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SENATE HANSARD 17 MAY 2018 VOL VOL 27 NO 42

PARLIAMENT OF ZIMBABWE

Thursday, 17th May, 2018

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

PRAYERS

(THE HON. PRESIDENT OF THE SENATE in the Chair)

ANNOUNCEMENT BY THE HON. PRESIDENT OF THE SENATE

BILL RECEIVED FROM THE PARLIAMENTARY LEGAL COMMITTEE

          THE HON. PRESIDENT OF THE SENATE: I have to inform the Senate that I have received a Non-Adverse Report from the Parliamentary Legal Committee on Statutory Instruments published in the Government Gazette during the month of April, 2018.

MOTION

BUSINESS OF THE SENATE

          THE HON. PRESIDENT OF THE SENATE: Since there is only one Minister, may I make a suggestion that we stand over Questions Without Notice, Questions With Notice and Orders of the Day Nos. 1 to 11 until Oder No. 12 has been disposed of. I am also appealing with the Minister not to leave the Senate after we are done with this Bill.

          Motion put and agreed to.

SECOND READING

INCOLVENCY BILL [H.B. 11, 2016]

          Twelfth Order read: Second Reading: Insolvency Bill [H.B. 11, 2016].

          THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Madam President.  I have before the Senate the Insolvency Bill which Madam President will allow me to explain some of the provisions of the Bill.  Let me start by highlighting that the subject area of the Insolvency Bill that I am presenting to you today is not an often traded path.  It is a highly technical area of law which calls for a thorough application of the mind by Hon. Senators. However, let me first of all demystify the subject of insolvency before I outline the purpose of the Bill and the philosophical principles upon which it is based.  So, Hon. Senators, bear with me, it is a very sophisticated Bill and field of law so I will try to make sure that I explain it in simple terms so that we can move together.

          Madam President, insolvency is in broad and generic terms a phenomenon where a person, partnership, company or an entity in competitive business is unable to pay debts.  In legal terms, a meticulous definition locates the essence of the concepts of insolvency in a debtor’s ultimate inability to meet financial commitments when upon a balance of liabilities and assets, the former exceed the later with the consequence that it is impossible for any of the liabilities to be discharged in full at the time of falling due.

          This definition however, has been critiqued because even where a situation arises, where a company’s assets ultimately exceeds its liabilities but it is unable to pay its debts as they fall due, it will be held to be insolvent.  Therefore, inability to pay debts is at most evidence of insolvency, albeit not conclusive in itself.  However, I will bear it, but it is not conclusive in itself. 

          Madam President, the problem arises from the conceptualisation of insolvency and the self evident truth that the phenomenon of insolvency has gathered momentum and has over the last decade crystallised into one of the cardinal pillars of corporate and commercial dynamism at the global, regional and national levels is a wake-up call to our jurisdiction’s imperative need to review its insolvency law.  By sponsoring this Bill, I mark the central watershed of a noble process of reviewing and modernising our national insolvency regime that will enhance the efficiency and effectiveness of our insolvency systems.

          Madam President, Zimbabwe joined the United Nations Commission on International Trade Law as a member State in 2016.  The UNCITL was established in 1966 with the view to promote and advance the progressive harmonisation and unification of the law of international trade.  This was envisaged to be executed through the preparation and promotion of the utility of legislative instruments in cardinal aspects of international trade and commercial laws such as arbitration, procurement and insolvency.  This coincided with the work of the enforcing contracts and resolving insolvency thematic working group of the ease of doing business response agenda which was launched by the Government in 2015 where-in the resolution of insolvency cases were identified as one of the key factors crucial to the effective and efficient running of business enterprises.  It was also noted that the current legislation governing the resolution of insolvency cases was scattered in several pieces of legislation and outdated, thereby lengthening the process of resolving such cases.

          Madam President, the Bill therefore seeks among other things, to codify into one coherent piece of legislation the insolvency laws of Zimbabwe; supplement judicial management mechanisms with other modern reorganisation processes so as to ensure timely payment of creditors; modernise the winding up provisions that were previously under the Companies Act [Chapter 24:01]; provide for cross border insolvency resolutions as well as provide for the regulation of insolvency practitioners.

          Madam President, in view of the foregoing, this Bill provides for the administration of insolvent and assigned estates and the consolidation of insolvency legislation in Zimbabwe and to repeal the Insolvency Act [Chapter 6:04] and to provide for matters connected with and incidental to the provisions of the Bill.  Madam President, this Bill provides for ways in which a debtor may be liquidated and these include application by the debtor or by the creditor.  Nevertheless, this Bill does not apply in respect of banks, insurance companies, registered security exchange or a person registered in terms of the Securities Exchange Act.  These are governed by another Act and they are not covered by this Bill.

          Madam President, the Bill sets out liquidation orders and the commencement of the liquidation.  It also sets out the effects of liquidation on the debtor and his or her property and sets out the rights and obligations of the debtor during insolvency.  In addition, this Bill provides for impeachable dispositions including set-offs and presumptions that relate to property that is in possession of the debtor and sets out the effects of liquidation upon certain contracts that include leases, and contracts of service.

          Madam President, this Bill will also provide for the appointment of a liquidator and sets out the powers and duties of such liquidators.  It also provides the procedure for meetings and examination of a debtor and other persons.  It provides for claims against an insolvent estate and sets out the procedure for the election, appointment and disqualification of liquidators.  Furthermore, this Bill sets out the rights and duties of creditors as well as for providing for costs of liquidation and application of free residue.

          Madam President, this Bill sets out special provisions also relating to the sale of property that belongs to an insolvent estate, provides for banking accounts, investments and moneys that belong to an insolvent estate.  It also caters for estate accounts, distribution as well as the collection of contributions as well as the rehabilitation of natural persons and its effects.  This sets out special provisions relating to trusts, companies and other debtors in liquidation other than natural persons or partnerships.  Madam President, the Bill will also provide for personal liability, fraudulent, reckless or insolvent trading, pre and post liquidation composition and sets out corporate rescue procedures.  This is modern reorganisation mechanisms that are designed to revive a failing company thereby ensuring its continued existence.

          In addition, this Bill provides for punishable offences and provides for among other things, the procedure for the resolution of cross border insolvency.  Lastly, it sets out the general provisions relating to the resolution of insolvency.  Madam President, I firmly believe that Hon. Members, with this brief explanation will now appreciation the scope of this Bill.  Principally, it will deal with structural issues that arise from the relationship between insolvency law and other laws.  The types of mechanisms available for resolving a debtor’s financial difficulties and the institutional framework required to support an effective insolvency regime.

          Furthermore Madam President, the Bill will enhance our insolvency regime to achieve a balance between the need to address the debtor’s financial difficulty as quickly and efficiently as possible.  The interest of the various parties directly concerned with that financial difficulty, that is mainly creditors and other stakeholders in the debtors’ business and public concerns stemming from impact on employment and taxation.

          Madam President, I now commend the Insolvency Bill [H. B.11, 2017] to the House and move that the Bill be now read a second time.  I thank you Madam President.

          *HON. SEN. MASHAVAKURE: Thank you Madam President.   What the Minister was explaining is that the long and short of it is that we talk of a company which has failed to carry out its business.  He has also said the banks and other financial institutions are not going to be included in the Insolvency Act.  I attended a certain function in the morning where this Minister was supposed to be present but he was absent.  In that financial meeting, they said the Banking Act which we passed in this august House is not going to be held responsible by this law.  It is not solving these problems; hence it was supposed to be included. 

We also have the Company Entities Bill which we feel should be followed.  We are talking of ease of doing business but the procedures which you are following show that we still have a laborious way in opening up business.  I thought you were talking about one stop shop which should solve all these problems. The main reason why some of these companies which are banks and financial institution that he talked about are exempted from this law should not be covered by this is because they are covered by another piece of legislation. He did not mention which piece of legislation covered them. At that meeting, one of the experts who discussed this said if you have a registrar who looks into all these problems, we find that that officer is going to do fundraising, talking advantage of the loopholes. The question was why were the banks left out? Is it because they appealed to leave them out because you need to rope them into this law as they could be the culprits who may spoil what will have been prepared by Government.

          *HON. SEN. SHOKO: Thank Hon. Minister for bringing this Insolvency Bill into this august House. We have a lot of companies in this country. These companies are being liquidated because they will have become insolvent. If I am wrong in my assumption, I need to be corrected. When we look at this liquidation, there are people who are claimants to that estate. The workers of that organisation which is being liquidated will be owed salaries in arrears. When people are talking of the liquidation of an organisation the first beneficiaries are the creditors. The workers in the line of priority are number six or five, which means they are looked down upon and are not supposed to benefit. This person who is being denied finance is the person who is really in dire need of finance as a poor worker who was doing his work earnestly.

I feel this law should be rectified so that we change it to say the worker should be the first beneficiary when going for liquidation. As we talk now, we are not reflecting that we are the people’s Government because when we became independent in 1980 we used to sing songs welcoming the comrades who had fought in the war of liberation and we were solving problems at that time. We are saying now that we want to work on this Insolvency Bill, we are protecting the culprits after they have run a company badly and they are the ones who benefit, instead of the workers.

I will talk of BHP which was a mining company that came to mine in this country and mined for five years. It was given a tax holiday whereby they were not going to pay any tax but when the time for them came to pay taxes, they liquidated the company and went back to Australia. The victims in this case were the workers who in most cases live in western suburbs but the people who were in the management also benefitted and yet the workers did not get anything. Now that we are crafting this law, let us take into account the worker who suffers unnecessarily because of mismanagement by the leadership. Please, let us put our workers at the top of the list so that these workers can be able to pay rent and take care of their families, instead of prioritising those people who will already have benefitted in the leadership. I thank you.

*HON. SEN. MARAVA: Madam President, the Minister has introduced this motion in this House and according to him he feels it is beyond our understanding and a technical subject but we do understand it because when we talk about somebody failing to run a business or thriving business which has been in business time immemorial crumbing. Let us not think that insolvency was introduced by the westerners. We know in our culture you would have a credit and when you fail to pay that credit, you find other ways of paying. The compensation at times would even involve paying with your child(ren) or wife or at times you would give your cattle if you fail to pay for the grain which you will have borrowed from your neighbour.

Let me emphasize again that insolvency is not a technical subject because it involves somebody who borrows money and somebody who lends. If you have borrowed something from a creditor, it means you have obligations which you have to fulfill in honouring that law. If you fail to pay you become a bad debtor. When you manage to pay, it means there is goodwill which has been created between the creditor and the debtor, and some organisation will stand to benefit. Let us approach this with a holistic mind. If we say we are going to work on this law and align it with the current situations, we will do that.

Let us not carry out a piecemeal job because there are many reasons which means to the crumbling down of businesses. At times it is not all their fault and the reasons why the business fails to continue, especially if you have a business or if you are running a vending or formal trade business, at times the problem does not lie with them. We know sometime in this country people were doing business in a haphazard manner and progressing but because of inflation everybody started to be a poor person because of the problems we had owing to the situation in the country and businesses broke down. We are talking of a labour which we saved.

When you have saved that money in a bank or financial institution and that institution breaks down, there is a problem in that you also suffer. At times you fail to continue with business because you would have grown old and you cannot go back into business and get money for reinvestment. Therefore, if we have introduced a new law we should be aware that even a country is a debtor to other countries because we depend on each other. If it is a country to country situation, why are we protecting our banks?

We have had people falling into problems because banks have failed to take their businesses seriously. When the bank fails to operate, I have no power to fight that bank or even hire a lawyer because they have been keeping my money. We also talk of small business people, the informal traders who were saving their money in those banks. When we talk of growth points, there are some people in the growth points who no longer have the enthusiasm to move and create towns in growth points. Some growth points were tarred but because of the financial situation in the country, the tar has been graded and we now have gravel roads.

I am appealing to you Hon. Minister if you say you want to repeal the Insolvency Act for the benefit of the people of Zimbabwe, please, it should cover all the people of Zimbabwe, including institutions such as these banks.  There should be no sacred cows like what is obtaining now, we need serious financial integrity. 

We are saying, ‘Zimbabwe is open for business,’ and yet we are protecting the banks.  What will happen if the banks misappropriate the funds, they will mismanage businesses and in that case, the big companies should also be included in this new regulation, both big and small, the big industries and the informal traders.  We are saying they should be registered like big companies and when they bank their money with banks, they should know that they can take action against a bank because the bank would have been reckless in doing business leading to the crumbling of the business.  These people are working so hard…

*HON. SEN. TAWENGWA: On a point of order Madam President.  We are on question time is that not so?  We are asking questions in order to seek clarification on areas we have not understood.  We are talking of insolvency, which relates to business enterprises that have crumbled because of management which was there, or the situation which was there.  We are not giving a management of business lecture.  I am saying, let us stick to the Bill.  Let us not talk about local Government and Housing, especially in the maintenance of roads.  If we stick to the programme, we are going to progress.  I may not be the presiding officer but I am making a point of order.  I thank you.

THE HON. PRESIDENT OF THE SENATE: As you know, some people take kilometers to arrive to a point.  I do support what the Hon. Senator has raised as a point of order.  I was just being patient.  When you debate something out of the Bill, you are misleading the rest of the House, so please, I was just trying to be patient.  Thank you for your point of order, let us stick to the Bill, otherwise you mislead the House.

HON. SEN. MARAVA: You can help me inform the Hon. Member that this is not question time, we are debating. I think he has forgotten.

THE HON. PRESIDENT OF THE SENATE: No, he has not.

*HON. SEN. MARAVA: So, that is the issue I am talking about.  If there is a problem that happens to John and a neighbor is a citizen, both people should be involved.  I am saying, if a company in Zimbabwe is borrowing money and all our money comes from the Reserve Bank, which is the bank of the bankers, we should receive the same treatment.  If I borrow $10 from the bank and the company borrows $1 million, we should also be taken as people who would have borrowed money from the banks. 

If that banker is given immunity from prosecution, then this is going to destroy the economy of the country.  I said I will take that angle.  I am not trying to blame the banks and say they are inefficient but I am only saying this new law should also include these banks.  I may have meandered, but I think in short; the banks should also be covered by this Insolvency Act and all other financial allowances should be covered by this Bill.  There should not be sacred cows.  I thank you.

*HON. SEN. CHIPANGA: Madam President I am very grateful for the Minister who brought in this Insolvency Bill. I think the language that he was using, such as assets, liabilities and all the financial jargon, I am pleased to say that, this law is going to align with the current situation because some of the laws which have been used are now archaic, but we are saying these laws should now come under one roof so that if somebody fails to pay creditors, they will be prosecuted under the particular law.

The other point I may want to raise is that; there is an Hon. Member who made a meandering contribution and said, when a company is insolvent and is to be liquidated, we definitely need to take care of the workers.  They should be the top on the priority list.  We talk of big companies, even if they are deprived of their $2 million, they may not feel it, but if the worker misses a salary, there is a problem in the running of the family.  I think the Minister has explained to us.  I am persuading my fellow members to accept this Bill so that we carry on with other businesses.

HON. SEN. B. SIBANDA: Thank you very much Madam President.  I thank the Hon. Minister for this piece of legislation.  I seek a few clarifications; the current process of liquidation, in a number of instances, it addresses the question of your current inability to pay the debt without taking into account your total potential, which is your current and projected balance sheet.  I hope we are together there.  How does the new Insolvency Bill address that?

Secondly, I agree with my colleagues - can the Minister give us a strong reason for excluding banks and insurances.  Look at where we are; if you read the report of the commission of inquiry into the way that insurance companies have been running, you will find that they have been running on an unenviable principle where depositors’ investment has not been professionally handled.

The other thing I want to talk about is free residue, the fact that sometimes there is a free residue says that our process of closing down companies is not exhaustive in terms of audit and liabilities because if one is liquidated, they should really not have free residue.  It should be saying you are down and out and if we are still talking about free residue, then that says once again that the process has not been thoroughly exhausted from a financial aspect. 

Lastly, personal liability for directors; in terms of the Bill, could a director be sued if his company is liquidated.  The last point is, you talked about cross border insolvency regulations.  What happens if you have got a cross border liability and eventually liquidation where there is no bilateral agreement between us as Zimbabwe and the other country?  I would need some clarification there.  I thank you Madam President.

          *THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI):  Thank you Madam President.  I want to thank the Hon. Members for the debate and for their concerns that they have been raising, starting with Hon. Sen. Mashavakure who asked as to why this new regulation does not cover the banks and other financial institutions.  Hon. Sen. Marava also showed concern over this.  Hon. Sen. Sibanda and Hon. Sen. Shoko also talked about the non-inclusion of these financial institutions. 

When banks are given licences, they are given that under the Banking Act.  As a result, they fall under the Reserve Bank.  They are supposed to deposit a certain amount which is used as security as the Reserve Bank, which means these are different from individuals who want to form a company.  They go to the Registrar of Companies and register that company and start trading.  This is different from financial institutions because these private companies, if they fail to pay, we need to follow that law which says we pay up the people we owe money including workers.  We also lay out the ways and means of paying up those monies.  During the liquidation process, we determine how we are going to discard the assets and distribute the accruing finances equitably. 

When banks become insolvent, the Reserve Bank has procedures which are followed so that they can cushion these banks.  This is different from individual businesses or small enterprises.  What has been done is that the monies which have been deposited into the banks by the individuals will be protected, which is different from the informal traders and the way they trade.  There is no obligation to deposit the money which can be used to refund people who have lost out in the transactions of that organisation.  There are rules and regulations that guide banks in their operations.  That is why we have left them out.  So, do not be worried that the banks are left out because the banks are already operating under strict rules and regulations.

Hon. Sen. Shoko talked about this Bill saying when the company is getting liquidated, the person who receives monies last is the worker.  In response to that, I am saying if you look at our Bill, workers should be the first beneficiaries when a company becomes insolvent.  Hon. Sen. Marava has said when we talk about businesses failing to progress, it is something which has been going on for some time.  During the old times, our forefathers would also borrow grain from their neighbours and when they fail to pay, at times they would pay using baby girls who would be married into the family.  However, this is different from what we are saying.  This Bill is very technical because it lays down the rules and regulations to be followed. 

When somebody is said to be insolvent, we will examine the reasons which have led to the business failing to take off.  You go to the High Court for trial on insolvency so that there is a final liquidation order given.  All the facets of the case are examined before insolvency is granted.  This is different from what we were doing as a culture because in our culture, when we owed somebody money or anything, you would go as an individual and settle that but in the case of companies, we are talking of workers who have to be taken care of.  Other people who are owed monies should be taken care of.  That is why when we look at this Bill, it is very big because we have added lots of things.  We have also added that the insolvency practitioners should elect a council which will guide them in their operations so that if a law has been broken, they have to be tried and be convicted.  We wanted this Bill to use simple language which could be followed but unfortunately, there are procedures which have to be followed in toto so that when we are talking about the ease of doing business, it is really practical. 

The Hon. Member also said we should make a one-stop-shop and we should make a comprehensive law so that when we talk of ease of doing business in Zimbabwe, we are for real and it should be easy for people to come and invest in Zimbabwe.  This Bill is not saying whenever there is a small problem, we should liquidate them.  There is a section which says companies which are in financial challenges should be given some chance for revival.  They should be given some support so that instead of being insolvent, they may start reviving business and progress.  When we talk of these companies, we think of the welfare of the worker.  We are also intending to create a law which will protect the rights of the workers. The Government is after protecting the rights of the workers.  This law also talks about the insolvency practitioners.

Hon. Sen. Chipanga, thank you very much. You said this Bill has some words which may be hard to understand but I have tried to use simple language so that we may understand it.  What we want is to craft this Bill so that we can talk about protection of the properties.  We have had some judiciary managers who have been running for ten years and that manager would be benefitting at the expense of the company and the workers.  So, this Bill is aimed at cutting corruption. 

Hon. Sen. Sibanda, you also added some new angle to this Bill and you are asking where you are saying how does the Bill protect these things.  If you were to sit down and read this Bill, all the things you are talking about are included in this Bill.  When a company has to be declared insolvent and liquidated, there are steps, there are examinations, there are researches, there are investigations to be carried out before liquidation is granted. You also talked about the cross border insolvency, when you look at Clause 152 in this book; it explains in clear and simple terms what this means, so your concerns are addressed.  You also talked about the procedures whereby Zimbabwe may get assistance from other foreign courts, especially if it enrolls two countries and they have to be liquidation involving these countries.  The legal courts of these two countries will work together for the benefit of the beneficiaries.  That is why I am saying we talk about the procedures of dealing with foreign companies such as South Africa or other countries we do business with.  This is a big volume with lots of clauses and when we have other companies which are said to be going through a lean spell and may be liquidated, we look for ways and means of resuscitating them and empowering them if there is need and have to be liquidated and the first beneficiaries will be the workers.  Therefore, I thank you Hon. Senators for supporting this Bill – [AN HON. SENATOR: There is a question that the Minister left out on liquidation.] -

          * HON. ZIYAMBI: Thank you, I had left if out.  Talking about personal liabilities, if we go to part 20 of this law, it explains how personal liabilities should be carried out and other provisions which relate to other companies. In my preamble, I said this Bill is too technical, we need to look at all the things which are involved because after looking at it, we have to go to directors, in what we call ‘piercing the veil’ because we need to check on who the owner of the company is so that when we want to approach them for the liquidation, we approach them.  We need to consolidate these insolvency laws so that we have one law since we are talking of the easy of doing business in Zimbabwe.  I thank you Madam President and I now 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.

COMMITTEE STAGE

INSOLVENCY BILL [H. B. 11, 2016]

          House in Committee

          Clauses 1 to 197 put and agreed to.

          First, Second, Third, Fourth and Fifth Schedules put and agreed to.

          House resumed.

          Bill reported without amendments.

Third Reading: With leave, forthwith.

THIRD READING

INSOLVENCY BILL [H. B. 11, 2016]

THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARYAFFAIRS (HON. ZIYAMBI): Madam President, I now move that the Bill be read the third time.

          Motion put and agreed to.

          Bill read the third time.

ORAL ANSWERS TO QUESTIONS WITHOUT NOTICE

*HON. SEN. MACHINGAIFA: My question is directed to the Minister of Justice, Legal and Parliamentary Affairs in regard to the Constituency Development Fund (CDF). We have held primary elections which mean Parliament will soon be adjourning and some of us have not collected the CDF. Even some of those who accessed those funds have not completed the tasks which they promised to do. We also expected them to come back and report on what they will have done. We still have some other Hon. Members such as Senators and Members of the Proportional Representation who have not yet accessed these funds. What are you going to do so that they will have access to these funds too in order to fulfill their obligations?

*THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARYAFFAIRS (HON. ZIYAMBI): Thank you Hon. Member for the question where you are talking of the CDF saying we have held primary elections and some of the members have not yet accessed these funds. What will happen? When we talk of primary elections, we are talking about political parties and these have nothing to do with Government programmes. According to our Constitution, Section 143 says there is going to be prorogation of Parliament on the eve of the day we will be holding elections. So that evening is when Parliament is prorogated or terminated. That means Members of Parliament are on duty until we get to the eve of elections when Parliament is dissolved. From our assumption, we have more than two months where Parliament will be in business and Members of Parliament will be carrying out their mandate. When those duties are said to have been terminated, then that will be another case but as far as the current situation is concerned, a Member of Parliament has that mandate given by the people since Parliament is derived from the people.  Therefore, Members should continue accessing the funds and carrying out duties as assigned.

HON. SEN. MATHUTHU: I want to thank the Minister for the timeous response but I am not sure if he is speaking on his own behalf or on behalf of all the other Ministers because we see a bunch of the Ministers are not coming to attend during Question Time.

                   THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARYAFFAIRS (HON. ZIYAMBI):  Thank you Madam President. I would like to speak on my own behalf always and it is my hope that when there is Question Time, Ministers avail themselves but in the absence of the Ministers, my duty dictates that I can take all the questions as Leader of Government Business. The ideal situation is to have Ministers, which I apologise Madam President.  I was hoping that they would come but I was not informed by my colleague Ministers why they were not coming. I thank you.

                   *HON. SEN.  BHOBHO: My question is directed to the Minister of Justice, Legal and Parliamentary Affairs. We have had a debate in this House and we do not seem to have a particular law that is aimed at protecting the girl-child from early marriages. What is obtaining on the ground is that we have minors marrying and putting up a home. What we need to do is to have some deterrent sentence so that if people marry off anybody under the age of 18, they will be committing a crime, hence a mandatory sentence is appropriate.

                   *THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARYAFFAIRS (HON. ZIYAMBI): Thank you Hon. Senator for that question which is in tandem with what we are discussing where we are protecting young children under the age of 18 from early marriages. Let me say there are arrangements to protect the child and these are the rules. If you still remember Parliament  held public hearings under the auspices of the SADC Parliamentary Forum and they had a model law which they wanted us to get the public’s views of which a report was compiled. My Ministry is in the process of crafting a law which will protect the youngsters from early marriages. This law should remove all the misunderstandings because in our laws we have customary and modern marriages, and people are treated differently depending on which law they would have married under.

                   Our Constitution prohibits the marrying or marrying off of children under the age of 18. As a Ministry, we are crafting a law which will combine all these regulations so that when we bring it to Parliament, it will be in a position of being accepted and gazetted by Parliament. We are talking of a consolidated Marriages Bill which will outlaw these marriages.  The law will also provide for the sentences on crimes committed by people who indulge in that.

          HON. SEN. CHIEF MUSARURWA: My follow up question on prevention of early marriages is that, whilst you are on alignment of laws, when you look at a child who is under the age of 16, she can indulge in sexual intercourse but cannot get married.  There seem to be some contradiction. 

          *HON. ZIYAMBI: Thank you Hon. Sen. Chief Musarurwa for the question which you have asked.  You seem to be giving a response to it at the same time because you are asking the august House to talk about the two issues, one; sexual intercourse – who is supposed to indulge into that?  We are saying children at the age of 16 can consent to sexual activities, yet, contrary to that it says, when they are under 18, they cannot marry, so there is a contradiction.  As I said, this is what we are looking at since I said we are analysing the law and we want to align this with the pending situation because it is ironic to say a child may indulge in sexual activities but cannot be married.  So, we need to look for ways of coming to a compromise on the two issues.  I thank you.

          HON. SEN. CHIEF SIANSALI: I am still talking about the same issue which has been raised.  The Minister should clearly explain because when we say people should not marry when they are under the age of 18, it is known and it is within our culture.  What is worrying is that the children under the age of 16 are indulging in sexual activities, and they are being impregnated.  What should happen?  We have children who are under the age of 16 who are pregnant and staying with their parents.  We are saying there is a law which says the man who impregnated the young girl cannot marry her, what are we saying, are we not contradicting ourselves?

          HON. ZIYAMBI: Thank you Hon. Chief for that question.  The response is still the same.  When we are talking about Section 78 of the Constitution, it says, ‘nobody should be married off or marry when they are under the age of 18.’  You are talking about sexual consent and we are saying, as a Ministry, we are trying to clarify all these after making investigations and see how we can solve this contradiction.  The Constitution provides for the age of 18, should we deny those who are under the age of 16 to indulge in sexual intercourse and say they should consent at the age of 18?  These are some of the discussions which we intend to engage in. 

However, this law is being improved and the process is going on.  The problem which we face is that Parliament is about to be dissolved, but we need to come up with a Bill, which we are going to bring and make a lasting solution to this problem of inconsistencies.

*HON. SEN. CHIEF MAROZVA: I want to make a follow up question to the Minister.  We have many grandchildren who are being taken care of by parents of the girl child.  What is happening is that, the young girl is impregnated by a man who knows that there is nothing which will happen to him, he cannot be prosecuted and he will continue impregnating these under 16 aged girls and feel there is no obligation to marry or take care of them.  So, we are saying these people are recognizing the law which states that an under 18 girl cannot get married but they can consent to sexual activities and indulge.

*HON. ZIYAMBI: I will assist and explain this so that the august House understands me.  There is a difference between marriage and customary law.  The law which we are talking about on marriages is when somebody marries and is given a certificate that they are a married couple.  Being married and being impregnated are two different issues.  We have had instances where a lady or woman is impregnated and not married, but the law we are currently talking about provides that ‘anybody under the age of 18 should not be married off or get married,’ on the contrary, the other law provides that anybody aged 16 can have consensual sex. 

However, what we know is, as chiefs, you can use your traditions and cultural laws to punish the person who would have impregnated someone.  What we know is that people can now approach the courts and claim maintenance for that baby so that the man may not marry the lady, but will maintain the child.  The grandfathers and grandmothers should assist their children to approach the Civil Courts so that the man who impregnates their children should have the obligation of maintaining the child born out of wedlock.

*THE HON. PRESIDENT OF THE SENATE: We thank you for the explanation and I am sure the chiefs, as custodians of our culture, you can use the powers enshrined in your jurisdiction.

HON. SEN. MAKORE: Hon. Minister, you indicated that as the leader of the House, you can answer question for any Ministry.  The Hon. Minister of Transport and Infrastructure Development, Hon. Gumbo was in but he had moved out.  I will talk about the road from Harare to Beitbridge because we were informed about the progress on its construction.  Can you explain to this august House where the problem is in terms of construction and maintenance of this road?  A lot of accidents are happening along this road, a lot of properties are being lost and many people are dying whilst some are being maimed.  Where is the problem in carrying in carrying out the construction work on this road?

*HON. ZIYAMBI: I am going to respond to this question but I know that it has been responded to over and over by the Minister of Transport and Infrastructure Development and even His Excellency, the President had also talked about it. 

They said, for the past two years, the Government had an agreement with a certain company called Geiger and another called CHEC from China.  They were given the tender to repair and maintain that road.  There were some parties which were held to support that so that this road would be constructed.  However, after some time, the Government noticed that there was no progress being made, the tender was to be withdrawn.  The Cabinet has since made an agreement that if there is no progress in the construction of this road, we are now going to cancel these agreements, but as you know, before you cancel an agreement - especially an international agreement, there is going to be some rules and regulations so that when this agreement is terminated, it is going to be on mutual understanding.  As we are now, we are in the process of preparing for the termination of the contract.  We check on some of the obligations which were supposed to be done by Geiger and the companies awarded will also be checking on how they can come in.  

          The Attorney General is in the process of working through this programme and we are saying if the companies which won the tender have not done anything within the 60 day limit period, there is going to be cancellation of the agreement and then the project will soon be re-tendered. 

          *HON. SEN. CHIEF. MUSARURWA:  Minister, whilst we are waiting for the termination of this tender and the construction, do we not have any other ways which we may follow.  This is taking long for people to be safe because we are noticing that there are a lot of patches which are being put either on the regulations or on the maintenance of these roads.  However, what we need is to make a comprehensive programme on the construction of the roads so that whereas we are working on the tender system, people are dying during that process, accidents are still continuing.  Do you have any other temporary solutions which can be used?  I will give an example of the Mvuma and Gweru Road, there are patches which were done there which are permanent.  When investors come and see that road, they will be so happy for the operations and people are protected. 

          *THE MINISTER OF JUSTICE, PARLIAMENTARY AND LEGAL AFFAIRS (HON. ZIYAMBI):  I would want to thank Hon. Sen. Chief Musarurwa for the suggestion he has given; it is a good suggestion.  Government policy in the repair or construction of roads is that the road when constructed should have a long life span instead of doing patches.  Therefore, the Hon. Senator has suggested that these solutions which we are taking up should make this road live for quite some time.  I am very grateful for what the Hon. Senator has said.  When the Ministry is constructing these roads, it should not be something temporary or what is called colloquially called ‘zhing zhong’ but should be a long term project.  I thank you. 

          *HON. SEN. CHIMANIKIRE:  I would want to also add my voice.  When people talk about children who are not supported by their fathers, this is a problem which is faced by the youngsters, both boys and girls. In our culture, when you impregnate anybody, you are supposed to be taken before a trial.  During that trial, you were held responsible for impregnating that girl and there were some herds of cattle which you were to pay for what you would have done.  At times you would pay about three heads of cattle for damaging that young girl.  The powers were given to the chiefs so that if a man fails to pay that amount because they are poor, they were supposed to go and supply free labour to Government, which was some sought of slavery to pay for what they would have done.  What we do not know is why have we done away with this traditional law because are no longer afraid of indulging in sexual activities with other people’s daughters.  Also, ladies were also told to avoid indulging in sexual activities before marriage because during marriage, their parents would be awarded for a well brought up girl who did not indulge in sexual activities.  The girls would be virgins when they got married and parents benefited from the virginity of their daughters.  As of now, people are simply indulging in sex with other people’s daughters because they know that there will not be any payment for deflowering the virgin. I thank you.

          *THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI):  Madam President, I was listening to the explanation given by the Hon. Senator.  She was talking about our culture, where she was talking about deflowering a virgin.  In our Constitution, there is a section which talks about preservation of traditional culture and this includes what we are talking about.  Chiefs are the custodians of our culture, which we seem to have lost. I said we were going to hold some discussions and investigations on the crafting of this law on protecting the youngsters from early marriages.  It means we have to involve the public in what is called public participation.  When the public has participated in the law making process, they own the law and that is why I am calling upon the public of Zimbabwe and the chiefs to bring out these ideas because we have already identified some of the things which need to be done in aligning our laws regarding marriage laws.  Therefore, if we feel we need to follow traditional systems in our law of marriages, we will do that. 

I am pleading with Hon. Members of this House to make contributions during public hearings so that when the final draft has been done and Parliament has debated, we are going to craft a comprehensive law. I thank you.

*HON. SEN. MASHAVAKURE:  Thank you Madam President.  I am going to talk about the issue which has been raised by other Members where we talked about the age of consent and marriage.  The problem we have as Zimbabweans is that we have to select what we want regarding the foreign culture where we talk about heterocentrism and eurocentrism whereby we regard our culture as inferior when compared to the Western laws.  We talk of Western rights and yet when we talk about our traditional culture, words are very binding and yet in the European countries, they talk about certificates they say is a solemnized marriage. 

When we look at the Arabs, they talk about their own culture, they do not talk about what we are saying.  Therefore, I am saying as Zimbabweans we need to take what is in our culture and check what is it that we want.  Do you want to be Eurocentric whereby people simply indulge in sexual activities whereby people simply indulge in sexual activities without the agreements of the parents?  Let us select what we want.  Do we want to be Africans or Europeans?  Do we want our culture or not?

Thank you Madam President because I can now see the atmosphere is as if we are now doing public hearings.  What the Hon. Senators are raising are some of the contributions that we want.  We need to change some of our culture, like we cannot just say my daughter was married verbally, we now must register our marriages.  We must also register our properties in case of death of a spouse to avoid these properties being taken away by relatives and this will result in suffering of children.  In the past when couples get married, the woman would move to the husband’s family and stay there.  Now, if couples marry they will go and live in urban areas and build their houses.  If we just marry customarily we will have problems whereby the wife will be chased by the husband’s relatives. That is why we are now encouraged that marriages be legally registered.

You have made a very wonderful contribution which I appreciate and I am begging you please bring it up when we come for public hearings.

We have had influence from the Western culture because they look at the citizens rights and yet contrary to our African culture, we look at the rights of the family.  In our African culture, family comes first; we are not as individualistic as the Westerners.  Because of the change of our ways of living, we need to come to a compromise and say our culture dictates that we solve these problems this way but the modern way in which we are living which is a global village, we also have some rights which we have to accept and adopt. 

At times if we do not accept to adopt certain human rights, we may be punished by the global village and sometimes have sanctions imposed on us.  We need to align our cultural values and the Eurocentric values because you should understand that we may not go back to the traditional cultural way of living we used to do. 

Madam President, I am hoping that when this law is introduced, we will debate this in full because you will be leading in these debates.  I thank you.  I also want to thank the Hon. Senators for the dedication you have shown this week in passing Bills.

On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the Senate adjourned at Fourteen Minutes past Four o’clock p.m. until Tuesday 22nd May, 2018. 

Senate Hansard SENATE HANSARD 17 MAY 2018 VOL VOL 27 NO 42