 37 (b) on line
20, I am proposing to expunge or delete “the respondent is a politically exposed person” and renumber it accordingly. Sub section (ii), I would put a (ii) that says, ‘ any person subject of an order under section 37 (b)...’
Hon. Biti called to approach the Minister.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Chair, on
37 (a) any person subjected to an unexplained wealth order may at any time apply to the High Court that issues the order, to set aside the order on good cause shown.
On 37 (i), a new Subsection (2) to read as follows, any person subjected to an interim freezing order may at any time apply to the High
Court that issues the order to put it aside on good cause shown. It is 37 (a) the new addition (7), on page 4 after paragraph 5 to insert this paragraph – “Any person subjected to an unexplained wealth order may at any time apply to the High Court that issues the order to set it aside on good cause shown”.
Then on 37 (i), new Subsection (2) after line 35, to insert - “Any person subjected to an interim freezing order may at any time apply to the High Court that issues the order to set it aside on good cause shown”. Then the last one on page 13; 37 (O), I propose to add (c), that will read as follows, “the compensation must be paid within 12 months of its award”. I so submit Hon. Chair.
Amendments to Clause 2 put and agreed to.
Clause 2, as amended, put and agreed to.
Bill reported with amendments.
Bill referred to the Parliamentary.
ANNOUNCEMENT BY THE TEMPORARY SPEAKER
NON-ADVERSE REPORT RECEIVED FROM THE
PARLIAMENTARY LEGAL COMMITTEE
THE TEMPORARY SPEAKER: I have received a non-adverse
report from the Parliamentary Legal Committee on the Zimbabwe Investment Development Agency Bill [H. B. 2A, 2019].
Consideration Stage: With leave, forthwith.
ZIMBABWE INVESTMENT DEVELOPMENT AGENCY BILL [H.
- 2A, 2019]
Clauses 2, 5, 6 now Clause 7, 9, 14, 20, 21, 23, 30, 42, 45, 47, 48, and Second Schedule put and agreed to.
Bill, as amended, adopted.
Third Reading: With leave, forthwith.
ZIMBABWE INVESTMENT DEVELOPMENT AGENCY BILL [H.
- 2, 2019]
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Mr. Speaker Sir,
I now move that the Bill be read the third time.
Motion put and agreed to.
Bill read the third time.
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Before I
propose the adjournment of the House, I want to thank the Hon.
Members for the robust debate and for the work that was put in today to ensure that we pass the ZIDA Bill.
The House adjourned at Twenty Seven Minutes past Five o’clock
p.m. until Tuesday, 3rd December, 2019.