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SENATE HANSARD 05 MARCH 2019 VOL 28 NO 34

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PARLIAMENT OF ZIMBABWE

Tuesday, 5th March, 2019

The Senate met at Half-past Two o’clock p. m.

PRAYERS

(THE HON. PRESIDENT OF SENATE in the Chair)

ANNOUNCEMENTS BY THE HON. PRESIDENT OF SENATE

SENSITISATION WORKSHOP ON CLIMATE CHANGE

          THE HON. PRESIDENT OF SENATE: I have to inform the Senate that Parliament of Zimbabwe in conjunction with the Inter Parliamentary Union and the United Nations Environment Programme (UNEP) will convene a Sensitisation Workshop on Climate Change for Members of the following Committees;

a)    Portfolio Committee on Lands, Agriculture, Water, Climate and Rural Resettlement.

b)   Portfolio Committee on Environment and Tourism.

c)    Thematic Committee on Sustainable Development Goals (SDGs).

All Committee Chairpersons are also invited to attend this Workshop without fail.  The Workshop will be held at Rainbow Towers on Friday, 8th March, 2019 starting at 0800 hours.  Participants must be punctual. 

INVITATION TO A CATHOLIC CHURCH SERVICE

THE HON. PRESIDENT OF SENATE: I also have to inform the Senate that there will be a Catholic Mass tomorrow, Wednesday, 6th March, 2019 to mark the Ash Wednesday.  All Catholics and non Catholics are invited to attend. 

COMMITTEE STAGE

CONSIDERATION OF AN ADVERSE REPORT BY THE PARLIAMENTARY LEGAL COMMITTEE ON STATUTORY INSTRUMENT NO. 247 OF 2018 AGRICULTURAL MARKETING AUTHORITY (COMMAND AGRICULTURE SCHEME FOR DOMESTIC CROP, LIVESTOCK AND FISHERIES PRODUCTION) REGULATIONS, 2018 

First Order read: Consideration of an Adverse Report by the Parliamentary Legal Committee on Statutory Instrument No. 247 of 2018 Agricultural Marketing Authority (Command Agriculture Scheme for Domestic Crop, Livestock and Fisheries Production) Regulations, 2018.

House in Committee.

HON. SAMUKANGE:  Hon. Chairman, I want to give a brief introduction especially for those who have not met the Parliamentary Legal Committee because it may come as a surprise why I am here, I am a member of the National Assembly but today I appear before you in the Senate together with my fellow members from the Parliamentary Legal Committee. 

The Parliamentary Legal Committee is set up in terms of the Constitution and it consists of five lawyers assisted by the Secretariat, all of them are actually registered legal practitioners.  I would want to say that it is reasonably knowledgeable in the operations of the law. 

The Statutory Instrument has been presented previously since 2013 and I think if my memory serves me right, this has been the fourth time it has been presented.  For some funny reason, the Ministry does not want to give up.  In the past three occasions or so, it has been up here, it has been brought in the National Assembly and the adverse report had been adopted by both Houses at different stages.  Despite that, it appears that the Minister and the Ministry wanted to insist what they think is right and hopefully that they will convince you that as Members of the Parliamentary Committee, we are wrong and they are right. 

          In a nutshell, I am going to read a lengthy report that we have prepared but what we are saying is that when we talk about the rule of law, it is that when the law seeks to punish innocent citizens in terms of having breached a written contract, that has been considered universally that it is unacceptable.  We cannot punish a citizen who has entered into a contract with another party and then the other party decides that because there is a breach, it takes that breach to the police and has the person arrested.  It is considered as criminalising the citizenry of this country or even residents of this country who happen to enter into a contract.  This is why we have issued an adverse report because we are saying no, if the Ministry either through the Command Agriculture or has entered through its subsidiaries into contract with farmers, in this particular case, I think mostly it is the peasant farmer who enters into the contract with the branch of Government and then for some reason, there is some breach of that contract.  We advise that it is not advisable for that party who is in breach to be prosecuted.  It is nothing to do with the police or criminalising the individual.  What should be done is that when there is a contract which both parties have signed, if there is any form of breach, then that contract can actually be enforced through the courts in a civil court. 

In fact, I must go further that in the Criminal Procedure and Evidence Act, it actually provides that it is a complete defence to a criminal charge if the accused person or suspect produces a contract and says no, you cannot prosecute me in terms of this contract because there is a written agreement, the criminal court will then advise the prosecutor to take the matter to a civil court and the Attorney General has a division which is the Civil Division whose function is to enforce all contracts entered into between parties and Government.

I think the rationale is because that is cumbersome, unfortunately that should be the case and that is what happens in a democratic State.  You do not just prosecute because prosecuting is rigorous and it gives a lot of mental anguish.  Now, we would want to urge the House that we should take into account that, but in addition to that, I would also say the Ministry of Lands, Agriculture, Water, Climate and Rural Resettlement is adequately protected because where a farmer or a contractor has decided to cheat Government, they can be prosecuted if they want to prosecute in terms of committing fraud which is a criminal offence and can be punished by laws.  So, at the end of the day, we do not need this particular piece of legislation.

Having said that, I want to read the prepared discourse that we have prepared for further discussion:  “In pursuit of its constitutional mandate, as provided for in Section 152 of the Constitution of Zimbabwe, the Parliamentary Legal Committee (PLC), in terms of such considered Statutory Instrument 247 of 2018 entitled Agricultural Marketing Authority (Command Agriculture Scheme for Domestic Crop, Livestock and Fisheries Production) Regulations, 2018.  After the deliberations of the Committee, it unanimously resolved that an adverse report be issued in respect of the Statutory Instrument due to the following reasons:

It is the Committee’s view that the “Command Agriculture Programme) (hereinafter referred to as (Command Agriculture”), is a Government scheme which provides access to agricultural inputs and a platform for the sale of produce to the farmers.  Command Agriculture beneficiaries enter into civil contracts with the Government – I repeat, enter into civil contracts with Government and this is the aspect that we feel is unfair because when you have entered into a civil contract, it is not, it does not and should not be criminalised. 

The Committee regards these contracts to be just like any civil contract regulated by the law of contract.  As was stated by Innes CJ in the case of Rood and Wallach, 1904.  TS “Every agreement ...made deliberately and seriously by a person capable of contracting and having a ground of reason which is not immoral or forbidden by law may be enforced by action.”  When we say action, it means that contract can be taken to court but not to a criminal court.  Action is another term that we use, for example when issuing summons, it is an action; when you use a court application, it is an action; when you use an urgent application, it is an action.

It appears that Statutory Instrument 247 of 2017 seeks to protect the scheme through criminalising and misappropriation of agricultural inputs and contract produce through criminal punishment.  This contravenes Section 49 (2) of the Constitution, which provides that no person may be imprisoned on the grounds of inability to fulfill a contractual obligation – I repeat and I think this is also very important.  Our new Constitution actually says, no person maybe imprisoned on the grounds of inability to fulfill a contractual obligation.  This Statutory Instrument which the Ministry wants to impose, it actually wants to negate this very clear spirit.  In other words, we want to set it aside and say no, despite that the Zimbabweans spoke in the Referendum for the Constitution, it does not matter.  We feel that this particular provision should be set aside but we cannot set it aside by way of a Statutory Instrument.  If I were to go again to explain that, it means I might actually end up giving a lecture that you cannot repeal, any Act by way of a Statutory Instrument. 

I am sure that I will be coming here more often to talk about that and that cannot be done.  If the Minister or Government feels that a certain provision, not only the Government but even an individual, even that who is not a Member of Parliament, can motivate the change or repeal or amendment of a provision of an Act but you cannot do it by way of a Statutory Instrument.  I would have wanted to say why a Statutory Instrument in particular because a Statutory Instrument in particular is that once it has been gazetted, it becomes law and becomes enforceable immediately upon it being gazetted. The only difference is that once it has been gazetted what then follows is that the Minister responsible for that Statutory Instrument must bring it as soon as possible to Parliament. If Parliament considers it and like in this case, if the Senate agrees with the Adverse Report, then that Statutory Instrument falls away and is no longer of effect. The other way it falls away is after six months if it has not been brought to the House or has not been passed, once again it falls away.

          Statutory Instrument 248 of 2018 creates a hypothec in favour of Government to secure the money value of inputs supplied but not consumed in accordance with the scheme of contract. A Statutory hypothec is a civil law principle that allows the unpaid creditor who has secured his loan with a hypothec to force the sale of property

a)    All agricultural inputs supplied to the contract farmer;

b)   All contract produced by the contract farmer;

c)    In the absence of the inputs or produce specified in paragraph (a) or (b) or to the extent that those hypothecated items do not cover the monetary value of the inputs supplied but not consumed in accordance with the scheme contract, any moveable chattel on the land or premises of the contract farmer. Chattel is another term of items that a capable of being attached.

Sections 5, 6 and 7 provide for:

a)    The misappropriation of agricultural inputs;

b)   The unlawful sale, purchase and possession of agricultural inputs and contract produce; and 

c)    The misuse of agricultural inputs and contract produce.

The Committee is of the view that a breach of contract to repay

debt is not a crime. The first right of the aggrieved party is to approach the civil court to attach and sell securities or other unencumbered properties and recover the defaulted loan (that is agricultural inputs or produce in this case). The Committee opined that the criminalisation of breach of contract is not an option. They should not criminalise because there are other options available to the Minister of Agriculture or Government which they can rely on and use as I have already stated.

          The following options were already provided for in the Statute Book in the Committee’s view.

1)   that Clause 8 of the Command Agriculture Contract provides that the breach thereof will be dealt with under the civil law since the breach contract between the Government and the farmer is like any other civil contract regulated by law of contract.

2)   That the laws relating to the recovery of debts be strengthened. They can put stringent measures when they give fertilisers, seed and other inputs so that anyone who plans to default will find it very difficult in doing that, even those buying the inputs can also find it extremely difficult. The laws regulating the recovery of debts be looked into again by Government. They have a civil department to deal with this and they can resolve it.

3)   That a civil contract entered into by the parties is enforceable in any competent court and in terms of the Contractual Penalties Act (Chapter 8:04). Section 4 of the Contractual Penalties Act stipulates that the penalties in a contractual agreement are enforceable in any competent court.

4)   That the law relating to theft of trust property formerly referred to as “theft by conversion”, sufficiently covers the intention behind Statutory Instrument 247 of 2018. According to Section 113 of the Criminal Law (Codification and Reform) Act, (hereafter, referred to as “the Code”), theft is committed when any person is entitled to own, posses or control the property or realising that there is a real risk or possibility that another person may be so entitled and intending to deprive that other person permanently of his or her ownership. There are several other forms of theft such as making off without payment, unauthorized borrowing or use of property, spending another person’s money with the intention of refunding it or consuming another’s property with the intention of replacing it in due course. In the case of State v Kambasha and Another (HH.36-17 CA 270/15)[2017] ZWHHC 36 “ the court held that the appellants were correctly convicted of theft of trust property in the Code merely denoted a responsibility by the receiver of the money to use it for what is was intended”.

In summary, if a person is entrusted with any property whether it be hard cash or in the bank, that person is not entitled to convert the property to his or her own use without the prior express or implied authority of the owner of the property or his or her duly authorised representative. If the property is so converted to own use without the requisite authority, the crime is completed and therefore committed.  It must also be noted that the Code is very clear in Section 112 that there must be an existing contractual and ongoing relationship between the parties for the law of trust property to apply. The parties to the contract are also required to exhaust all civil remedies, including suing for specific performance and cancellation of the agreement amongst others.

Conclusively, Statutory Instrument 247 of 2018 undermines a

constitutionally entrenched right that is founded on fairness and justice to all. The Statutory Instrument goes against the founding principle of good governance, which binds not only the Ministry of Agriculture but all agencies of the State, being the principle of transparency, justice and accountability and responsiveness, iterated in Section 3 (2)(g) of the Constitution.

Further the Committee having discovered that Statutory Instrument 247 of 2018 repeals Statutory Instrument 79 of 2017, which the Parliamentary Legal Committee of the Eighth Parliament issued an Adverse Report against it. That Adverse Report was adopted by the Senate of the Eighth Parliament in 2017. Statutory Instrument 247 of 2018 contains provisions that are extremely similar in nature in particular, Statutory Instrument 79 of 2017. Lastly, civil agreements cannot be criminalised as it violates Section 49 (2) of the Constitution. The Committee unanimously resolved to issue an Adverse Report on the Statutory Instrument, as the concerns earlier raised in my discussion this afternoon.

It is my humble submission Senators that this is another assault that should not be allowed to go through because it is in direct contravention of the Constitution and that once again, like last time I was the Chairman in the Eighth Parliament as most Senators here will remember, and I came and pleaded with the Eighth Parliament of the Senate and they agreed with me. There has being no change except that there are few members of the Senate who are here and maybe the Ministry is trying its luck once again, but I will urge you not to be blinded but to honestly look at the Constitution and see what we are saying. The Constitution is totally against it and I have even cited cases which are totally against it. I have indicated that the Ministry has other remedies which they can use and we see no reason why they cannot rely on those remedies that are already there. I urge the Hon. Members to support the Adverse Report as it pleases Mr. Chairman.

HON. SEN. MAVETERA: Thank you Mr. Chair. One of our fundamental functions as Members of Parliament is to protect the Constitution and so I am finding it very disturbing when this Statutory Instrument was brought, it had an adverse report which was given by the PLC.  We do not know why the Minister responsible still wants to bring it. In other words, he is trying to force us to break the Constitution.  I think it is very unfortunate but I should say; any subsidiary law should not contravene the Constitution.  I think it is a waste or abuse of this Hon. House to continue and sit to discuss a Statutory Instrument which contravenes our Constitution which is the Supreme law of the land.

          We can only be in a position to discuss it if we amend the Constitution. That is the only position which we should take.  Why should we be laboring to go through all that process when there are remedies and instruments to deal with such contractual breach – I find it very disturbing.  Our Constitution says we are all equal before the law but this is specifically a Statutory Instrument which is being forced on us just to protect the Government.  It is not the only contractual agreement which occurs in our land. There are so many others, are they going to be guided in the same manner – no.  So why should we be sitting discussing it? 

          So with that little submission, Mr. Chair, I would urge the House to stick and uphold  the decision made by the PLC because this is unconstitutional.  We cannot be forced and be forced to sit down to deliberate about trying to break the Constitution. 

          HON. SEN. MAKONI: Thank you Hon. Chair.  Just like the previous speaker has said, I think what we are doing now is an exercise in futility.  A similar adverse report was presented to us by the PLC in the 8th Parliament and we upheld the position of the PLC.  Now the Minister of Agriculture has come back with the same complaint under Statutory Instrument Number 247 of 2018. 

          Hon. Chair, there is something called the rule of law in this country.  It does not apply to the citizens only.  It also applies to the Executives including the Ministers and the officials in Government.  Any law that subverts the Constitution is wrong, it is illegal.  It simply should be thrown out.  There are so many people across this land that enter into private agreements. If they had to be treated the same way when they default, then more than half of this nation will be criminals.

          I dare see that this year where there is an obvious drought and I would like to think that more than half the people sitting on the other side have been given Government inputs, they will not be able to pay back.  So are they all going to be criminals? It does not make sense. You cannot criminalise a civil activity, it is not right, it is wrong and this Government cannot expect us to sit here as the Senate and indulge them that way.  We have got a job of overseeing the activities of the Executive.  Where they are wrong, we should read them the riot act and this is one such time.  They cannot bring this case here and expect us to agree with them.  I think as Senate, we should do the right thing; we should uphold the rule of law. They have got remedies of recovering whatever they are owed by farmers.  They should follow those rules and not cut corners.  Thank you.

          HON. SEN. MWONZORA: I appreciate the report coming with the Hon. Member Samukange.  I just want to talk about imprisonment for a civil debt that is going to be allowed under the Statutory Instrument.  Hon. Chair the logic behind the Constitutional provision was that people who were unable to pay their debts were then lodged in civil prison where they would stay for two to three months.  When they got out and were unable to pay, they would be returned again to that prison.  The reality of our land reform programme is that it was divided into two; there was the fast track land reform programme and there was the land reform programme where people were settled rather deliberately.  However, among the later part, there is A1 and A2 as well.  This Government did not forewarn its people that you can only go and acquire land provided you are a person of means.   It said everybody is free to go and take land, so the poor, the middle class and the upper class went and took land.  They did it in good faith; now they are being told that if they fail to pay, then they can be imprisoned for that debt.  What is going to happen is an international embarrassment Mr. Chairman, where thousands and thousands of peasants who are settled in the A1 farms are going to be lodged in prison. 

          First of all, Zimbabwe does not have the capacity to lodge those people in prison.  Secondly, the duty to feed the prisoners rests with the state of Zimbabwe.  So, what you are simply doing is that you are taking people from the farms putting them in prison in order to feed them.  So, when there is a drought or any other natural catastrophe, we are going to take all the peasants in Mwenezi and put them in Chiredzi prison, take all the peasants in Mutoko and lodge them in Mutoko Prison, all the peasants in Nyanga, Makoni and lodge them either in Rusape Prison or in Mutare prison – that cannot be.  For us to allow this is to be irresponsible to our own people.  There are ways Hon. Chair of recovering debt and one of these ways is to promulgate a Statutory Instrument that all produce by people who are in debt must be sold to a particular market, then the Government can garnish its monies.  In garnishing those monies, it must always enable those people to survive.  For example, a peasant sells five bags of maize, it can garnish you one bag to recover its debt.  So this Statutory Instrument is unconstitutional.  Lastly Mr. Chairman, I am advised that this Adverse Report was given before. If the Executive is aware that there was an adverse report but nevertheless brings that Statutory Instrument back to Parliament, that is contemptuous of Parliament.  They are coming to Parliament with dirty hands.  What they ought to have done was to rectify the Statutory Instrument first and then bring it to clean their hands.  They cannot appear before us, they cannot bring a Statutory Instrument before us with dirty hands and therefore, it must be rejected.  Thank you Mr. Chairman.

*HON. SEN. CHIEF CHARUMBIRA:  Thank you Mr. Chairman, I am one of those who were in this House when a similar Adverse Report on the same law was presented to this House by the same person and I remember proposing that why do we not defer.  That is what I said last time, so that we give the Minister time to tell us what he thinks.  Coming back to technicalities, sure as a Parliament, we cannot pass a law which we honestly believe and understand to be unconstitutional.  As a Parliament, we cannot do that.  The issue is on whether it is unconstitutional, but if we are all clear, whether ZANU PF or MDC, that has proposed to pass this law, we cannot pass this law because we are the same people in this Chamber who passed the Constitution.  This is not one of those laws that we say was passed by the white people.  I want to be clear about the new dispensation because we want to have transparency.  The Constitution was brought to this House and Section 2 says, this Constitution will be the supreme law. Any law which is inconsistant with any provision of this Constitution is null and void; to the extent of that inconsistence.  We passed this in the same House that we would not pass into law any law that contravenes the Constitution.  We have to protect the image of Parliament.  The Mines and Minerals Act...

THE CHAIRPERSON:  Order.  The Interpreters are requesting you to stick to one language. 

HON. CHIEF CHARUMBIRA:  Thank you very much.  Shona is interesting but I will try.  The Mines and Minerals Act as we all know, Mr. Chairman was passed by both Houses of Parliament and His Excellency, the President has since rejected signing that into law.  We all know that because we somehow slept on the job as Parliament, the two Chambers and the President said, no, how could you pass this.  It is an indictment on the capacity of Parliament of Zimbabwe to be caught in that situation.  We have never heard the Minister’s, the Ministry and the Attorney General’s argument.  That also presents a bit of a problem to me.  I do not know whether they have invited them to the Parliamentary Legal Committee to satisfy the requirement of the principle of audi alteram partem, hear both sides, natural justice.  I believe that was done.  I do not know as I stand here whether we should say no or whether we should say, as Parliament, if we can defer and say that the Minister and Attorney-General’s Office should explain to us, otherwise we throw away that law.  I have never heard from them and that was even the handicap last time. 

So Mr. Chairman, I do not know Hon. Samukange, whether as Parliament we can say Minister, can you come and respond on this matter so that we hear from both sides.  Thank you very much.  

HON. SEN. HUNGWE:  Mr. Chairman, I rise not necessarily to debate but to second what the Chief has said.  At the same time, I am surprised because I am hearing this for the first time that the Minister concerned and his officials have been in discussion with our chief lawyer and they came to a conclusion that it should proceed, is that exactly what you are saying?  We do not know that.  We are not so sure because the other part is not here and for that reason Mr. Chairman, I would want to plead with us if we can defer this so that we hear from the Minister.  I thank you. 

HON. SEN. MUDZURI:  Thank you Mr. Chairman.  Without being disrespectful to Hon. Sen. Chief Charumbira; he has suggested that we refer to the Minister and to the permanent secretary involved since it came last time, I wonder if that is the procedure.  The procedure, as far as I understand is such that this Parliament has to make a decision and they can resubmit it if they want in a different form.  What I would want to suggest is that it is the permanent secretary may be who is being stubborn because the Ministers have changed, why should it be coming every year?  The behaviour of the Minister and the permanent secretary is ultra vires the Constitution and any debate which is ultra vires the Constitution is not warranted.  So we should just throw it out and ask the Minister some other time.

HON. SEN. SHOKO:  Thank you Mr. Chairman.  I remember the Adverse Report that came in the Eighth Parliament because I also joined in July.  That Report came up and as they said, the same Hon. Member of Parliament brought it here and read it to us.  I remember that time, we did not debate as much as today.  It looks like today we are eager to debate.  Mr. Chairman, just to reiterate what the other honourables have said, where a Statutory Instrument violates the Constitution. We do not need to look for the Minister or the Permanent Secretary.  We simply say look, it does not fit the standard that we set as the country and therefore we are simply rejecting it.  So ordinarily, I am just standing up to say the PLC did a wonderful job; they did it according to the standards that we set here.  Therefore, this House should stand up and reject the Statutory Instrument.  If they want to bring it back some time, they can bring it back.  The alternatives are there.  They have explained to say this is a civil debt.  So, if it is a civil debt, you will proceed according to the way you recover your civil debts and it is not criminal in any way. 

          If we start saying it is criminal, it means all the parastatals will come here and criminalise everything. I can give you a very good example because I worked for the NRZ, so I understand.  Even a person who has taken a ticket or has put his goods there and they have got an agreement to say you pay monthly, if he does not pay, he will be taken to jail.  We do not want to do things like that.  The Constitution is clear Mr. Chairman.  Let us reject the Statutory Instrument.  Let us push it back and if they want to bring it back, they can bring it back.  For now, we are saying the Statutory Instrument is ultra vires the Constitution and therefore it is not acceptable in this Hon. House.  I thank you Mr. Chairman. 

          HON. SEN. MOHADI:  Thank you Mr. President.  I would first and foremost want to thank the PLC for their report.  Mr. President, I do not think there is anything bad if this report is taken back to the Minister.  If the Minister does not comply, that is when we can take the final stand to say we are rejecting it.  As of now, the Minister has not given himself time to be with us.  We kindly request that the Minister attend to this issue.  With these very few words Mr. Chairman, I thank you. 

          HON. SEN. MWONZORA:  I have a point of order.  Mr. Chairman before us is a bad law; a law which is unconstitutional, a law which was brought to this House and was rejected by this very House.  There is no reason why we must play back and forth between this House and the Ministry.  There is bad law and the procedure is, if there is bad law we make a decision. 

          THE CHAIRPERSON (HON. SEN. LT. RTD. GEN. NYAMBUYA):  Hon. Senator, you are debating.  Can you make the point of order?

          HON. SEN. MWONZORA:  The point of order Mr. Chairman is that, now that we are seized with it, it has to be substantively dealt with. It does not have to be referred.  Thank you.

          HON. SAMUKANGE:  I agree with Hon. Sen. Chief Charumbira that we defer the proceedings and adjourn to tomorrow.  Hopefully, the Registrar will refer the adverse report to the Minister but our practice is that before we write an adverse report, we normally refer it to the Minister responsible.  Previously, it was Hon. Dr. Mombeshora.  He came with his team and they did not agree.  We advised them that we were going to issue an adverse report.  Later, Hon. Minister Shiri came with the same team of lawyers and I think that maybe the lawyers from the Attorney General are the ones that are misleading them.  Again, we advised them that we did not agree.  This is the reason why we have this adverse report.  So, we have done the consultation. 

However, I agree with those who are of the view that the Minister must be given an opportunity.  Maybe he can come and persuade the Senate that despite that it contravenes the Constitution, he has got another explanation – [HON. SENATORS:  Inaudible interjections.] – give him the chance.  In a democratic space, let us give him the chance.  Finally, I must say what has happened in some other adverse reports, I had two others that I needed to present.  When the Ministers get to know that the matter is now being debated in Parliament, they quickly approach me and say we want to withdraw. 

THE CHAIRPERSON:  Hon. Samukange, will you just move that I report progress and then we are going to adjourn it to tomorrow.

HON. SEN. MUDZURI:  Point of order Hon. Chairman.

THE CHAIRPERSON:  What is your point of order?

HON. SEN. MUDZURI:  My point of order is that it is not fair for anyone who is violating the Constitution to continuously repeat that violation and we continue to say we refer.  It is a violation which we have all agreed.  That is my point of order.

THE CHAIRPERSON:  Hon. Mudzuri, your point of order is noted.  What I am simply doing is procedure.  We are going to adjourn anyway.  So, tomorrow you will have the opportunity to make your point. 

HON. SAMUKANGE:  I move that you report progress and I seek leave to adjourn until tomorrow.

Motion put and agreed to.

House resumed.

Progress reported.

Committee to Resume: Wednesday, 6th March, 2019.

MOTION

BUSINESS OF THE HOUSE

          HON. SEN. MUZENDA: Madam President, may I move that Orders of the Day Nos. 2 and 3 be stood over until all the other Orders of the Day have been disposed of.

          HON. SEN. MOHADI: I second.

Motion put and agreed to.

MOTION

PRESIDENTIAL SPEECH: DEBATE ON ADDRESS

          Fourth Order read: Adjourned debate on motion in reply to the Presidential Speech.

          Question again proposed.

          HON. SEN. KHUPE: Thank you Madam President for giving me this opportunity to also contribute to this motion which was raised by Hon. Sen. S. K. Moyo. I want to start by saying I congratulate as I have done it in other fora, but I want to do it in this august House, His Excellency President E. D. Mnangagwa for winning the Presidential Elections which took place in July 30, 2018. It was really a tight contest but like any other contests, there is always one winner and it happened to be him. So, I want to congratulate him.

          I also want to congratulate all people who are here who also became Senators by elections starting with the President of the Senate and her Deputy, Rtd. Gen. Nyambuya. In one of his key words, His Excellency said and I want to quote, “Parliament is a sacred institution”. I know there is no debate about that. It is a sacred institution and as a result, from the President’s Speech, I have to think and I have concluded that one of the key result areas expected of the 9th Parliament has to do with hard work to formulate legislation that will be the basis of broad-based empowerment to free Zimbabweans in their diversity.

          Parliament and Senate, it is my belief that we should come up in support of the presentation by His Excellency. We can do that by coming up with legislation that will free people from poverty and corruption so that by the end of 2030, we will be in a better situation. These things can happen if you are really having one vision, one opinion and one mind so that we can achieve a lot.

          I want to quote from a Canadian theologian whose name is Dr. Moses Cody. In his book, ‘Masters of their Destiny’, he said people can do ten times what they think they can. As Senators or as Zimbabweans, what we doubt we cannot achieve under normal circumstances is worth working together; we can actually achieve ten times than what we think. It is true according to His Excellency that the alignment of laws to the Constitution which became necessary as the consequences of the adoption of the current issues remain work in progress. I think one person who will agree with me is Hon. Sen. Timveos that legislation like the Disabled Persons Act have been waiting to be aligned to the Constitution for a long time and I hope by the end of the term of this Parliament, all will be in place.

          Madam President, one of the issues which was touched by His Excellency in his speech was the Traditional Leaders Act which he said would be amended in line with the Constitution and more particularly, to provide for stability and provincial assemblies. I think the majority will agree that traditional leaders in our country are now not being taken serious. They are not given the respect which is due to them. Everyone takes a traditional leader like a small boy or an equal boy to anybody.

          I hope the new Act that will be established will give traditional leaders the power they deserve. For example, I have seen in many cases where a traditional leader is approached by a citizen in a local area. The traditional leader makes a judgement and somebody just stands up to say ah, ndine marights angu chief, ngilamarights ami  chief, meaning that I also have my rights, you appear to be oppressing me telling the chief. Really this thing has to stop.

          So, I hope, wish and believe this Session of Parliament will come up with legislation that is inclusive and also look at the rights and aspirations of persons with disabilities.  With these few words, I thank you Mr. President.

          HON. SEN. MUZENDA: Mr. President Sir, I move that the debate do now adjourn,

          HON. SEN. MOHADI:  I second.

          Motion put and agreed to.

          Debate to resume: Wednesday, 6th March, 2019.

MOTION

BUSINESS OF THE HOUSE

          HON. SEN. SHOKO: I move that Order of the Day, Number 5 be stood over, until all the other Orders of the Day have been disposed of. 

          HON. SEN. CHABUKA: I second.

          Motion put and agreed to. 

MOTION

FIRST REPORT OF THE THEMATIC COMMITTEE ON HUMAN RIGHTS ON THE ZIMBABWE HUMAN RIGHTS ANNUAL REPORT FOR THE YEAR ENDED DECEMBER

Sixth Order read: Adjourned debate on motion on the First Report of the Thematic Committee on Human Rights on the Zimbabwean Human Rights Commission annual report. 

Question again proposed.

HON. SEN CHIDAWU: Mr. President, I move that the debate do now adjourn.

HON. SEN. MUZENDA:  I second.

Motion put and agreed to.

Debate to resume:  Wednesday, 6th March, 2018.

MOTION

IMPORTANCE OF INTERCROPPING AND GROWING OF SMALL GRAINS

Seventh Order read: Adjourned debate on motion on the need to educate the nation on the importance of intercropping and growing small grains. 

Question again proposed.

HON. SEN. TONGOGARA: Mr. President Sir, I move that the debate do now adjourn. 

HON. SEN. MATHUTHU:  I second. 

Motion put and agreed to.

Debate to resume:  Wednesday, 6th March, 2018.

MOTION

SILTATION IN RIVERS AND DAMS

          Eighth Order read:  Adjourned debate on motion on the level of siltation which is threatening the existence of most rivers and dams.

          Question again proposed.

          HON. SEN. CHIEF CHUNDU:  Mr. President, I move that the debate do now adjourn.

          HON. SEN. NGEZI:  I second.

          Motion put and agreed to.

Debate to resume:  Wednesday, 6th March, 2018. 

MOTION

CORRUPTION ALLEGATIONS BY THE ZIMBABWE CRICKET BOARD

          Ninth Order read: Adjourned debate on motion on the allegations of corruption by the Zimbabwe Cricket Board.

          Question again proposed. 

HON. SEN. MWONZORA:  Mr. President, I move that the debate do now adjourn. 

          HON. SEN. WUNGANAYI:  I second:

          Motion put and agreed to.

Debate to resume:  Wednesday, 6th March, 2018. 

MOTION

OUTBREAKS OF VELD FIRES

          Tenth Order read:  Adjourned debate on motion on the recurrence of outbreaks of veld fires with devastating effects on the environment. 

          Question again proposed.

          HON. SEN. GUMPO:  Mr. President, I move that the debate do now adjourn.

          HON. SEN. MOHADI: I second.

          Motion put and agreed to. 

Debate to resume:  Wednesday, 6th March, 2018.

MOTION

PROTECTION OF CATTLE AGAINST TICK-BORNE DISEASES

          Eleventh Order read: Adjourned debate on motion on the call to control tick borne diseases affecting livestock in Zimbabwe.

          Question again proposed.

          HON. SEN. CHIMBUDZI: I move that the debate do now adjourn.

          HON. SEN. TSOMONDO: I second.

          Motion put and agreed to.

          Debate to resume: Wednesday, 6th March, 2019.

          MOTION

REPORT OF THE 139TH ASSEMBLY OF THE INTER-PARLIAMENTARY UNION (IPU)

          Twelfth Order read: Adjourned debate on motion on the Report of the 139th Assembly of the Inter-Parliamentary Union (IPU), held in Geneva, Switzerland.

          Question again proposed.

          HON. SEN. SHOKO: first I would want to thank the Chairman of the SDG Committee because this is where this is coming from and I am also a member of that Committee. SDG simply means Sustainable Development Goals. I also want to thank the people that went to this meeting in Switzerland. Zimbabwe as a country signed for these SDGs and said they would do what is needed in those SDGs. There are seventeen goals but Zimbabwe is dealing with ten. You might ask why they are dealing with ten. The seventeen goals can be achieved by dealing with the ten. There is dovetailing or inter-relationship. If you deal with another one, you are also dealing with another one. So there are ten of them that we are looking at. It is also good for me to read the goals.

          These are the areas that we want to deal with when we are talking about these goals. We want to eliminate poverty, hunger, deal with health issues, education and global warming. Global warming is the one that is called climatic change. It changes the climate. It affects the climate where you will then find flooding, a lot lightning and wind. Another goal is gender equality. In our own Constitution, Section 17 talks about gender equality which simply means kuenzanisa females and males. For example, in Parliament I am a Senator and there is a lady Senator also. If I am being given a bicycle by Parliament or there is a condition that says I must be given a bicycle, it also means to say the female must be given a bicycle. That is what we mean by gender equality. Gender equality in many cases has been distorted where we then find conflicts in the home because someone will be saying pano apa taenzana, no. that is not gender equality. Gender equality means what I am simply saying.

          There is also the issue of water where we are to get adequate water for our people, sanitation. If you go to a school or the rural areas today, you find people still going into the bush or a school does not have flush system toilets, the ones we use here in town. Then we have the issues of energy, urbanisation and environment. In this House on the Order Paper, we have a motion that talks about environment where people are causing veld fires, that is environment that they are talking about. Then we have social justice which we must practice.

          Mr. President, the Committee that went to this meeting had issues that they had to deal with. The first issue that they dealt with was “Parliamentary Leadership in Promoting Peace, Development in the age of Innovation and Technology Change”. I am very glad that we were also recognised as the Parliament of Zimbabwe because our Speaker for the National Assembly was elected as Chair of another Committee. We also had one of our members in the SDG Committee also elected in the Standing Committee. That is Hon. Sen. Muzenda. She was elected in that Committee and we are very proud to say we have a committee that has people who have been recognised worldwide. They did not end there.

          They also discussed in the Forum of Women Parliamentarians issues like strengthening inter-parliamentary cooperation on migration governance in view of the adoption of global compact  for safe orderly and regular migration. 

They also discussed the issue of gender equality in science and technology; in this country we call it STEM.  They believe that everyone must be taken along when they are discussing about STEM.  The girl child must be encouraged to be taking those areas that were reserved for the boy child. 

They also discussed about young parliamentarians.  The discussion was that the young parliamentarians must be encouraged to participate and in this country, young parliamentarians are those that are 40 years and below.  In Zimbabwe, those below 40 years of age cannot go into the Senate but only those above 40 years.    However, they encouraged that young politicians must lead our political parties.  We have had debates where others were even saying the Constitution must be changed, the President must be 52 years but the world is saying you must allow the young boys and girls to come into Parliament and debate issues so that they bring the new thinking.

Mr. President, when I talk to my children, I always tell them you are not educated.  They asked why and I told them that I wrote Oxford and you wrote ZIMSEC.  However, if you compare what I was doing in Oxford, that is the syllabus, there is a very big difference between us and them.  So that was one of the items that were discussed in this particular meeting of the 139th IPU Assembly.

Mr. President, it is very important that this House understands that the issues that were discussed there are issues that the leadership must understand.  If they are discussing climatic change, it is us who must take it back to the people and explain what climate change is all about.  Presently, what happens is that the Hon. Member will be asked to say you will have SDG’s – what does SDG’s mean and which are the areas that are covered by SDG’s?  So, as the SDG’s  Committee, we feel that we must also come down here and educate our other colleagues about what the SDG’s are concerned about.  So, that is very important for us to come down here and help each other to understand what we are talking about when we talk about SDG’s and Climate  change.  It is an advantage that we had such a committee that brings in all that they have learnt outside so that we understand and when we go back to our constituencies, we are able to then explain to the people that brought us to this House.

So, I want to persuade the Hon. Senators here to not only understand from their point of view, they must also understand what is happening in other committees.  The Committee that I am talking about, the SDG’s is a very important committee because it covers all the other areas, all the other Ministries.  We are sort of a supervisory committee because we are in all the committees that are in this Parliament.

Mr. President, I am kindly appealing to the Senators to ask for this report.  The report is available, can be availed to yourselves so that you can read and understand the topics that are being covered here.  When you have meetings in your constituencies, you can then explain what climatic change is all about, the issues of gender, sanitation, water and what the Government is supposed to do.  For example in Budget; what are they doing about education, health? Many of you, when we went for the budget seminar, you heard that there is something called Abuja Declaration.  The Abuja Declaration deals with health and the SDG Committee says for us to get to the right issue on health, let us implement the Abuja Declaration; because the Abuja Declaration says 15% of the budget must go to health.  It therefore means that if 15% of the budget goes to health, you will be able to get medicines in the hospitals, the best treatment in the hospitals and the best human resources because there is money to that effect.

Mr. President, when we talk about these things, we are not talking about political parties but the people that brought us here.  So, it is very important that the Members understand where we are coming from when we are debating these issues.    I thank you.

HON. SEN. MUZENDA: I move that the debate do now adjourn.

HON. SEN. CHIMBUDZI: I second.

Motion put and agreed to.

Debate to resume: Wednesday, 6th March, 2019.

MOTION

UPGRADING OF TOURIST FACILITIES IN KARIBA

Thirteenth order read: Adjourned debate on motion on the strategic role of tourism to the country’s economic development.

Question again proposed.

HON. SEN. MBOHWA: I would like to thank you Mr. President for affording me this opportunity to debate on this very important motion which was brought to this House by Hon. Sen. Gumbo and seconded by Hon. Sen. Tongogara. It is true if done well, tourism contributes significantly to the growth of our economy in Zimbabwe.  Tourism is a major foreign currency earner to our country and even the world at large.  Tourism is also a source of revenue or income to our country from our domestic tourists.  Mr. President, through tourism, there is culture infusion and multi-cultural tolerance which means people will be able to share ideas, culture and technology.  This will also help to improve or strengthen international relations between countries, hence promoting investment opportunities for our country.  Having investors in our country, Mr. President will help us to have modern hotels, lodges, good roads, curio shops and talk of anything you would think of.  We will also have recreational facilities like swimming and fishing. 

As the mover of the motion said, in Kariba, there is need to have an airport, I need to support that also.  Easy accessibility to resort areas helps to lure tourists to our country.  Imagine it is easy to get from Harare to Victoria Falls by air but will it be easy for someone to get to Karibafrom Victoria Falls? It is more than 1500 km by road. It is like a kilometre if someone comes from Harare, flies to Victoria Falls, from Victoria Falls, flies to Kariba, from Kariba, flies to Inyanga and from Inyanga flies to Great Zimbabwe.  That will improve our tourism industry.  I think every resort town should have an airport so that the tourists will easily link all tourist areas.  Imagine how much employment will be created with all those things in tourism.  Mr. President, I feel, and that is my opinion, that tourism is being grossly underutilised in Zimbabwe.  I think the Ministry of Environment and Tourism should move a step up and try to preserve the little things that we have. 

Let us talk about the natural resources that we have, our game parks are almost defunct, empty.  There are no pangolins, no wild dogs and any animal you would think of.  Who would like to visit those empty game parks from abroad, no one and I think something should be done.  I think the Ministry should try to do something.  In Gokwe North, there is Chirisa Game Park and it is empty.  There is Nyaurungwe Game Park and it is empty but hundred herds of elephants and other animals are found in the surrounding rural settlement destroying property.    Hyenas are killing goats day in, day out in Gokwe North and they go scot free.  They should find ways of regrouping or harnessing those animals back where they are supposed to be.  Avail water in those places because that is the core issue.  Without water, they will get out again. The Ministry should not just focus on natural resources at game parks alone but even our national heritages. 

I went to Great Zimbabwe when I was a school child and what I saw those donkey years back is what is still there right now.  No other form of entertainment and it becomes monotonous like what Hon. Sen. Chief Charumbira said. No one would want to go to Great Zimbabwe to see the same things every time.  Someone would want to go to Great Zimbabwe to visit the ruins, after visiting ruins, he goes fishing, after fishing, he or she swims and after swimming in the evening, you relax in a good restaurant or hotel but that is all history.  It means all those areas need upgrading.  Mr. President, I think the Ministry should also move to increase more tourist areas.  If you go to Gokwe North, there is Gandavaroyi Falls.  Some construction had started long back but they have since stopped and there is something cynic about the area.  I think the Chiefs can help me there. Long back, all the witches used to be taken to Gandavaroyi Falls as far as Gutu, Zaka rinopisa, all the names you name them, they will be thrown into Gandavaroyi Falls, thousands of kilometres. 

There are falls, though they are small as compared to Victoria Falls and there is a deep gorge where you cannot see its depth.  So it means there is something interesting in that and it only needs to be improved.  We have spring water in Denda, Chireya but no one looks at it.  If someone goes North, he will go to Denda, Gandavaroyi, Chirisa Nyaurungwe and en route to Kariba.  More things need to be done to add more tourist centres. 

Lastly, Mr. President, let us hope you are not going to stop me like the other day.  As legislators, we should lead by example.  Instead of visiting these resort areas when on parliamentary business, we should learn to take our families there like Mr. Shoko.  He was telling me that sometimes he would take his wife to Kariba and I said yaaah, ndiyo topic yandiri kuda kuno bata nhasi, so that people from the communities that we come from will cherish and follow suit. 

With these few words, I would like to thank you Sen. Gumbo for the motion and thank you Mr. President.

HON. SEN. GUMBO:  I move that the debate do now adjourn.

HON. SEN. SHOKO:  I second.

Motion put and agreed to.

Debate to resume:  Wednesday, 6th March, 2019.

On the motion of HON. SEN. MUZENDA, seconded by HON. SEN. MOHADI, the Senate adjourned at Twenty Minutes past Four o’clock p.m.

Senate Hansard SENATE HANSARD 05 MARCH 2019 VOL 28 NO 34