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IT seems to me that the new indigenisation legislation is fatally flawed, particularly in regard to the definition of “indigenous”.
I contend that in due course, court challenges will bear this out. The recent regulations contained in statutory instrument 21 of 2010, quoting the Indigenisation Act, define an indigenous Zimbabwean as any person before independence who “was disadvantaged by unfair discrimination on the grounds of his or her race”. However, neither “unfair” nor “disadvantaged” are defined and therein lies the fatal flaw.
Consider this: The notification form IDG 01 in the regulations in effect requires company officials to decide, person by person, whether each shareholder was disadvantaged or not. But how is one to decide? Some discrimination, even if considered unfair at the time, could have had advantageous consequences. Surely each allegation of disadvantage would need to be investigated and an objective decision made on the facts of each case, rather than merely on racial group membership?
Firstly, take, for example, the many students and political activists in the 1960’s and 1970’s who were expelled or detained, were financially supported over long periods of time by foreign donors, and eventually acquired strings of academic qualifications that they probably would not have obtained if on the treadmill of full-time employment. Where those qualifications led directly to senior positions and high appointments that they might not otherwise have secured, where is the disadvantage?
Secondly, consider two stories illustrating that pre-Independence discrimination was not all pro-white. In 1972 I competed for a position as officer-in-charge of a rural training centre. I was told that although I was the stronger contender, it was felt within the department that the position should go to a black man, for reasons of community acceptability. I could argue, as I did at the time, that I was unfairly discriminated against on the grounds of my race.
Was I disadvantaged by that discrimination? When I left the department three years later, I was still a lowly-paid training officer, rather than a highly-paid officer-in-charge so I could argue that I was disadvantaged somehow. Does that pre-Independence experience now make me indigenous?
As a consultant training advisor to the commissioner of police in 1978, I was closely involved with the accelerated black advancement programme, selecting and elevating 40 former sergeants to the ranks of inspector, superintendent and beyond, before Independence. Were the 40 white section officers and inspectors whose promotion was held back to make posts available for black advancement disadvantaged thereby? They thought so at the time. Does that now make them indigenous? Did those who initiated the indigenisation legislation envisage such cases?
I know that such pro-black discrimination was part of a general pattern before Independence. Surely this shows the need to re-think the modalities of defining “disadvantage” in each specific instance — something the architects of the indigenisation legislation appear to have side-stepped, perhaps thinking that to be black is all that is needed to indicate disadvantage?
I hope these perspectives help to stimulate further debate on flaws in the Act itself, as well as in the regulations, and particularly on the impracticality of the notification form IDG 01 that businesses are expected to complete by 14 April. More explicit guidelines are needed on how to identify disadvantaged shareholders.
Howard Dean
Harare.
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