Grace’s diamond saga, the rule of law in Zim

The biggest, yet most under-reported story of the festive season has to be the scandal surrounding a US$1,35 million diamond ring bought by President Robert Mugabe’s wife, Grace, and the illegal seizure and occupation of properties belonging to a Lebanese dealer. It fortifies Zimbabwe’s already poor reputation as a lawless nation in which political elites have no regard for the rule of law.

Alex T Magaisa,Lawyer

On December 9 2016, the Zimbabwe Independent broke the scandal over a diamond ring which Grace purchased through the agency of a Lebanese dealer, one Jamal Ahmed. Grace and Russell Goreraza, her son from her first marriage, and another person, were sued by Ahmed for unlawfully seizing and occupying his properties in Harare. Ahmed was seeking a legal remedy, called a spoliation order, which is granted to a person who is unlawfully deprived of property in his possession.

The background to this was that Ahmed had facilitated the purchase of the diamond ring on behalf of the First Lady. She had paid the US$1,35 million fee for the diamond ring through CBZ, a local commercial bank. Ahmed alleges that Grace had subsequently refused to take delivery of the ring upon presentation. Instead, she demanded a refund, which she wanted to be paid in Dubai.

Ahmed says he protested, arguing that the transaction had already been executed and the money was not immediately available. He later offered that if repayment was to be made, it would have to be in instalments given the unavailability of the full amount. According to court documents: “Any refund would have to be done in Harare through the account from which the original funds had come from as a refund in Dubai could easily be seen as an externalisation of funds and I did not want to be part to anything that would appear illegal.”

Grace was not amused. She allegedly decided to seize Ahmed’s three properties in Harare as stated in court papers.

In effect, she decided to take the law into her own hands. Ahmed alleges that Grace, Russell and her son-in-law, Simba Chikore, made threatening calls to him and his employees. It is alleged that Grace advised him that they could do anything without any adverse consequences to themselves as they were “Zimbabwe”.

There are indications that Grace believed that she was immune from lawsuits on account of her husband’s immunity.

Under the constitution, a sitting president enjoys legal immunity during tenure of office. She might have thought that the immunity also extended to her as First Lady, which was completely misguided as she has no immunity.

It is in these circumstances that Ahmed approached the High Court for urgent relief, seeking restoration of the seized properties. Court officials faced challenges in serving the legal papers on Grace, but eventually they were served at her Borrowdale residence. High Court judge Justice Clement Phiri, who heard the matter, granted a spoliation order in favour of the businessman on December 21 2016, ordering Grace and/other agents to vacate Ahmed’s properties within 24 hours.

It has since emerged that the court order was ignored by the defendants and their agents. In any event, Grace had since departed to the Far East, where she was spending the Christmas break with her husband and their family. The Independent reported on January 9 2017 that when the Sheriff of the High Court attempted to serve the eviction orders at the Mugabes’ residence in Borrowdale, he was harassed, with at least one of the soldiers threatening to shoot him.

The scandalous nature of this matter is plain. Apart from the scandalous nature of the president’s wife buying expensive jewellery at a time when most citizens are struggling to make ends meet and the fact that banks such as CBZ are struggling to disburse money to ordinary clients, there is also a clear case of contempt of court by virtue of ignoring a court order.

Grace’s lawyers last week argued that there is no contempt of court since they intend to appeal against the judgment. But this is hardly sufficient justification for contempt since, no appeal had been noted as of last week. As such the order remains operational and must have been complied with within 24 hours of its granting.

In any event, the fact that no appeal was noted within the 24 hours in which they were supposed to vacate the premises and the period expired without compliance is enough to demonstrate contempt. Furthermore, Grace’s lawyers, Manase and Manase Legal Practitioners, know the futility of this argument as one cannot appeal against a provisional order. They would have noted the appeal soon after the provisional judgment was granted. There is no doubt that Grace and her co-defendants are in contempt of court.

Grace’s lawyers only filed an affidavit this week opposing the High Court order to vacate the premises. In the affidavit she claimed she did not invade anyone’s premises, instead she was a victim of a person she described as an international fraudster wanted by international police.

Interestingly, until yesterday, the scandal has been conspicuously absent from the pages of state media. Even then, when the Herald reported on the story, it was to deflect attention and paint Ahmed as a criminal who is wanted by police. Incredibly, while reporting that Grace “lost” US$1,3 million, the Herald skirts around the diamond ring deal from which the alleged “loss” was incurred. In any event, it is a poor attempt at shielding Grace as she dealt with an alleged criminal element over a US$1,3 million deal. It brings her judgment and associations into question. If Ahmed is indeed a criminal element, as alleged by police, how does a First Lady of a country keep such company and enter into a million-dollar deal?

Prior to yesterday’s report, all the major state papers had adopted a “see-no-evil and speak-no-evil” approach to the scandal. The national broadcaster, ZBC, which has the broadest reach countrywide, had not reported on the matter either. This means the majority of people who rely on state media for news have no knowledge of this scandalous matter. If an opposition politician was involved in such a scandal, it would be awash in state media.

The state media has chosen to maintain silence over the matter. This selective reporting demonstrates once again the partisanship of state media. Most likely, editors have to pretend the matter does not exist for fear of losing their jobs. It confirms opposition criticism that state media is highly compromised and biased.

Yet despite the silence of the state media, the scandal refuses to go away. Instead of complying with the court order, this paper reports that agents of the defendants have gone on to occupy two more properties belonging to or associated with Ahmed. Ahmed remains outside Zimbabwe. He alleges that he was threatened with harm by some security agents and by Russell and Chikore.

While Grace might use her husband’s political power to avoid the legal consequences of her unlawful actions in Zimbabwe, she is, by her conduct, placing their family assets abroad at risk. Given that Ahmed has a solid case which has been backed by the High Court in Zimbabwe, he could take legal action against Grace in a foreign jurisdiction, seeking compensation for his properties. It is possible at law to find jurisdiction by attachment of property or by service of legal papers upon a person during transit in a particular country.

Thus, for example, if the Mugabes have property in Dubai, and Grace happens to be in or passing through Dubai, as she often does during their numerous trips abroad, Ahmed’s lawyers could easily serve papers upon her, enabling Ahmed to sue her in that jurisdiction. Their money held in foreign bank accounts or other property could be used to settle any judgment. Grace might ignore or abuse the legal system in Zimbabwe and claim to be above the law, but she is unlikely to escape justice in other countries.

Nevertheless, Grace’s actions pose a serious threat to the rest of the country. They cement an unsavoury reputation of a country that has no regard for the rule of law. It shows that Zimbabwean political elites regard themselves as above the law. How does Finance minister Patrick Chinamasa convince foreign investors that their investments are safe in a country where the president’s wife behaves like a law unto herself? This scandal sends a very bad message to foreigners — that they can be mistreated and their properties can be seized and, even if they win court orders, they are not worth the paper upon which they are printed because they can be ignored.

It is astounding that even with that behaviour, Grace is touted in some circles as a potential president. How can a person who has no regard for the law, someone who is so openly contemptuous of the courts of law, be trusted with presidential authority?

There is also the issue of a potential offence of externalisation of currency. If Ahmed’s story is true, why did Grace want the US$1,35 million to be paid in Dubai when it had originated from a CBZ account in Harare? Was that a roundabout way of externalising foreign currency and stashing money in foreign bank accounts as African elites often do? If an ordinary individual had tried to do this, the central bank and police would have pounced on them already.

A decade or so ago, some businesspersons, such as James Makamba, spent months in remand prison for similar allegations. Yet it is unlikely that the Reserve Bank of Zimbabwe and police will do anything in this case — another case of selective application of the law.

Some conspiracy theorists are already peddling the theory that this lawsuit is part of the ongoing succession battles within Zanu PF. Attractive though this theory appears, it is fanciful. It also reflects the weakness of an analytic framework that has been reduced to successionism, where everything has to fit within the succession matrix.

Therefore, if a person steals from the state and is prosecuted, it will be seen as nothing more than a succession issue.

The real question as to whether or not theft occurred will be relegated to the margins. In this case, no one forced Grace to enter into an extravagant transaction. No one forced her to reject the diamond ring. Indeed, no one forced her to forcibly seize and occupy properties belonging to Ahmed. She and Ahmed must be people who know each other well. No one enters into a million-dollar contract with a person that he or she does not know or for whom they do not have a good reference. No one has forced Grace and her agents to ignore a court order. It is easy to blame everything on succession.

The fact of the matter is that some people believe they are above the law and that they can do as they wish. All this to the detriment of the national image and reputation.

Dr Magaisa is a lawyer and a lecturer at the University of Kent in the United Kingdom.