HARARE lawyer Fredrick Nyamande has taken President Emmerson Mnangagwa to court for creating a sovereign wealth fund without Parliament’s approval and gazetting legislation to shield the fund from public scrutiny.
Mnangagwa recently renamed the Sovereign Wealth Fund of Zimbabwe to Mutapa Investment Fund through Statutory Instrument 156 of 2023.
Nyamande cited Mnangagwa, Justice minister Ziyambi Ziyambi, Attorney-General Virginia Mabhiza and the Parliament of Zimbabwe as respondents.
In his application, Nyamande is challenging Mnangagwa’s promulgation without Parliament approval and his decision to exempt 20 State-owned companies recently transferred to the Mutapa Investment Fund from going through public procurement procedures .
“The regulations which are made in terms of this legislation always affect the public in Zimbabwe because they allow the first respondent to rule by decree and which create Mutapa Investment Fund, an entity lacking in accountability, but holding most of the valuable national commercial assets and assets,” Nyamande said.
He has challenged the constitutional provision which allows the President to enact laws without the approval of Parliament.
“Section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] is inconsistent with section 134 of the Constitution of Zimbabwe and it is accordingly invalid. Section 5 of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] is inconsistent with Section 2 and Section 134 of the Constitution of Zimbabwe and it is accordingly invalid,” Nyamande’s draft order partly read.
The Mutapa Fund saga continues to deepen, with revelations that Mnangagwa has absolute powers to appoint the chief executive officer and board members without consulting anyone.
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Speaking to NewsDay last week, Citizens Coalition for Change (CCC) spokesperson Promise Mkwananzi said Mnangagwa was taking Zimbabweans for granted.
“The length and breadth of taking Zimbabweans for granted has reached alarming levels,” Mkwananzi said.
“Mnangagwa has created a massive fund, put it under the control of his son (Kudakwashe David Mnangagwa) who was controversially appointed Deputy Minister of Finance and has blocked any measure of accountability by exempting the said entity from going to tender when procuring goods and services. These are unacceptable nepotistic tendencies.”
Lawyer and CCC legislator Fadzayi Mahere also said the move by Mnangagwa was illegal.
“The uncomfortable truth is that the creation of the Mutapa Fund is illegal. Mnangagwa doesn’t have the power to amend an Act of Parliament. The new looting vehicle is ultra vires the law and the Constitution,” she said.
Former Finance minister Tendai Biti said Mnangagwa did not have powers to make law as this was the preserve of Parliament.
Biti said the statutory instrument used to change the name of the fund and move the shareholding of the State enterprises was illegal as the President had usurped Parliament’s powers.
Veteran economist Tony Hawkins said government had never understood the role of a sovereign wealth fund.
Hawkins said countries such as Norway, Botswana and others in the Middle East used sovereign wealth funds to utilise domestic savings to diversify their economies by investing offshore.
Mnangagwa has in the past been criticised for over-relying on statutory instruments to introduce far-reaching measures without involving Parliament.
Financial expert Tinashe Murapata said government has indirectly nationalised the entities by creating of the Mutapa Fund.
“What is happening is nationalisation of commercial assets with direct control and command by the centre. Many of these assets were private, had private shareholders, parastatals, ran at arm’s length and now all directly bundled under the command of Mutapa,” he said.
