The RBZ and the rule of law: implications on democracy

GIDEON Gono was appointed the third black governor of the Reserve Bank of Zimbabwe (RBZ) on December 1, 2003.
Prior to his appointment, the term externalisation did not exist in the dictionary of many Zimbabweans. The Criminal Procedure and Evidence Act had no reference to externalisation as a criminal offence and, therefore, the Zimbabwe Republic Police (ZRP) was not relevant.
This all changed with Gono’s appointment as governor and during the last 33 months Zimbabwe has witnessed the most profound and dramatic abuse of emergency powers by the RBZ and the current so-called “project sunrise” is just but a continuation of what has been aptly described as “persecution by prosecution”.
The use of emergency powers for non-emergency situations is not unique to post-independent Zimbabwe but was inherited from the colonial era. The role of emergency powers in a democratic state is a different subject that requires its own assessment but in this column, I thought it would be useful as we critically evaluate the assertion that Jonathan Moyo and Gono are probably the two most important individuals in Zimbabwe who have sufficiently understood the power vacuum in Zanu PF to effectively and efficiently use Presidential Powers to undermine not only parliament but unconstitutionally undermine civil liberties in the name of national interest.
While some people may doubt the direct nexus between Gono and the criminalisation of rational economic behavior and the use of emergency powers to limit civil liberties, it is important that we are guided by empirical evidence rather than engage in speculative analysis.
Following my two last articles, I have received a number of interesting responses and it is clear from these virtual conversations that there is a need to unmask the link, if any, between the ordeals of a number of businesspersons and Gono’s direct actions. For instance is there a causal link between James Makamba’s arrest, detention without trial, the invoking of emergency powers to extend his incarceration, and his subsequent externalisation (into exile) with Gono?
Equally, what is the link between Chris Kuruneri, Julius Makoni, Cecil Muderedi, Emmanuel Fundira, James Mushore, Francis Zimuto, Otto Chekeche, William Nyemba, Geoff Muzvimbi, Nyasha Watyoka, Chris Goromonzi, Vingirai, etc with Gono?
How did the criminalisation of externalization all start? Who was the principal in positioning economic crimes as worse than homicide for instance? What is the role of the RBZ in undermining the constitution of Zimbabwe? Is Robert Mugabe really the principal in abusing the state of emergency or is he a victim of his own inflexible ideological mindset? These questions are important to assist in better understanding of the complex interplay between the liberation project and the need to manufacture enemies to explain failed policies and programs.
To put the current “project sunrise” into some perspective, it is important that we start with the genesis of externalisation as an economic crime requiring the use of Presidential Powers. James Makamba will go down in history as the first victim of Gono’s reign. Makamba became the first victim of harsh anti-corruption regulations gazetted on Friday, February 9, 2004, or just over two months after Gono’s appointment as Governor.
Makamba spent about 100 hours in police custody being shuttled between police cells at Harare Central, Goromonzi, Morris Depot, Tomlinson, Rhodesville, Braeside police stations while the police were still figuring out what charges to prefer against him. His lawyers made an urgent application in the High Court to have him released but to no avail.
While Makamba was still in prison fighting to be released, since he had committed no offence against existing laws, the government responded by invoking emergency powers through a statutory instrument in the form of an Extraordinary Government Gazette using The Presidential Powers (Temporary Measures) (Amendment of Criminal Procedure and Evidence Act) Regulations of 2004 which amended the Criminal Procedure and Evidence Act heralding the first Gono act that has been described as the most most calculated and determined assault on Zimbabwe’s civil liberties. Makamba became the pioneer victim in the so-called fight against corruption or a “new cultural revolution”.
Although Jonathan Moyo’s attacks were targeted at the media and its practitioners, Gono’s assault was targeted at business and selected business persons. It is important to record that Makamba was arrested after Gono had already announced his maiden state of the nation address in the form of a Monetary Statement under which all businesses were now controlled through the use of productive sector facilities as a new weapon to ensure that they would behave appropriately during the run-up to the Presidential elections.
Whereas Gono was the most potent weapon for the Presidential elections, Gono became the critical player in ensuring that business would at best be neutral in the quest for political change. It is useful to locate Makamba in the political economy of Zimbabwe and his role through Joy TV in opening the ground for opposition forces to be heard, albeit in Harare, at a time when Jonathan Moyo had put in measures to ensure that only his voice and Zanu PF should be heard. Anyone against the land reform was seen as the enemy of the state and how dare Makamba allow Morgan Tsvangirai to be on national TV, the logic went.
The new regulations were not only illogical but completely unconstitutional as many of the measures that have come to be associated with Gono. The time-honoured presumption of innocence before one is proven guilty was thrown out in the case of Makamba and his successors who were not fortunate to externalise themselves like Kuruneri and Muderedi. Makamba broke the 48 hour rule where the state can detain a suspect without charging him. They detained him for the sole purpose of investigating him. For 100 hours, they could not figure out what he was guilty of. This was a clear interference with the administration of justice. While some people may have argued that Makamba’s case was unique because of suspected personal issues involving the first family, no one can argue that it is okay for any government to manufacture laws solely aimed at punishing an individual and not promote any discernible national interest.
What these regulations meant is that for the first time an individual with a score to settle can simply phone the police to instigate that individual's arrest or acting on a tip off, the police can arrest an innocent person and detain them for lengthy periods without recourse to bail. This is tantamount to licensing government to abuse the courts to keep people in remand prison without evidence of any wrongdoing. Even the courts have no jurisdiction over an accused targeted by Gono making him effectively no different that a “warlord” or a “gangster” with the support of the state machinery.
While in most democratic societies, people not convicted are not deprived of their fundamental rights as citizens, I believe that Makamba spent eight months on remand only to be acquitted by the courts. He is understood to be now in exile although the charges against him were mainly targeted at the company in which he was a director and shareholder. The company has since been fined but I am not sure whether Makamba who should not have been culpable for alleged offences committed by a company is now free to go home.
If the detention of Makamba without trial was the only thing that visited him it would have been understandable but the Minister of Justice also specified him on allegations of externalisation, effectively disabling him from challenging the government while leaving his assets under the control of the state. Having successfully punished Makamba using the new Gono weapon of externalisation and specification, the door was open for the state to unleash its weapon of mass destruction against any potential threat to Gono’s short road to the state house.
In response to the project sunrise, it is reported that Zimbabwe’s civil society has finally woken up to the abuse of emergency powers although in the case of Makamba and the subsequent cases the same civil society and the political actors have been observers while Gono has been cheered by his long list of admirers who include members of the civil society. In fact one observer has made the comment that Gono’s state of the nation address is witnessed by all sections of the country. Rarely would you get the President being congratulated for instance by CZI, ZNCC, and even some political actors for doing a great job while ignoring the gross violations of human and property rights that are being perpetrated by the RBZ.
When it was Makamba they thought that it was just a joke and now that Gono is going into people’s pockets robbing them of their own assets in the form of cash, we see the reaction now slowly coming from the civil society while the political actors continue to be passengers of change. Some have promised a winter of discontent but we have watched the World Cup football and know who won but are still to see when the winter ends in Zimbabwe. Gono is not afraid to lead from the front like many but has effectively put in place a public relations exercise that is nation wide to confuse the public. Every day stories are being spun to demonstrate how porous the borders of Zimbabwe are and how valuable the old bearer notes are to neighboring countries like Zambia and South Africa. Equally citizens are being asked to have confidence in Gonomics when the evidence on the ground suggests otherwise.
It is ironic that Tafataona Mahoso is now trying to poke his nose in the debate by writing an article entitled: “Law society mired in propaganda against Zimbabwe” whose text seems to have been dictated by Gono. In this article Mahoso alleges that:
“While it seems clear that the majority of the members of the Law Society of Zimbabwe have not mandated LSZ leaders to engage in regime change and propaganda activities against their own country, the evidence that these leaders have played that exact role in the last 15 years is substantial.
"Just this week, The Financial Gazette (August 10 2006) carried the front page story: "Court challenge for cash crackdown", in which it was reported: "As the Law Society of Zimbabwe (LSZ) declared that the seizure of cash was illegal and condemned the direct exercise of executive (Presidential) powers, the Zimbabwe Lawyers for Human Rights (ZLHR) cobbled up a legal challenge to the crackdown."
"What the LSZ leaders have declared illegal ahead of any court hearing is Statutory Instrument 199 of 2006, Presidential Powers (Temporary Measures) (Currency Revaluation) Regulations.
"No suit, prosecution or other legal proceedings shall lie against the Government, the Reserve Bank, a financial institution or any employee of the State, the Reserve Bank of Zimbabwe or a financial institution in respect of anything done by or on behalf of the Government, the Reserve Bank of Zimbabwe or a financial institution, with due diligence and in good faith, in the exercise of any power or other performance of any function under these regulations or directions made thereunder."
Then in typical fashion, Mahoso tries to blame US interference in Zimbabwe’s domestic affairs, suggesting that Zimbabweans are not competent to judge for themselves what kind of government they deserve. It is clear that Gono has already provided immunity to himself for all his actions that go a long way towards making Zimbabwean citizenship as cheap and worthless as the three zeros that are being removed from the vocabulary of Zimbabweans.
It is important that the civil societies who appear to have woken up to the fact that a coup de tat has taken place in Zimbabwe and the state machinery has been effectively put under the control of an individual who may not appreciate the legal and constitutional issues that arise from voodoo economic theories should take note that the current project sunrise is nothing but a continuation of a series of measures that have been taken to silence all visible and invisible sources of opposition. If there was any time where it was important to elevate the discourse among Zimbabweans on the last frontier of attacks aimed at diminishing citizens’ civil liberties in the name of confused national interest, it is now.
What is needed is to appreciate the common thread that actions on the Makambas and company with the barbaric policies under 'project sunrise' and implications for Zimbabwe if no coordinated and sustained response is generated. Perhaps it is time that we understand the unique experiences of Makamba and company and the real cost of silence on these defining moments in Zimbabwe’s history. While Operation Murambatsvina exposed the barbarism, I am not sure whether it has become apparent that the real force behind the actions may have been Gono looking for foreign currency in the informal structures that were destroyed.
It appears that Gono will not stop at anything in seeking to manufacture enemies of the state in the hope that people would not focus on him as a principal in accelerating the impoverishment of Zimbabwe while systematically undermining the limited civil liberties remaining in the country. The role of the state in undermining democracy and the place of individuals like Gono in the overall scheme of things needs to be understood and exposed if any prospect of Zimbabwe’s renaissance is to be realized in our generation.