By Trust Maanda/Arnold Tsunga
THE recent order by the government for businesses to reduce prices and sell their commodities at the prices that prevailed before June 18,
2007 was ill conceived and was executed without regard to the consequences that have since proved to be dire for the economy.
Many business owners and executives were arrested for allegedly selling their goods at beyond the prices that prevailed before June 18 well before there was a law which stipulated the prices.
In order to legalise the arrests the government then promulgated Control of Goods (Price control) (Amendment) Order (No.11) Statutory Instrument 142 of 2007 well after the police had already started arresting business executives.
Statutory Instrument 142 of 2007 orders the goods to be sold at the prices that prevailed before June 18.
There is an absurdity in that what is not stated is what the pre-June 18 prices were in respect of the goods.
This is so because most goods in respect of which business owners and executives were arrested had no gazetted prices which could be used to determine with certainty what the prices for such goods were as of June 18, 2007.
Further if there were gazetted orders for the pre-June 18 prices (which there was not) in respect of all goods, then the business executives ought to have been charged for contravening those orders and not contravening Statutory Instrument 142 of 2007.
The absurdity of the statutory instrument lies in ordering a return to the pre-June 18 prices when there were no such prices in respect of most if not all the goods which the government ordered to be sold at the prices of pre-June 18.
In simple terms, if there was in existence gazetted prices pre-June 18, 2007, then the government only needed to enforce the gazetted orders through the police and not through gazetting another statute to give effect to it.
This absurdity also amounts to a breach of the rule of law. A significant element of the rule of law is that a person should not be made to suffer in body or in goods except for a distinct breach of law which law should be clear in its meaning and purport.
Lack of clarity of the law as in this case amounts to a breach of one’s right to the protection of the law as stipulated in Zimbabwe’s constitution as it makes people unaware of what to do or not do in order not to fall foul of the law.
Put simply the meaning of the law should not be left to conjecture.
This absurdity created fertile ground for unscrupulous officials to demand the reduction of prices as reported in the media, to any level without any yardstick as to how much was the pre-June 18 prices.
They took advantage of this confusion to order reduction of the prices to ridiculous levels in some cases in order for them to buy the goods themselves or their relatives.
There have been reports that many police officers are facing charges for this corrupt act but the loser ultimately was business and the national economy as goods (investments) were literally looted with state-sanctioned impunity.
The business owners were arrested in the absence of an existing law that stipulated the prices in most cases.
Statutory Instrument 142 of 2007 was gazetted ex post facto. The law must exist in advance of a breach.
It is a principle of the law that the law does not apply retrospectively.
The detentions of the business executives were not warranted.
This is so because the discretion of the police to arrest and detain should be exercised judiciously.
The police are required to exercise their discretion to arrest in circumstances where there are reasons to believe that the suspect will not turn up for trial.
In considering whether a suspect will abscond his individual circumstances should be considered.
It can not be said that the business executives that were arrested and detained would abscond in view of the fact that fines and not incarceration were the likely penalties they would suffer in the event of any conviction.
It is inconceivable in the circumstances how the police would exercise the discretion to detain business people when upon conviction they were merely liable to pay a fine.
Statutory Instrument 142 of 2007 and indeed any regulations made in terms of the Control of Goods Act (Chapter 14.05) regulate the sale of goods only and not any other services unrelated to the sale of goods.
The only services regulated by the instrument are “services relating to the distribution, disposal, purchase and sale of such commodities”.
It is clear that the transport business, for example is exempt from the operation of Statutory Instrument 142 of 2007.
Consequently, the arrest and detention of owners or drivers of commuter transport and the seizure of their buses/vehicles for purportedly overcharging the fares were and remain unlawful in so far as their services are not goods in terms of the Control of Goods Act and the regulations made thereunder.
The regulation or purported monitoring of businesses falling under professions that are self-regulating ostensibly using the regulations relating to goods is also unlawful in that it subjected professions to regulation by a body other than their professional bodies.
Professions such as of doctors, accountants, real estate agents and lawyers have their own professional regulatory bodies which are usually independent and must not be controlled by anyone to maintain the integrity and credibility.
This self-regulation is done for standards to be set and maintained by persons with the knowledge of the workings and ethics of these professions.
For a taskforce set up and controlled by the Minister of Industry and Trade to purport to regulate these professional bodies is illegal, highly unethical and seriously compromises their independence and self-regulation
It follows therefore that the past and any ongoing detentions of business executives were and are unlawful and smack of political expediency and reckless populist considerations.
Business owners were sacrificed on the altar of political expediency.
This is yet another example, after the farm invasions, of the government’s propensity to resort to looting and expropriation to gain short term political support.
This culture of flagrant lack of respect for private property rights has been at the centre of investor loss of confidence in the Zimbabwean economy.
This view is buttressed by the statement of the president to the effect that the government will expropriate businesses which do not comply with the government’s orders to reduce prices.
It is therefore clear beyond doubt that the decision to slash prices without regard to the viability of businesses and the continued availability of such goods if business adhered to these ridiculous prices was a political as opposed to an economic decision.
Zimbabwe’s economy can only recover if there is restoration of good governance and the rule of law, respect for human dignity and rights and a culture and climate of accountability and anti-impunity.
This cannot be achieved so long as the public policy making process is privatised and subordinated to narrow and short term party political expediency.
Without respect for the rule of law and human rights economic development will forever remain a pipe dream.
*Trust Maanda and Arnold Tsunga are lawyers with the Zimbabwe Lawyers for Human Rights.