GOVERNMENT will find it difficult to prosecute corporates and individuals it accuses of illegal externalisation of money as questions arise over the legal framework and the prosecutability of the offences.
By Kudzai Kuwaza
According to a list released by President Emmerson Mnangagwa on Monday following the expiry of his 104-day moratorium, the bulk of the money was allegedly externalised through non-repatriation of export proceeds, payment for goods not received in Zimbabwe or funds siphoned to foreign banks in cash or under spurious transactions.
The list includes Zimchem Refineries, Sandawana Mine, United Refineries, Associated Newspapers, ZimInd Publishers, National Printing and Packaging, Printflow, NetOne, Windmill, Turnall, Allied Timbers Zimbabwe and Sable Chemicals.
Interestingly, some of the companies that are named on the list have since closed shop mostly due to viability challenges.
Some companies say they have complied with the law, but bureaucrtic, administrative and technical issues have created this mess.
Former Chiadzwa diamond mining companies, among them Mbada Diamonds and Jinan, are alleged to have externalised more than US$100 million.
Mbada chairman David Kassel said externalisation claims against his company were “absolute nonsense”.
Despite government blowing the trumpet of the “Look East” policy, particularly in reference to its trade with China, the Chinese ironically dominate the list.
Government has been widely criticised for its failure to expose political bigwigs suspected of siphoning away millions of dollars to offshore financial safe havens.
Opposition MDC-T secretary for finance and economic affairs Tapiwa Mashakada said the list is disappointing.
“President Mnangagwa promised to name and shame individuals who externalised funds. But the list unveiled today the 19th of March is disappointing,” Mashakada said. “Conspicuous by their absence are Zanu PF bigwig and sharks who have been looting our national resources through the plunder of diamonds and asset stripping.
“The list is dominated by companies. It is common cause that due to lack of confidence and the shortage of foreign currencies most companies exercised due diligence by keeping money offshore in order to finance imports and service off shore in order to finance imports and service offshore financial obligations such as loans and other financial commitments. How else could these companies survive without access to foreign currency?”
United Refineries managing director Busisa Moyo, whose company is accused of externalising US$387 180, said he will engage government over the issue.
“We will engage, what can we do? These are outstanding CD1s (customs declaration forms) which have not been acquitted,” the former Confederation of Zimbabwe Industries (CZI) said in response to queries on micro-blogging platform Twitter.
Windmill chief executive George Rundogo, whose company is accused of externalising US$776 870, also said he would engage government.
“We have always have been liaising with the authorities and we will continue to liaise with them,” Rundogo told the Zimbabwe Independent.
CZI president Sifelani Jabangwe said there is need to “clean up” the list as companies which carried out legitimate business transactions have also been painted with the same brush with looters.
“I think there is a need to clean it (the list) up a bit,” Jabangwe said. “What we have on the list are imports and exports by genuine businesses who were affected by late delivery of materials or by late payments.”
He said CZI is working with the relevant authorities to ensure that genuine businesses are separated from those who externalised funds.
However, questions continue to swirl over the legal instruments that will be used by the Mnangagwa administration to prosecute the alleged offenders.
Former finance minister Tendai Biti has been at the forefront of pointing out the futility of doing so under the current legal framework.
In a recent interview with the Independent, Biti said Mnangagwa needs proper legal instruments to enforce the law and deal with the situation.
“There needed to be a legal clarity reconciling Section 42 of the Reserve Bank Act, the Exchange Control Regulations and the amnesty proclamation,” Biti said.
“But you and I know that even though Mnangagwa is a lawyer, all his legal pronouncements have been legally deficient, starting with following the constitution when he got in and the announcement of ministers which did not take into account the provisions of Part 5 of the constitution. So even though he is a lawyer, he is legally illiterate.”
Biti argues that the United States dollar is legal tender in Zimbabwe after the amendment of the Reserve Bank Act in 2009 to accommodate a basket of currencies as part of the dollarisation of the economy.
“When you talk of externalisation, you are talking of getting foreign currency, that is money which is not the legal tender of that country outside Zimbabwe. So after 2009 we have to be careful now because the US dollar is now the legal tender,” Biti said.
He said it is different from the period prior to 2009 where there was a clear demarcation between the local currency which was the Zimbabwe dollar and foreign currency such as the US dollar.
Biti said there is need for a clear definition of externalisation.
“Strictly speaking, externalisation is when you take money which is not your domestic currency and you get it out,” Biti said.
Biti said there is need to differentiate between externalisation and illicit financial flows.
“So if they try and arrest people (on externalisation charges) lawyers will have parties in town because of the lack of that clarity,” Biti pointed out.
Economist Prosper Chitambara concurred with Biti.
“I think it is difficult to prosecute the companies and individuals because the legal challenges are complex,” Chitambara said.
“I am not sure whether government has the technical capacity to successfully put up a strong legal case.”
However, local lawyer and banker Shepherd Machigere said government can be able to prosecute alleged offenders in terms of the Exchange Control Act and related subsidiary legislation.