In the National Assembly
Tuesday 16th February 2016
RULING BY MR SPEAKER MUZENDA ON ALLEGED CONTEMPT OF PARLIAMENT
BY HON SAVIOUR KASUKUWERE
The Speaker also made a ruling on a matter of privilege raised by Hon. Wadyajena, as Chairperson of the Portfolio Committee on Youth, Indigenisation and Economic Empowerment, against Hon. Kasukuwere, the Minister of Local Government, Public Works and National Housing in relation to his alleged utterances when he appeared before the Committee on 29th July, 2015, as follows:
Hon. Wadyajena rose on Wednesday the 29th of July 2015, in his capacity as the Chairperson of the Portfolio Committee on Youth, Indigenisation and Economic Empowerment, on a point of privilege concerning Hon. S. Kasukuwere and the alleged words uttered by the Hon. Minister in a meeting of the Committee. Hon. Wadyajena stated that the Committee had been enquiring into the implementation of the Indigenisation Act administered by the Ministry of Youth, Indigenisation and Economic Empowerment and in particular, the progress that had been made in implementing Community Share Ownership Trusts.
Numerous submissions were made by the Ministry of Youth, Indigenisation and Economic Empowerment, from which the Committee determined that the Community Share Ownership Trusts were at different stages of implementation. Of particular interest, was the Zimunya Marange Community Share Ownership Trust which was launched by His Excellency, the President of the Republic of Zimbabwe, Cde. R. G. Mugabe. The Zimunya Marange Community Share Ownership Trust was expected to kick start with a total of US$50 million said to have been pledged by the five diamond companies operating in Chiadzwa Diamond Fields. At the occasion, it was reported by the then Minister of Youth, Indigenisation and Economic Empowerment, Hon Kasukuwere, that the five diamond mining companies had each pledged US$10 million towards the Trust.
Sometime last year, the Committee invited the Board of the Zimunya Marange Community Share Ownership Trust to brief the Committee on progress made in the implementation of the community projects following the US$50 million pledge by the diamond mining companies operating in the area. The Committee was puzzled when the Board indicated that they were yet to receive the alleged pledges. The Committee further invited the representatives of the Diamond Mining Companies who denied ever making such pledges to the Community Share Ownership Trust.
The Committee went on to invite the then Minister of Youth, Indigenisation and Economic Empowerment, Hon. Francis Nhema, the Permanent Secretary and officials from the Ministry, who indicated that the Ministry did not have any letter or correspondence testifying to the pledges. The Committee further made a follow up on the pledges promised during the launch of the Zimunya Marange Community Share Ownership Trust which was broadcast on television. Hon. Kasukuwere, who presided over the establishment of Zimunya-Marange Community Share Ownership Trust, was then invited to clarify matters in order to enable the Committee to make informed recommendations to Parliament on the Community Share Ownership Trusts.
On the 9th of July, 2015, Hon. S. Kasukuwere now the Minister of Local Government, Public Works and National Housing appeared before the Committee after having been invited to do so. In terms of Standing Order No. 25(a), the Minister was requested to take oath and he duly complied. Hon. Wadyajena in his point of privilege stated that he as Chairperson of the Committee, then took the opportunity to highlight the purpose of the Committee meeting.
It is alleged that, Hon. Minister Kasukuwere informed the meeting that discussions relating to the pledges were done at a very high political level and since Government was a key player in these diamond companies, it is inconceivable for it to enter into an agreement with other shareholders in the diamond mining companies. It is further alleged that as further clarification was sought from Hon. Minister Kasukuwere on the matter, the Minister became impatient which resulted in verbal attacks on the Chairperson. It is alleged that he made the following statement:
“I think this is a big witch-hunt, a misplaced one. I do not think it is the Committee but I must say it is yourself, Mr. Chairman, Hon. Wadyajena at a personal level. Mr. Chairman, you have been very careless, I have recordings of your own discussions with journalists”… “This animal is too big for you to hunt; it might turn back and hunt you. In a small way Mr. Chairman, you have been using rekeni”.
He also alleged to be in possession of video clips which testify to the allegations made and recordings of conversations that Hon. Wadyajena had had with the media. Hon. Wadyajena stated that he then ruled that the Hon. Minister Kasukuwere was out of order, indicating to him that his conduct was tantamount to intimidating the Chairperson and the Committee in carrying out its constitutional mandate. Hon. Wadyajena stated that he then requested the Hon. Minister to submit to Parliament Administration any evidence against the chair for appropriate action to be taken but the Minister insisted that it was up to him to avail or not such evidence.
The Hon Chairperson reported that the alleged conduct was a possible violation of the following offences as listed in the schedule to the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08] relating to offences, that is—
(a) Paragraph 4 which relate to Prevarication or other misconduct as a witness before Parliament or a Committee; and
(b) Paragraph 13 which relates to making any oral or written threat to a member or challenging him to fight on account of his conduct in Parliament or Committee.
In my assessment of the matter, it was imperative that I consider the facts as presented to the House and establish whether there is a reasonable suspicion that a breach of privilege has been committed. In other words, do the facts establish a legally rebuttable presumption or are the facts lawfully sufficient to make a case against the Member so charged.
(a) Violation of paragraph 4 which relate to prevarication or other misconduct as a witness before Parliament or a Committee.
The facts as presented do not establish sufficient evidence to make a case against the Hon Minister for violating paragraph 4 of the Schedule to the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08], which creates the offence of “Prevarication or other misconduct as a witness before Parliament or a Committee”. The offence constitutes two elements that is, prevarication or other misconduct as a witness. Prevarication denotes a deliberate misstatement or a lie and other misconduct is too wide but must be linked to prevarication as it is an element of the same offence, therefore, that other misconduct must be related to prevarication. For the Committee to safely conclude that the Hon Minister lied or misled the Committee, it has to weigh the copious evidence of the Hon Minister with the total evidence gathered during its enquiry. The Committee did not substantiate its allegations that the Minister prevaricated by indicating the points at which the Minister is alleged to have prevaricated during the oral evidence session. Furthermore, the Committee did not elaborate on any other misconduct that the Minister is alleged to have committed suffice to say that the Minister became impatient when asked to clarify on some points.
(b) Violation of Paragraph 13 which relates to making any oral or written threat to a member or challenging him to fight on account of his conduct in Parliament or Committee.
The essential elements of the offence are, the making of a threat, oral or written, with intention of making that threat and challenging a member to fight on account of the conduct of the Member in Parliament or Committee. The Committee is of the opinion that the alleged utterances fall into the definition of “threats” to the Committee calculated to convey threats or intimidate the Committee with a design to instil fear, hinder or obstruct them from the performance of their constitutional mandate.
The word “threat” is defined as “any menace of such a nature and extent as to unsettle the mind of the person of whom it operates and takes away from his acts that free, voluntary action which alone constitutes consent”, or “an intention to harm, inflict pain or other harsh action on someone in retribution for something done or not done”. (Concise law dictionary, 4th edition 2012- P Ramanatha Aiyar). The Committee felt threatened hence a Privileges Committee if established, would be able to investigate into the alleged conduct and threats by the Hon Minister and determine whether the utterances constitutes “threats” as defined at law and intended by the Legislature in Paragraph 13 of the Schedule to the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08].
The allegations levelled against the Hon. Minister are serious thus, it was pertinent that I carefully scrutinise all information available to me in determining the matter. Accordingly, I saw it fit that, apart from reading the report that was presented for my consideration, I should be extra cautious and listen to the recording of the Committee’s proceedings on that particular sitting in which the alleged utterances took place. In listening to the recording, I became aware of the fact that it is apparent that there was an exchange of words between the Chair of the Committee, Hon. Wadyajena and Hon. Minister Kasukuwere. The report of the Committee left out some of the utterances by the Chair and the Hon. Minister which would have given a proper context in which the exchanges were made. I found nothing in the conduct or utterances of the Hon. Minister that constitutes “threats” at law on the person of the Chairperson or the Committee in the conduct of its Constitutional Mandate. The Hon. Minister presented his evidence quite eloquently during the hearing and in so doing he wanted to give a brief background to the inquiry for the committee to be able to understand where he was coming from. The other members of the committee even posed questions to the Minister after his testimony showing that the Hon. Minister conducted himself as expected of a witness before a Parliamentary Committee. The facts as presented by the Committee do not establish sufficient evidence to charge the Hon. Minister for committing an offence under Paragraph 13 which creates an offence of “making any oral or written threat to a member or challenging him to fight on account of his conduct in Parliament or a Committee.”
The Chair rules that, on a balance of probabilities, the alleged conduct by the Hon Minister of Local Government, Public Works and National Housing, Hon S. Kasukuwere, does not constitute a prima facie case of contempt of Parliament, and further rules that there is no need for an ad hoc Committee to be established to investigate into the matter.