Dr Alex T Magaisa
IN a previous article in this column, we cautioned about the dangers of excessive regulation in the financial sector. We revisit that area and this time focus on the more general point abou
t the law-making process.
Although we focus on the financial sector, the issues raised in this article would apply with equal force in other areas of business, social and political life.
Over the last five years, a number of business executives have departed Zimbabwe in unceremonious circumstances and are often referred to as fugitives from justice although they contend that they were escaping injustice.
Many of them were at the forefront of a fledgling black upper middle class and had stakes in the financial sector although others had begun to find space in the mining and industrial sectors.
Their involvement in the financial sector could have played a key role in national development in the long-run.
In the early years of Independence, the major financial institutions did not have favourable policies and credit facilities for the majority of the population.
The growth of the indigenous financial sector created new space for players in other industries and provided more opportunities for the general public.
But we should also have anticipated some teething problems in the process.
It would have been necessary to prepare ground to deal with such problems.
However, the lack of a particular policy for the process of empowerment restricted space to a few individuals.
The greatest error was that liberalisation of the financial sector was not accompanied by proper laws to guard against excesses. It is well-known that where opportunities arise, opportunists follow.
The lack of proper regulation – such as the then division between authorisation and supervision of banks created avenues for opportunists.
However, when problems did arise in the financial sector, the response appeared to be excessive. To compensate for lack of laws in the first instance, the authorities appeared to design new laws that went far beyond the normally accepted rules.
More importantly, the response did not seem to take into account the fact that the problems arose at a time when the economic conditions were dire and therefore some of the extra-legal practices were in fact, necessitated by the circumstances of the time.
While this is not an excuse for perpetrating illegality, it is a factor in the general scheme of things that could be taken into consideration in creating the necessary legal response.
There is no denying that there were some undesirable elements in the sector.
However, the manner in which the authorities approached the sector as a whole, raised more questions and caused a dent in the country’s profile.
The laws that were created appeared to straddle individual freedoms and create shortcuts in the justice system.
The result was that any person that felt that his liberty was under threat took flight. This has been interpreted to mean that those who fled did so because they were guilty. But such a blanket conclusion excludes other possibilities.
Is it not also possible that given the manner in which the other accused persons were being dealt with under the laws and sometimes beyond the laws, no reasonable person in a position where his liberty was under threat would subject himself to the system?
The tribulations of the likes of James Makamba, Chris Kuruneri and others were probably sufficient to persuade some to flee or to justify their escape.
In many cases we are told that for example, trading in foreign currency was done at the behest of authorities and in the case of Kuruneri, even Reserve Bank governor Gideon Gono testified that the man had done a national service at a time of great need.
Most individuals have at one point or another been forced to delve into the parallel market in order to meet the needs of the time.
But there is also the problem of unequal treatment of offenders under the laws. The principle of distributive justice requires that like cases be treated alike.
In the last few years a number of cases against companies have been brought before the courts for breaching the foreign exchange rules. We have seen in many cases some large international banks and finance institutions that have got away with fines for similar offences without any threats to the liberty of individual directors or executives in those companies.
How then can one reconcile the approach to the local banks, whose executives were being sought in their personal capacities while executives of multinational banks have not faced such threats and instead had their corporate entities fined?
This is the same inconsistency that affects confidence in the local markets – you never know if rules will be applied and if so, to whom and in what circumstances.
In my view, this matter needed, and still requires a sober approach from the authorities. It does not help to simply dismiss the executives as economic saboteurs.
Not only has the country lost to other countries some of the most enterprising individuals in business, but it has also lost whatever resources these people may indeed have outside Zimbabwe when it needed them most.
The worst part is that the manner of the treatment has added to the negative image of the country. It is so easy to blame others for our problems but quite often we are the architects of our malaise.
Whatever the justifications of the government position, the treatment of the executives is largely seen in the international markets as persecution within a generally hostile socio-political atmosphere.
It is one of the big ironies of our time that at a time when the country is seeking to advance the cause of the local people, it is at the same time stifling the growth of those sectors and chasing out individuals who could be at the forefront of promoting that cause. It is trying to score but at the same time conspiring to concede an own goal.
We can see that in making the laws that were meant to deal with externalisation and related problems in the sector, the government could have enhanced its position by taking a sober approach and not make a knee-jerk reaction, as it appeared to do.
The process of law-making, especially in areas where constituencies are well-defined and easy to identify, is enriched a great deal by consultation and rigorous debate.
Laws must also be made in context – that is, they ought to reflect the contextual factors within which they are meant to apply. Quite often, laws are made without sufficient public consultation and rigorous debate.
It is well-known that the formal role of parliament is to make laws. The role of the executive government is to create policy, which is often translated into legislation through parliament. In practice, where the government controls parliament, we know that it is in fact the executive that makes law, with parliament acting simply to rubber-stamp the laws.
There are many departments of government that are responsible for creating policy. It is at this stage when public consultation must initially take place.
At the very least the policies must be published and brought to the attention of the key stakeholders. So for example, the RBZ should issue its policy for consultation with the financial sector specifically, since they are the constituency that it seeks to regulate.
Consultation is then followed by responses from the stakeholders and this is even before the law has been drafted. People debate about the laws, the procedures and the goals that are sought. Thereafter, the department issues its responses, incorporating the views gathered from stakeholders.
The response paper is sent back to the stakeholders, together with the drafts of the bill where possible to demonstrate that their views have been taken into account.
This is where we see accountability – the state being accountable to its citizens in the process of law-making. The bill then goes to parliament, where elected representatives representing a wider constituency debate it before it is passed into law.
Of course this is the ideal scenario and some who have never seen it work might think it is impossible.
In my view, many of the laws that currently regulate the financial sector could have been vastly improved if they had been subjected to this rigorous process.
At least the authorities would legislate from a position of knowledge of how the key stakeholders feel and the consequences for business and investment. The lawmakers do not have a monopoly of knowledge or wisdom. They need to consult widely before enacting laws.
Finally, there is every reason to reconsider the government’s approach towards the estranged business community. Zimbabwe has more to gain from their inclusion than from their exclusion. We cannot expect to attract foreign capital for development when we show disregard and contempt for our own entrepreneurs. They may have erred but they are certainly not beyond rehabilitation.
* Dr Alex T Magaisa is a financial law expert and can be contacted at firstname.lastname@example.org