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Zivhu speaks when Zimbabwe’s economic and humanitarian crisis is worsening thereby further deteriorating the living standards of the citizenry. He posted on twitter:

A RECORD number of Zimbabwean lawyers will appear at Harare
Magistrates Court on Friday 10 July 2020 answering to charges of
defeating or obstructing the course of justice as defined in section
184(1)(d) of the Criminal Law (Codification and Reform) Act following
their arrest in June.

The lawyers namely Advocate Thabani Mpofu, Tapiwa Makanza and Joshua
Chirambwe were arrested in early June in a period in which Zimbabwe
Republic Police members swooped on legal practitioners for conducting
their professional duties.

First to be arrested on Monday 1 June 2020, was Advocate Mpofu, who is
represented by Beatrice Mtetwa and Raymond Moyo of Zimbabwe Lawyers
for Human Rights (ZLHR), who was charged with committing various
offences including defeating or obstructing the course of justice as
defined in section 184(1)(d) of the Criminal Law (Codification and
Reform) Act alternatively, fraud as defined in section 136 of the
Criminal Law (Codification and Reform) Act and alternatively perjury
as defined in section 183(1)(a) of the Criminal Law (Codification and
Reform) Act.

Advocate Mpofu, who is out of custody on RTGS$20 000 bail, was also
charged with corruptly concealing a transaction from a principal as
defined in section 172(1)(b) of the Criminal Law (Codification and
Reform) Act.

On Count 1, which is a charge of corruptly concealing a transaction
from a principal as defined in section 172(1)(b) of the Criminal Law
(Codification and Reform) Act, prosecutor Michael Reza of the National
Prosecuting Authority alleged that the 38 year-old Advocate Mpofu
connived with Everson Samukange, who was a Professional Assistant at
Venturas&Samukange Legal Practitioners in 2017, to divert a contract
entered into between Senziwani Sikhosana, the Managing Director of
Access Finance and Venturas&Samukange Legal Practitioners, wherein
Everson Samukange would represent Sikhosana in an undisclosed civil
matter.

Reza alleged that Everson Samukange received US$6 000, which was
deposited into his Standard Chartered Bank account from Sikhosana
through Access Finance which he later conveyed to Advocate Mpofu.

On Count 2, which is a charge of defeating or obstructing the course
of justice as defined in section 184(1)(d) of the Criminal Law
(Codification and Reform) Act, Reza alleged that in January 2019,
Advocate Mpofu attempted to defeat the course of justice by conniving
with Tapiwa Makanza and Advocate Choice Damiso to draft an affidavit
in the name of Simbarashe Zuze, who is non-existent, to purport as if
Zuze had sworn an affidavit before Advocate Damiso with the aid of
Makanza, who professed to be his lawyer.

Advocate Mpofu, Reza said, went on to lodge the said affidavit at the
Constitutional Court before Justice Paddington Garwe bearing only the
name of Simbarashe Zuze without any other identification details under
case number CCZ03/2019 to purport as if Zuze was challenging the
appointment of Kumbirai Hodzi as Prosecutor-General.

By so doing, Reza charged, Advocate Mpofu, Makanza and Advocate Damiso
intended to cause the Constitutional Court to nullify Hodzi’s
appointment as Prosecutor-General on the basis of a fictitious person
who did not have the necessary locus standi.

The application seeking to nullify Hodzi’s appointment as
Prosecutor-General, Reza said, was struck off the Constitutional Court
roll on suspicion that it could be fictitious and did not meet some
set standards.

On Count 3, which is a charge of defeating or obstructing the course
of justice as defined in section 184(1)(d) of the Criminal Law
(Codification and Reform) Act or alternatively perjury as defined in
section 183(1)(a) of the Criminal Law (Codification and Reform) Act,
Reza alleged that Advocate Mpofu, Chirambwe and Lawman Chimuriwo
connived on 7 February 2019 to obstruct any investigations into the
existence of Zuze after noting that Zuze’s application had been
dismissed.

The trio, Reza said, plagiarised the contents of the affidavit
purported to have been made by Zuze and created, with those contents,
another affidavit in the name of Chirambwe before filing another
application at the Constitutional Court under CCZ04/19.

Reza said by filing an application on behalf of Chirambwe with the
full knowledge that Zuze’s statement in his application had been
challenged by Judicial Service Commission Secretary Walter Chikwana on
the basis that Zuze did not exist, Advocate Mpofu intended to defeat
and obstruct the course of justice.

Another lawyer, Makanza, who was arrested by ZRP members on Sunday 7
June 2020,  will also appear at Harare Magistrates Court after he was
charged with defeating or obstructing the course of justice as defined
in section 184(1)(a) of the Criminal Law (Codification and Reform)
Act.

Makanza, who is represented by Paidamoyo Saurombe of ZLHR, is accused
by prosecutors of creating a fictitious person Simbarashe Zuze, who is
the person who in January 2019 filed an application in the
Constitutional Court challenging President Emmerson Mnangagwa’s
appointment of Kumbirai Hodzi as Prosecutor-General as he did not
score high marks during interviews conducted by Judicial Service
Commission.

The 38 year-old Makanza is out of custody on RTGS$20 000 bail.

Another lawyer, Chirambwe, who is out of custody on RTGS$20 000 bail,
will also appear at Harare Magistrates Court after he was arrested and
charged with defeating or obstructing the course of justice as defined
in section 184(1)(a) of the Criminal Law (Codification and Reform)
Act.

The 28 year-old Chirambwe, who is represented by Obey Shava of ZLHR,
is accused of conniving with Advocate Mpofu to obstruct any
investigations into the existence of Zuze upon realising that the
initial application tendered by Advocate Mpofu in the Constitutional
Court was struck off the court’s roll on 6 February 2020.

Also appearing at Harare Magistrates Court are Harare West legislator
Hon. Joanah Mamombe and MDC-Alliance party Youth Assembly leaders
Cecelia Chimbiri and Netsai Marova, who are victims of abduction and
torture and who were arrested by ZRP members on 11 June 2020 and
charged with publishing or communicating false statements prejudicial
to the state as defined in section 31(a)(ii) of the Criminal Law
(Codification and Reform) Act and publishing or communicating false
statements prejudicial to the state as defined in section 31(a)(iii)
of the Criminal Law (Codification and Reform) Act. The trio was also
charged with defeating or obstructing the course of justice as defined
in section 184(1)(f) of the Criminal Law (Codification and Reform)
Act.

Hon. Mamombe, Chimbiri and Marova, who are represented by Alec
Muchadehama, Jeremiah Bamu, Tinomuda Shoko and Roselyn Hanzi of ZLHR,
went missing on 13 May 2020, when they were abducted in Harare by some
unidentified people and were later found on 15 May 2020 after being
dumped in Bindura in Mashonaland Central province.

They have already been charged with committing public violence after
they were arrested on 26 May 2020 for allegedly participating in an
anti-government protest against hunger during the national lockdown
period as defined in section 37 of the Criminal Law (Codification and
Reform) Act and for contravening section 5(3) (a) as read with section
5(1) of Statutory Instrument 99 of 2020 of Public Health (COVID-19
Prevention, Containment and Treatment) (National Lockdown) Order, 2020
and will stand trial in August.

Last Friday’s Gazette contained Statutory Instrument [SI] 154 of 2020, titled The Research (Constitution of the National Public Health Institute) Regulations, 2020  [link].  These are a set of regulations made by Vice-President Chiwenga under the Research Act [link].  As their name suggests, the regulations establish a body called the National Public Health Institute whose main functions are:

• to conduct research into, and advise the Government on, all matters concerned with public health in Zimbabwe;
• to facilitate and implement the development of a comprehensive public health delivery system;
• to facilitate the development of skills and research capacity useful for developing a national policy in the field of public health;
• to develop national standards and guidelines for implementing national policies in the field of public health;
• to monitor and investigate potential health risks and disease trends;
• to act as “the platform for multi-stakeholder consultations” on issues affecting public health; and,
• under authority delegated by the Research Council, to register foreigners who wish to undertake public health research in Zimbabwe.

The Institute will be headed by a Chief Government Medical Officer and two deputies appointed by the President;  they will preside over a 12-member management committee of mostly health practitioners appointed by the Research Council.  The Institute will have its own staff, including a registrar to register public health researchers.

At least once a year the Institute will convene a Public Health Stakeholders’ Forum “to ensure co-ordination and non-duplication of research projects, initiatives, endeavours, resources in the field of public health” and to further the Institute’s objects and functions.

The Institute is no doubt a worthy enterprise, and possibly a necessary one in view of Zimbabwe’s disorganised response to the Covid-19 pandemic.  On the other hand, at least two important questions need to be answered:

1. Is it legally permissible to establish such an Institute under the Research Act?
2. Won’t the Institute duplicate most if not all the functions of the Advisory Board of Public Health under the Public Health Act?
3. Can the Institute be Established under the Research Act?

How institutes are established under the Act

The Research Act establishes the Research Council of Zimbabwe [RCZ] which has the function of promoting, directing, controlling and co-ordinating research in Zimbabwe.  The Act also provides for the establishment of research institutes to deal with particular fields of research.  Under section 24 of the Act, an individual Minister who wants to establish such a research institute must approach the RCZ with a proposal and the RCZ forwards the proposal, together with its recommendations, to the Vice-President responsible for the Research Act.  If the Vice-President approves the proposal, he notifies the Minister concerned, who can then establish the research institute.  Research institutes established in this way have the function of carrying out research in Zimbabwe in accordance with their constitutions and research programmes approved by the RCZ.

Two points must be noted in this:  research institutes are established to conduct research, not to do other things, and the research is controlled and supervised by the RCZ.

Was the National Public Health Institute properly established under the Act?

For the following reasons, the Institute does not seem to have been established validly:

• Clearly it was not established under section 24 of the Research Act.  The procedure laid down in that section could not have been followed, if only because the Vice-President responsible for administering the Act established the Institute.  Section 24 envisages the Vice-President approving applications by Ministers to establish institutes, rather than he himself establishing them.
• In any event the Vice-President did not purport to establish the Institute under section 24, but rather through regulations under section 32 of the Act.  That section empowers him, after consultation with the RCZ, to make regulations prescribing:

“anything … which, in his opinion, is necessary or convenient to be prescribed for the better carrying out of or giving effect to the provisions of [the] Act”.

The section does not mention establishing institutes.  Even if it did, any institutes established by regulations under section 32 would have to be concerned primarily with research, which is what the Act is all about.  The functions of the Institute extend far beyond research and include developing a comprehensive public health system, developing national standards and guidelines in public health, being the platform for multi-stakeholder consultations, registering foreign researchers, and so on.

• One important function of the Institute is to register and supervise foreign researchers in public health.  That is a function which the Act gives to the RCZ [See section 27] and even though the regulations say that the RCZ has delegated that function to the committee of the Institute, the general rule is that a body such as the RCZ cannot delegate its statutory functions to someone else.  Even if the Institute could be established under the Act, therefore, it could not carry out this function.

Duplication of Functions of Advisory Board of Public Health

Another objection to the new Institute ‒ and another reason for saying it has not been properly established ‒ is that it duplicates many of the functions which Parliament, through the Public Health Act, has vested in the Advisory Board of Public Health.  Indeed, so similar are its functions to those of the Advisory Board, and so similar is its composition, that the inference is inescapable that the Institute is intended to supersede the Advisory Board completely.  Parliament could never have intended to give the Vice-President power to do this under the Research Act.

Similarity of functions

The similarities in the functions of the Institute and the Advisory Board are striking:

• The Advisory Board advises the Minister of Health and Child Welfare on all matters relating to public health [section 4(8)(a) of the Public Health Act].  The Institute will give advice to the President, the Vice-President and the Minister of Health on all matters connected with public health [section 4(a) of the regulations].
• The Advisory Board identifies priorities for public health [section 4(8)(b) of the Act].  The Institute will direct or assist in planning and implementing public health delivery [section 4(e) of the regulations].
• The Advisory Board carries out or commissions research into public health [section 4(8)(d) of the Act].  The Institute will conduct research on all matters connected with public health [section 4(a) of the regulations].
• The Advisory Board hosts the Annual National Health Consultative Forum, to promote the sharing of information on public health issues [section 4(8)(f) of the Act].  The Institute will convene an annual Public Health Stakeholders’ Forum for much the same purpose [section 20 of the regulations].

Similarity of membership

The Advisory Board and the committee of the Institute are also strikingly similar in their membership.  Both contain representatives of all the major health professions as well as local authorities, and both have a legal practitioner as a member [though it is not clear what use a lawyer will be in a public health emergency].

Conclusion

As we have said, the similarities between the board of the new Institute and the Advisory Board of Public Health are so great that it seems clear the Institute is intended to replace the Advisory Board.  The Advisory Board is a statutory body created directly by the Public Health Act, and only Parliament can replace or abolish it or transfer its functions to a different body.  A Minister or Vice-President cannot do so through regulations made under some other Act.

The use of regulations to establish an important body such as the Institute is yet another example of the Government’s resort to statutory instruments rather than getting Parliament to enact an appropriate statute.  Statutory instruments are subordinate legislation and should be confined to subordinate matters, matters of detail that are too petty to be covered in an Act of Parliament.  If Vice-Presidents and Ministers enact statutory instruments that go beyond that, they usurp the role of Parliament and infringe the doctrine of separation of powers, one the founding values of our Constitution.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

Post published in: Featured

Africa Albida Tourism (AAT) chief executive Ross Kennedy said: “We are so pleased to be
able to open for business after being closed for 100 days.” It follows the reopening of the
Victoria Falls rainforest yesterday.

“For the morale of hospitality people, it could not have come soon enough!
We look forward to welcoming guests back to the estate, albeit with only parts of the
business operating,” Kennedy said.

“We shall monitor demand, access and borders as the region awakens, then gradually open
more of the property,” he added.

“We have published some exciting special packages for the Zimbabwe market and already
have enquiries and bookings.

“We look forward to the day when all air and road access is open again so that this Natural
Wonder of the World, the Victoria Falls, can be seen by all.”

On July 10, eight Lokuthula Lodges, the Victoria Falls Safari Club central building, along with
eight rooms, as well as two Victoria Falls Safari Suites will open.

AAT operations manager Andy Conn said having had ample time to view the impact of the
COVID-19 pandemic unfolding around the world, the hospitality group had evolved its
health and safety protocols in accordance with WHO guidelines.

“Whilst we appreciate the dramatic impact of the pandemic, and hence the need to adopt
new protocols, we would ultimately like to ensure the guest experience is affected as little
as possible and a natural safari getaway can still be enjoyed.”

New protocols will include the temperature screening of guests and staff, the regular
sanitisation of facilities, availability of sanitisers, controlled staff and guest interaction and
ongoing staff training and education to identify risk and mitigate the spread of viruses.
AAT is a leading Zimbabwean hospitality group, operating a portfolio of properties in
Victoria Falls, namely, Victoria Falls Safari Lodge, Victoria Falls Safari Club, Victoria Falls
Safari Suites, Lokuthula Lodges and The Boma – Dinner & Drum Show.

Post published in: Featured

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to data collected by Law.com, which NLJ 500 firms shrank their headcount in 2019, but have laid off or furloughed employees during the economic turmoil caused by COVID-19?

Hint: At these firms, headcounts went down between 1 and 2.7 percent last year.

See the answer on the next page.

My grandfather used to have a saying: “Do today’s work today.” This is, I appreciate, not a unique idea, and indeed is pretty widespread, but I’m going to attribute that to it being a generally good universal principle to live by. Fleetwood Mac, whose songs are all secretly productivity tips, even sang about the idea on the third single from Rumours, “Don’t Stop.”

Most procrastination can be solved by just doing today whatever you need to do today. It’s easy to fall into a hope of a magical future tomorrow where whatever stopped you from getting done today what you wanted to will no longer exist. But tomorrow is usually the same as today and yesterday. If today you were slowed down by a toothache or a broken arm, you will probably still have a toothache or a broken arm tomorrow, or at least injure yourself in some other way as you seem accident-prone. Or if today you were thrown off by some emergencies, you’re probably going to just get new emergencies tomorrow. Things tend to continue as they have.

Staying Away From Tomorrow-ism

Don’t fall into magical thinking. Be realistic about when and how you can complete the tasks that you need to complete, and what will stand in the way. Some things really are one-off circumstances and won’t repeat, but you need to be brutally honest with yourself about whether that’s really what you’re facing.

Being realistic about priorities will also allow you to make better judgments about what can be pushed off until tomorrow. If you are having trouble completing tasks because each day you have 29 “urgent” tasks and only get through five of them, then likely the 24 other weren’t really that urgent. If you find that you’ve pushed 10 of those items forward for three weeks, one day at a time, then those 10 items are really not urgent. In all those cases, the problem is one of proper priorities, and just not trying to do everything in one day would solve at least part of the problem.

Thus, if you do have to adjust priorities and put something off, be realistic about when it will get done. Allowing tasks to simply snowball from one day to the next won’t do anything except confuse your planning and waste time each day as you adjust all tasks. And when you do have to put something off, be realistic about when it needs to get done and will get done.

Also remember the difference between something that has to be done and something that has to be done by you. Very often the real issue with lingering tasks is that they’re best delegated. This folds back into prioritization: the time to realize a task should be delegated is when it comes up. If you decide to delegate only after having pushed the task off a day at a time for two weeks, then you’ve wasted a lot of time.

Get Started Today, Not Tomorrow

So get started today — not tomorrow — by properly setting your priorities and getting done today what needs to be done. The tomorrow you will thank you for it.

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Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is a partner at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.