Author: TSA Press

The Supreme Court heard oral argument today in New York State Rifle & Pistol Association v. City of New York and… it’s going to be okay. This is the first gun case the Court has heard in a decade. In the last one, D.C. v Heller, Justice Antonin Scalia invented an entirely new gun right: A personal right to keep a firearm in the home for self-defense. Many were worried that the Court might use NYS Rifle to create a new gun right for outside the home. But there seemed to be little appetite at oral argument to do that.

Instead, the case will likely turn on mootness. New York State had a permitting regulation that the gun lobby complained about. Likely fearing what an aggressive, conservative Court would do to the very concept of state regulations of firearms, New York changed the law. Still, the gun lobby pressed its case. Shockingly, the Supreme Court agreed to hear it, but today was all about how they probably shouldn’t have. From CNBC:

Paul Clement, who argued on behalf of three gun owners in New York and a state affiliate of the National Rifle Association, argued that the case was still active because his clients could potentially seek monetary damages in the future.

Clement also argued that even under New York’s new regulations, his clients could still be penalized if they did not travel directly to a firing range outside the city, such as if they stopped for coffee.

But Richard Dearing, an attorney for New York, said that the city guaranteed that gun owners would not be prosecuted for such stops. And he said that any challenge to the new regulations would have to be argued in a future battle.

“There may be a controversy here. But it’s a new controversy that will have to be litigated in a new case,” Dearing said.

Justices Samuel Alito and Neil Gorsuch seemed hot to get to the merits of the case, instead of mootness. But alleged attempted rapist Brett Kavanaugh pulled a Clarence Thomas and rendered himself mute during the arguments. Arguably, this case isn’t even in front of the Court without Kavanaugh. I’m guessing he was the fourth vote to grant cert in this case. But his unusual silence suggests that even he is unsure if this is the right case to upend the regulator power of the states.

Don’t be fooled, there will be a case this Court will find to continue its pro-death reading of the Second Amendment. This just never seemed like the right one. Not with John Roberts, who loves to punt cases, still there as a critical fifth vote.

I still can’t tell you why the Court decided to hear such an obviously moot issue. And, therefore, I could still be surprised by the ruling. But, based on the readout from oral arguments, it sure seems like the moot case will be ruled moot, perhaps with Alito writing some kind of threatening concurrence warning states that any attempt by the states to protect themselves from gun violence will be met with retribution from the Supreme Court.

For now, I consider this bullet, dodged.

Supreme Court shows little appetite for expanding gun rights in arguments over repealed New York regulation [CNBC]

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Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Federal prosecutors are using laws they normally would use to prosecute drug dealers in a criminal investigation of drugmakers to determine if they intentionally allowed communities to be flooded with opioids, according to a news report.

Citing people familiar with the matter, The Wall Street Journal reported that the prosecutors in New York had opened a criminal investigation into several companies to find whether they had violated the Controlled Substances Act. The unnamed sources told the newspaper that grand jury subpoenas reported in regulatory filings by at least six companies – Teva Pharmaceutical Industries, Mallinckrodt, Johnson & Johnson, Amneal Pharmaceuticals, AmerisourceBergen and McKesson – were connected to the investigation. The latter two companies are among the largest drug distributors in the country, while the others are drug manufacturers. Subpoenas for additional companies are expected in the coming months.

The investigation is in addition to litigation comprising lawsuits filed by more than 2,300 municipal, county and Native American tribal governments from around the country over the defendants’ alleged role in creating the opioid crisis. The multi-district litigation, known as MDL 2804, includes another distributor, Cardinal Health, as well as retail pharmacy companies, and is taking place in the U.S. District Court for the Northern District of Ohio in Cleveland.

Last month, Teva and the three distributors reached an 11^th hour $260 million settlement that would enable them to avoid a trial, and it was previously reported that the distributors were in talks to settle the litigation for $18 billion. Other companies involved in the litigation had also been seeking settlements, and it was reported that Purdue Pharma – maker of the long-acting opioid painkiller OxyContin (oxycodone) – was seeking to resolve the litigation by filing for Chapter 11 bankruptcy and paying billions of dollars over the course of several years.

In another case, a judge in Oklahoma had ordered Johnson & Johnson to pay $572 million in August after finding that the company had created a “public nuisance” by helping to fuel the opioid crisis in the state, but it was subsequently determined that he had made a computational error after the company appealed the ruling. A $107 million charge was thus reduced to $107,000.

Photo: Moussa81, Getty Images

Tambudzai Nhari, a 69-year-old widow, knows the difference between having property rights in theory and having them in fact. When her husband died four years ago, she inherited three small thatched huts, but none of the surrounding fields that he owned. And her in-laws even dispute her ownership of the huts.

“My brothers-in-law took all the fields my late husband owned, leaving me staring at this poor little home,” said Nhari. She lives outside Marondera, a town about 80 kilometers east of Harare.

Her in-laws see things differently. “The home belonged to our brother and now it is our home. His widow just stays there and nothing more,” said Gilbert, brother of Odreck Nhari, Tambudzai’s deceased husband.

Tambudzai Nhari recalled participating in gangs of violent fighters that seized white-owned farms in Zimbabwe two decades ago. But since those land struggles, she has never had even a single piece of land to her name.

“During the war, women like myself just fought, not knowing that we were simply helping our men to become owners of land,” Nhari said. “None of that land is in my name.”

Nhari is one of millions of Zimbabwean women who have no ownership rights to farms or other agricultural property, despite decades of working in agriculture. Like Nhari, many Zimbabwean women face resistance to their rights to own land, mainly from family members after their husbands pass away.

The lack of land ownership contributes to high rates of poverty among Zimbabwe’s women, who constitute 60 % of the country’s 16 million people. “Women in Zimbabwe bear more poverty than their male counterparts because a significant number of them own no land or properties,” said Melinda Musasiwa, a member of the Zimbabwe Women Lawyers Association.

Lack of land ownership is a significant barrier to income in an economy largely based on agriculture. The country has 39.6 million hectares of land, very little of it owned by women.

Yet women have the formal law on their side. Under Zimbabwe’s constitution, everyone has a right to buy, own and sell all forms of property, regardless of gender and marital status.

Moreover, Zimbabwe signed the 1979 United Nations Convention on the Elimination of All Forms of Discrimination against Women, the 1995 United Nations Beijing Platform for Action, and the Southern African Development Community’s 1997 Gender and Development Declaration. All of these declarations forbid placing women at a disadvantage.

The gap between theoretical and actual land ownership by women can be traced to graft, says attorney Musasiwa. “Corruption is hugely disadvantaging Zimbabwe’s women in land and property ownership, because most women have nothing of value to give in return for rights related to land and property,” she said.

Zimbabweans are facing a bleak few months beyond the festive season as a financial crisis – characterised by rising hyperinflation, foreign and domestic currency shortages, and company closures – worsens the plight of the populace in an economy already burdened by drought and the ongoing effects of Cyclone Idai.

There is more bad news: the crisis will persist for a long time to come, say economists and analysts.

They have warned Zimbabweans that they may have to become accustomed to life without essentials such as electricity, food and healthcare – a situation worsened by the doctors’ strike, over pay and poor working conditions, that has lagged for nearly three months.

The drought has been dire, exposing more than 2 million people to hunger and even starvation if there is no immediate intervention.

The US-based Famine Early Warning Systems Network – a leading provider of information and analysis on food insecurity – puts the effects of Zimbabwe’s current food insecurity into greater perspective in its November report, released this week.

The report warns that “large-scale assistance needs persist and are expected to continue through at least the start of the main harvest” in April 2020.

“The high parallel market exchange rates for foreign currency still largely influence the pricing of most goods and services,” says the report.

“This is impacting a large proportion of the population, whose earnings in local currency are vastly eroded.”

President Emmerson Mnangagwa’s government had hoped to address some of the distortions in the financial sector by having Zimbabwe ditch the use of foreign currencies – in place since 2009 at the height of hyperinflation – and bringing back the Zimbabwe dollar.

The Zimbabwe dollar marked its return earlier this year, and new notes bearing its insignia were introduced about two weeks ago.

However, this has not eased pressure on the economy, say economists.

One of the major criticisms against reintroducing the Zimbabwe dollar has been its immediate loss of value, with companies such as Nampak taking a R2 billion knock, attributed mainly to the financial volatility in Zimbabwe.

The JSE-listed company said this week that it had “provided for an expected loss” on R800 million in cash balances from the Zimbabwe currency unit.

For South African retailer Pepkor, Zimbabwe’s failing economy and soaring inflation have resulted in the company relinquishing its majority shareholding in Power Sales, a clothing retailer with operations across Zimbabwe.

Chris Mugaga, CEO of the Zimbabwe National Chamber of Commerce, said the new notes were never meant to address the dire economic situation.

Rather, he said, the introduction of the notes and coins, which the Reserve Bank of Zimbabwe expects to bump up to Z$1 billion within the next six months, was merely aimed at substituting electronic balances with local hard currency.

“It was a misconception to expect the new money to stabilise the economy,” he told City Press this week.

“The point was for us to keep in line with best practice in terms of benchmarking hard currency in the economy against the total money. For Zimbabwe, we are looking at a current figure of below 2%, but internationally, it has to be between 10% and 15%.”

Mugaga explained that Zimbabwe’s economy was highly informalised, with more than 60% of it classified as the “grey economy”, describing a high demand for cash.

“Naturally, the propensity for using cash becomes more elevated,” he said.

“The Reserve Bank has not pumped money into the economy; it is not inflationary because they have not pumped new money on top of the electronic balances.

“It is a matter of withdrawing electronic balances and substituting them with hard currency.”

But the inflation figures tell another story. The latest official figures show month-on-month inflation accelerating from 17.7% in September to 38.8% in October.

Zimbabwean companies listed on the Zimbabwe Stock Exchange are already required to implement hyperinflation accounting standards for reporting purposes.

For Taurai Nyanga, a 31-year-old part-time teacher in Harare, the cost of living continues to escalate beyond his means, and the financial and economic meltdown is taking its toll.

He supplements his salary by giving extra lessons.

“If it is this difficult for those of us who have some form of an income, I feel for those who do not have anything. You can only get Z$300 from the bank and to do so, you have to wake up early or be prepared to spend the whole day there – yet you cannot buy much with the money. This week, I had to sell the cash I got from the bank to have some extra money,” said Nyanga.

John Mangudya, the governor of Zimbabwe’s central bank, is in a difficult position as he tries to address the hard-currency shortages while battling inflationary pressures.

He said this week that new, higher-denominated Zimbabwe dollar notes would be introduced: “While managing money supply to avoid inflation, we will soon introduce higher denominations. This is necessary to enhance convenience to the transacting public.”

But Nathan Hayes, an Africa analyst at the Economist Intelligence Unit, told City Press that the new notes stood little chance of addressing the financial sector crisis.

“In an environment of spiralling price increases, the new notes will purchase little,” he said, adding that “ongoing inflation and currency depreciation” would further erode their value.

“In order to really boost conditions in the economy, the government needs to boost confidence in the Zimbabwe dollar, and to improve its purchasing power and ability to retain value. Improving economic fundamentals will therefore be vital as a precursor to successfully introducing a new currency,” said Hayes.

Hayes and other analysts focusing on the fundamentals of Zimbabwe’s economy say the sanctions imposed on individuals and some companies by the US and the EU do not constitute “restrictions on investments into Zimbabwe or trade” with the southern African country.

“The sanctions target both specific individuals and companies. Zimbabwe’s current economic crisis is not the result of these targeted sanctions, and can be attributed to decades of economic mismanagement and corruption,” said Hayes.

Jee-A van der Linde, an economist at NKC African Economics, had a more nuanced take on the matter.

“There is some credibility to the Mnangagwa administration’s claim that they have a raw deal,” he told City Press this week, but was quick to add that “the administration has done its fair share to prove that international reservations” on the government and its policies were warranted.

“Perhaps there is an argument that the regime’s hands are tied with regard to making economic progress, but it has absolute freedom to clean up its governance act and begin to demonstrate that the Robert Mugabe era really is behind it,” said Van der Linde.

“Essentially, it is up to the government to get its act together.”

Although Mnangagwa and regional Southern African Development Community leaders want the targeted sanctions lifted, analysts have said there are no immediate prospects of that.

Opposition leaders in Zimbabwe say the government has to speedily factor in political and electoral reforms first. Opposition party The Movement for Democratic Change (MDC) has maintained pressure on Zimbabwe’s ruling Zanu-PF party, but has encountered police resistance in staging its anti-government demonstrations.

MDC deputy president Tendai Biti called the sanctions mantra coined by the government a “false narrative of deception, deflection, diversion and deceit” which sought to “deflect from the illegitimacy and failure of the incompetent” current regime.

Moreover, the US Senate Committee on Foreign Relations tweeted this week that the crisis in Zimbabwe was causing its citizens great hardship and challenged Mnangagwa “to work with, not against, his people to end corruption and implement reforms to restore the economy and end the suffering” of the populace.

Mnangagwa took over from former leader Mugabe after a coup in 2017. He has insisted that sanctions are hampering the country’s economic recovery.

The Cyclone Idai disaster, which hit Zimbabwe in March, has added to the government’s woes.

Analysts believe that apart from the infrastructure destruction, the cyclone also affected agricultural productivity across crops such as grain, tea and coffee.

The resultant food shortages and destroyed farming ventures exerted further pressure on food insecurity and unemployment.

Hayes said there was a growing risk that the government would revert to printing money to fund the fiscal deficit.

This is the same policy that contributed to hyperinflation in the 2000s, following massive growth in the money supply base.

In his 2020 budget presentation, delivered in October, Finance Minister Mthuli Ncube announced the end of austerity measures which have seen prices for fuel, grain and electricity escalate, thanks to the removal of subsidies.

Ncube and Mnangagwa have said that the economy will improve next year.

But tension is running high as Zimbabwe’s economy continues to plummet, exacerbated by frustrations over the financial situation.

Fuelling more anger are the weekly price increases in fuel, the lengthy electricity outages and the continued political standoff between Mnangagwa and his main rival, MDC leader Nelson Chamisa.

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WASHINGTON — The opposition Movement for Democratic Change claims that party leader Nelson Chamisa was on Sunday nearly gunned down by the police in Zimbabwe’s Marondera region, east of Harare, while he was planting trees at Dombodombo Clinic.MDC presidential spokesperson Nkululeko Sibanda says Chamisa left the scene unhurt while some party supporters suffered injuries when the police opened fire with live and rubber bullets when they attempted to disperse them.

Police spokesperson Assistant Commissioner Paul Nyathi dismissed these allegations as false, saying the police used teargas to disperse the MDC activists, who he said were holding an illegal gathering.

Nyathi said the MDC should have sought permission from the police to engage in tree planting as prescribed in the country’s security laws.

The newly-crafted Maintenance of Peace and Order Act, which replaced the dreaded Public Order and Security Act, clearly stipulates that senior police officers of every district are the regulating authority who can fix conditions under which public gatherings, demonstrations and processions can be held.

But Sibanda tells VOA Zimbabwe Service that there was no need for them to inform the police about the tree planting event, which resulted in the police opening fire on MDC activists.

But it was on social media that Zimbabweans first found their voice to rise up against the 93-year-old strongman, with platforms like WhatsApp, Facebook, and Twitter proving to be vital in mobilizing and coordinating countrywide protests.

Now, just two years later, activists say the government that replaced Mugabe’s is trying to silence those same social media accounts with legislation that bears all the hallmarks of China’s dystopian censorship and surveillance system.

“It is a terrifying piece of legislation”

Zimbabwe’s Parliament is weighing legislation that would authorize the use of surveillance technologies, grant sweeping powers to crack down on social media users, and allow the government to snoop on citizens’ private communications. The latest version of the bill — known as the Cyber Crime, Cyber Security and Data Protection Bill of 2019 — was passed by President Emmerson Mnangagwa’s Cabinet last month and is currently being drafted for publication and approval by Parliament, where it’s expected to easily pass under Mnangagwa’s Zanu-PF party majority.

Activists warn things could get ugly soon after that.

“It is a terrifying piece of legislation,” Bekezela Gumbo, a researcher at the Zimbabwe Democracy Institute, told VICE News. “It has everything it needs to give the ruling Zanu-PF party and its agents in government the legal basis to imprison opponents using the internet.”

Although the public still doesn’t know exactly what the final version of the bill will contain, activists say it’ll likely be overly broad and lacking the sort of necessary protections that rights groups have called for in the past.

“The definitions of crimes were described in such broad terms that they could arrest people because they have said something on a social media platform to criticize the government or say something that is unfair to government,” Kuda Hove, a legal expert with the Media Institute of Southern Africa, told VICE News, referring to a previous draft of the bill he’d seen.

From Twitter to the streets

Back in 2016, social media was the spark for the protests that would ultimately lead to Mugabe’s ouster in 2017. It was on Facebook, Twitter, and critically WhatsApp that the genesis of the protest movement began to take shape.

At the time, WhatsApp accounted for over one-third of all mobile data used in Zimbabwe as citizens shared anti-government news and information about demonstrations.

Officials were powerless at the time to stop the surge in online dissent, and they began exploring ways to curb it. It was during that period, as Mugabe was losing his grip on power, that the first version of the Computer Crime and Cyber Crime Bill was drafted.

Since Mugabe’s departure, the bill has seen a number of revisions. The most recent version remains shrouded in mystery, but it includes a vague mandate to protect “cyberspace,” according to Mnangagwa.

The president’s office did not respond to multiple requests for comment on the latest bill approved by the Cabinet. The only official who would speak was Ivanhoe Gurira, the principal director at the Ministry of Information, who denied the bill was meant to promote censorship, claiming Zimbabwe has other laws that help protect access to information and freedom of speech.

When asked about the criticism from activists about the new law, Gurira said: “Only those people that want to operate outside the law would say so.”

But Mnangagwa’s government has already shown its willingness to restrict online speech.

In January, the government partially shut off internet access and blocked access to social media platforms including Facebook, WhatsApp, Twitter, LinkedIn, Reddit, and Tinder. The move came as the government struggled to contain protests over a sharp spike in fuel prices and generally deteriorating economic conditions. The internet shutdown was soon followed by a brutal military crackdown that left a dozen people dead and over 170 more injured.

Access to the internet was restored a week later, but only after the High Court ruled the government’s order was illegal. Free speech activists say the new cybercrime bill would essentially make another shutdown legal.

“With such precedent, it is indubitable that the underlying intention of the proposed law is to curtail citizens’ fundamental political and civil liberties, especially as government battles to contain the tanking economy and rising citizens agitation,” Nhlanhla Ngwenya, program director at the Open Society Initiative for Southern Africa, told VICE News.

The government has also arrested numerous individuals for online activities since Mnangagwa came to power, including Evan Mawarire, a pastor who was charged with inciting public violence after he posted messages in support of the labor protests on Facebook and Twitter.

“We’re in a country where the basic freedoms that are provided for in the constitution for citizens are being blatantly violated. People are not allowed to speak freely. The amount of arrests that have taken place of people who have spoken out or against the government is shocking,” Mawarire told CNN this week.

Now, under Mnangagwa’s rule, the government is hoping to expand its crackdown on free speech online — and to do that it’s taking its lead from the world’s worst abuser of the internet: China.

China’s deep ties

China and Zimbabwe have long and deep ties that stretch back decades and run to the very highest levels of government.

Many of Zimbabwe’s senior leaders, including Mnangagwa and Vice President Constantino Chiwenga, received military training in China back in the early 1960s.

“You can’t overstate how deep the ties go between these two governments,” Eric Olander, managing editor of the nonpartisan China Africa Project, told VICE News. “They go back a long way together and there’s no indication either side is wavering in their mutual commitment to one another.”

“You can’t overstate how deep the ties go between these two governments”

On the technology front, China is already helping the Zimbabwe government keep a closer eye on its citizens. As part of Beijing’s $71 million Belt and Road investment in the country, the Zimbabwe government has partnered with Chinese facial recognition company CloudWalk Technology to create a surveillance network similar to the one deployed to monitor Uighurs in Xinjiang.

The deal sees CloudWalk technology monitoring major transport hubs and using the data to build a national facial recognition database. The deal also gives the Chinese company access to a rich trove of data on African faces.

Critics worry the new cybersecurity law would augment this nascent surveillance network by monitoring citizens’ online activities as well as their offline movements. And while China’s involvement in Zimbabwe’s surveillance plans remain far from clear, experts expect Harare to lean heavily on Beijing’s expertise to roll it out.

“We probably don’t need a lot of evidence to draw the conclusion that China will likely lend its expertise to building this kind of digital surveillance, given the trust that exists between these two governments and China’s expertise in this area,” Olander said. “Plus, the Chinese have an entire mechanism in place to provide the financing, implementation, and training on how to use technology like this.”

In fact, the Zimbabwean government may have already been inspired by China during the drafting of the new legislation. Officials from the Zimbabwean government were among representatives from three dozen countries who travelled to China in recent years to for weeks-long seminars on information management, according to Sarah Cook, a senior China researcher with Freedom House.

With China’s expertise, Mnangagwa’s government could get closer to stemming the sort of upheaval that toppled his predecessor before it even begins.

“This law is a response to the use of social media by activists, citizen journalists, and researchers during protests, accountability monitoring, and political mobilization,” Gumbo said. “This is what the government doesn’t want, and the bill is a mechanism to avoid public scrutiny. It is meant to curtail freedom of expression.”

The residents occupied the area in 2009 under the Joshua Nkomo and Leopold Takawira Housing Cooperatives.

The area was gazette for settlement by the government in 2010 after which the cooperatives received offer letters for the area.

In December 2015, the then Minister of Local Government, Saviour Kasukuwere toured the area in the company of senior officials from his ministry.

The area in question is Stand Number 48, 49 and the remainder of Salisbury Park of Lochinvar.

Representatives form Marimba Properties, including Rautenbach, who is the company’s Chairperson were in attendance. Other representatives from Marimba Properties who were present include Colonel R. Matonhodze (Rtd) who is the company’s Director and Derrick Elliot, who is also the firm’s legal advisor.

During the 2015 site visit, former Minister Kasukuwere conceded that the area had been fully developed and evictions or demolitions must be stopped and the area should be regularized.

It was agreed that Marimba residential Properties will, therefore, surrender the stands to the government and in return, the government and council would identify suitable of equivalent value to compensate the company.

Documents in CHRA’s possession indicate that Mr Rautenbach accepted the proposal as the Chairman of Marimba Residential Properties.

It was also agreed that council would take over the administration of Stands 48 ad the remainder of Salisbury Park of Lochinvar.

However, in March 2018, the Ministry of Local Government wrote to the Chairpersons of Joshua Nkomo, Leopold Takawira, Wadzanai, Mydek and Dzapasi housing cooperatives informing them of the cancellation of offer letters that had been issued to their members.

Read part of the letter signed by E. Mlalazi (Secretary for Local Government, Public Works and National Housing), “The Ministry had issued those offers believing that the land had been acquired for use by the State. Regrettably, the acquisition process was abandoned by the Acquiring Authority after unsuccessful legal contestations on the part of the Ministry.

“The owners of the company, in whose name the land is registered, have nonetheless been engaged by the Ministry to discuss the way forward on the future of your irregular settlement. They have  expressed interest to work with your beneficiaries to regularize the scheme on terms agreeable to both parties.”

Following the purported cancellation of the offer letters, legal practitioners representing the housing cooperatives wrote to the Ministry of Local Government arguing that its position was ‘unlawful, unreasonable, disproportionate and substantively and procedurally unfair’.

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