Mushore's ordeal and the New Zimbabwe we want

JAMES Mushore, one of three professionals who founded the first merchant bank controlled and managed by blacks in Zimbabwe, the National Merchant Bank of Zimbabwe (NMB), made history in 2004 when like the late Vice President Joshua Nkomo, he fled to the former colonial power, England, for fear of his life in post colonial Zimbabwe.
Like Nkomo before him, Mushore is passionate about Zimbabwe and his role as a trail blazer in the quest for black economic empowerment remains unshaken.
Together with Dr. Julius Makoni, whom I consider the father of black banking in Zimbabwe having pioneered the establishment of the first black owned bank in Zimbabwe, and William Nyemba, Mushore’s place in black corporate history is secure and yet he finds himself behind bars for a crime that is difficult to explain to any rational person who is not a Zimbabwean.
The late Joshua Nkomo was the first icon to be a victim of the post-colonial state and he could find no refuge in the country that he had fought so hard to liberate. The accusations against Nkomo and his colleagues when critically examined are no different from the accusations against Mushore, Chris Kuruneri, James Makamba and others. Essentially, the allegations center on actions that are deemed to undermine national interest.
National interest, often referred to by the French term raison d’Etat is multi-faceted and is concerned with the state’s survival and security as well as the pursuit of wealth and economic growth and power.
In early human history, national interest was usually viewed as secondary to that of religion or morality. To engage in war, rulers needed to justify their actions in these contexts. The primacy of national interest came later to dominate European politics and states found a convenient avenue to embark on wars purely out of self interest.
In the case of post-colonial Zimbabwe, the country is regarded by those who persecute their perceived enemies through prosecution as an independent polity with an identity jealously defined by the ruling elite as anything other than a vague geo-political and historical concept. The geography known as Zimbabwe is a politically and culturally diverse collection of polities and dependencies with no generally agreed and shared sense of common history, destiny or culture.
The Matabeleland region is just as culturally and historically Ndebele as is Manicaland just as Manyika. In such an environment, any strategic thought on national interest cannot be rooted in nationalist ambitions for glory or protection. What post-colonial Zimbabwe has advanced may be regarded as a ruthless political paternalism or a nationalised future even Nkomo could not have conceived of, borrowed liberally from and put to the service of self serving nationalist ambitions.
When Nkomo fled the country, his enemies now in control of the state could not have been motivated by a nationalistic sense of Zimbabwean-ness at heart. Rather it may have been motivated by a strategy to increase the power of the Great Leader for whom he worked as Minister of Home Affairs. In this case, it is arguable whether the reasons for Gukurahundi were real or manufactured for political expediency.
Zimbabwe, like many post colonial states, has failed to invest in an institutional framework to ensure that no despot – whether that despot be a single dictator, a political pressure-group (party) or a befuddled democratic majority of the moment – may usurp the powers of government, and turn its machinery upon any of its citizens, each and every aspect of government action is codified, and carried out, according to objectively defined laws.
In the case of Mushore, he is alleged to be guilty like Makamba, Kuruneri and others before him of a crime that does not exist in the statute books of the country. In the search of a universally agreed definition of externalisation, I searched on the internet and could find no description of the term as a crime. Such a crime only exists in Zimbabwe and can trace its origin to when Gideon Gono was appointed as Governor of the Reserve Bank of Zimbabwe. Prior to Gono’s appointment, exchange control violations were civil rather than criminal offences and justifiably so.
In any free society each and every man ought to live under a rule of law as opposed to a whim-ridden rule of evil men. The rule of law should only have one purpose: to protect the rights of the smallest minority that has ever existed – the individuals like Nkomo, Mushore, Makamba and others.
Such a body of integrated, codified and non-contradictory laws should form objective legislation, which should ideally hold a man innocent until he can be proven guilty as opposed to a library of irrational regulations which hold a man guilty until he can somehow prove himself innocent, to the gratification of some idiot able to gain a foothold in public office.
Zimbabwe’s still boasts of a constitutional order that is premised on the existence of democracy and the doctrine of the separation of powers. The supreme legal document of any proper society is ultimately its constitution – a citizen’s protection against both private criminals and public officials who seek to imitate the criminal’s methods.
The liberation struggle was primarily motivated by a just cause for just ends and yet Mushore finds himself in this year of the Lord in custody notwithstanding the fact that he has been granted bail by a Court of law while public officials try to pump life to a dead case.
Makamba, Kuruneri and Muderedi were there before, and we were all silent while the collective project to create a New Zimbabwe founded on the rule of law and not rule by law was being massacred by the few who are lucky and privileged to preside over the state.
The purpose of any constitution should not be to grant unlimited power to government or to limit the rights of an individual, but to limit the power of government to its only valid purpose, the protection of individual rights. In other words, a citizen should be free to do whatever he is not explicitly forbidden (under a proper legal system the only act forbidden is the violation of the rights); whereas, a public official is only allowed to carry out what is explicitly permitted.
Mushore is facing charges of authorising the illegal export of foreign currency during his time as Deputy Managing Director of NMB Bank in 2003. It is not clear from the state’s case whether Mushore should in his personal capacity be culpable for an alleged offence that purportedly was to the benefit of NMB, a separate and distinct juristic person with its own rights at law. If Mushore is indeed guilty of the offence, then surely why would the state be selective?
Anyone who has followed the NMB saga closely will know that the bank has already been found guilty and fined for the same offence that Mushore finds himself charged with. In what kind of constitutional order would a citizen be accountable for someone’s offence?
Mushore left the country in 2004 and it is reliably understood that he was assured that he would not be harassed by the state after the conviction of NMB. If Mushore was not patriotic and believed in his country, he would not have dared to come and face his accusers.
As President Mbeki tries to find a solution to the Zimbabwean crisis, it is evident that no lasting solution will take root as long the state operates above the law with impunity. Yesterday it was Kuruneri and today it is Mushore and tomorrow only the Reserve Bank knows. What kind of a society has Zimbabwe come to?
In trying to explain the root cause of the economic crisis, the government has chosen to target selected individuals as economic saboteurs whose actions undermine public interest. The Reserve Bank has been at the forefront of projecting the notion of public interest in policy debates, politics, democracy and the nature of the government itself. While the RBZ claims that aiding the common well being or general welfare is positive, there is little, if any, consensus in Zimbabwe on what constitutes the public interest to justify the actions perpetrated against people like Mushore.
There are different views on how many members of the public must benefit from an action before it can be declared to be in the public interest: at one extreme, an action has to benefit every single member of society in order to be truly in the public interest; at the other extreme, any action can be in the public interest as long as it benefits some of the population and harms none.
The public interest is often contrasted by the government with the private or individual interest, under the assumption that what is good for Zimbabwe may not be good for a given individual and vice versa. This definition allows people in government to "hold constant" private interests in order to determine those interests that they perceive to be unique to the public.
However, Zimbabwean society is composed of individuals with conflicting objectives, and the public interest must necessarily be calculated with regard to the interests of its members. It has now become evident that the notion of public interest as espoused by the government destroys the idea of human rights and it’s about time Zimbabweans interrogated the degree to which the ends of society are the ends of its individual members, and the degree to which people should be able to fulfill their own ambitions even against the public interest.
The Mushore case provides yet another opportunity for Zimbabweans to reflect on what kind of society they want and begin to debate about policies rather than be preoccupied by State House politics at the exclusion of key institutional issues that help define and inform a progressive and developmental state. The debate ought to be elevated from personalities to the foundational aspects of the post-colonial regime.