Morning Docket: 08.21.19

(NICHOLAS KAMM/AFP/Getty Images)

* The House Ways and Means Committee has filed for summary judgment in its lawsuit against the Treasury Department and IRS over their refusal to turn over President Trump’s tax returns and has also asked the judge to consider the case on an expedited basis. [The Hill]

* Jones Day blasted plaintiffs in the new parental leave bias claims against the firm on social media, alleging that while one ignored “both the law and biology” to file suit, the other’s performance was “below expectations.” [American Lawyer]

* New York adopted the Uniform Bar Exam to make it a little easier for law school graduates to pass the test. Well, uh… that didn’t exactly work out as planned because the UBE had little to no impact on test performance. [New York Law Journal]

* This just in from the Seventh Circuit: In case you were wondering, there’s no such thing as a First Amendment right to lie on your bar applications. [Big Law Business]

* In case you missed it, lawyers for Adnan Syed, subject of the “Serial” podcast, have applied for certiorari before the Supreme Court, asking that the justices reverse a Maryland Court of Appeals ruling where he was refused a new trial. [CNN]


Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

IMF Warns Zimbabwe Against Pay Boost as Living Standards Crash – The Zimbabwean

The warning puts the IMF at odds with Finance Minister Mthuli Ncube, who said in an interview he’s in favor of boosting wages in both the public and private sectors to restore living standards and create consumer demand. Ncube is looking for ways to revive an economy that’s forecast to contract this year for the first time in a decade.

In the six years to 2016, Zimbabwe boosted pay for its about 400,000 civil servants to a level that makes up more than 90% of tax revenue, compared with 40% in 2010, said Patrick Imam, the IMF’s resident representative.

“The government wage bill is now on a sustainable footing,” he said in response to questions. “Looking ahead, it is crucial that public wage growth be aligned with economic growth and government revenue.”

In February, the government said a quasi-currency known as bond notes, and RTGS$ in their electronic form, would no longer trade at parity with the U.S. dollar and in June it reintroduced the Zimbabwe dollar, which it had abolished in 2009 after a bout of hyperinflation. It also banned the use of the American currency. The exchange rate is now about 10 to the U.S. dollar and the price of goods bought by middle class workers, such as civil servants, has risen in tandem as these are mostly imported. Officially annual inflation is at 176%, but some analysts estimate it’s as high as 570%.

The resulting economic hardship has spawned calls by the opposition for protests against plunging living standards.

Police violently dispersed demonstrators in the capital, Harare, on Friday, while a second planned rally in the second-biggest city of Bulawayo on Monday was banned by the government. More protests are planned in other cities this week. In Harare 128 people were arrested during the demonstration, according to human rights lawyers.

Having fired 3,000 workers from the public service, there’s limited room for the state to cut jobs further. Both the IMF and the government say that more health workers and teachers will be needed in coming years.

Austerity Measures

Ncube’s government has implemented harsh austerity measures, including regular hikes to fuel prices, in a bid to comply with an IMF Staff-Monitored Program seen as a precursor to getting debt relief that’s needed to restore the economy. It will also need to implement a series of political reforms to convince creditors to participate in any debt restructuring.

The IMF program is due to end in March, with a first review scheduled for next month.

“The Staff-Monitored Program is also intended to assist in resolving the long-standing arrears to external creditors and facilitate re-engagement with the international community,” Imam said. “Given the recent history of Zimbabwe, in particular the fact that the country has arrears to other international organizations, as well as bilateral arrears, the fund is not yet in a position to financially support the country.”

Zimbabwe’s economy collapsed after a wave of seizures of white-owned commercial farms that began in 2000 slashed export income. In November 2017, Robert Mugabe, who had led the country since 1980, was ousted as president in a coup and replaced by Emmerson Mnangagwa. Ncube was appointed about a year ago and tasked with putting the economy back on a sound footing.

Zimbabwe Official Defends Crackdown on Protests, Urges Patience with Economy – The Zimbabwean

Though “everybody’s got the right to demonstrate,” there have “been a lot of insinuations and campaigns of violence,” Sibusiso B. Moyo told VOA in an interview. Citing public safety, he endorsed a Zimbabwe court’s ruling hours earlier to uphold a police ban on a protest organized by the opposition Movement for Democratic Change (MDC) alliance.

Former Major General Sibusiso Moyo, center, who was appointed Foreign Affairs and International Relations Minister speaks with a fellow minister, before taking the oath of office, Dec. 4, 2017, in Harare.

Alliance leaders are pressing President Emmerson Mnangagwa and the ruling ZANU-PF party for a role in a transitional government. They had organized a demonstration Monday in Bulawayo, the country’s second-largest city, but police authorities banned it hours before its intended start. Two other opposition demonstrations still are planned this week: for the central city of Gweru on Tuesday and the southeastern city of Masvingo on Wednesday.

Police also had pre-emptively banned a demonstration in Harare last Friday, a decision upheld by a Zimbabwe court. Hundreds of MDC supporters ignored the ban, leading to clashes between civilians and police. Video and photographs showed police hitting and kicking some demonstrators  among actions that drew complaints of excessive force from civil and human rights groups, including the United Nations human rights office.

Police, not demonstrators, showed up in force on Bulawayo streets Monday, with foot patrols wielding shields, batons and, in some cases, pistols. The Associated Press reported police trucks and water cannons positioned in the downtown area.

Riot police arrest and forcibly apprehend protestors during protests in Harare, Aug. 16, 2019.

Riot police arrest and forcibly apprehend protestors during protests in Harare, Aug. 16, 2019.

A young man in Bulawayo, identifying himself only as James, told VOA that negotiations between the government and opposition leaders were even more important than demonstrations.

“Honestly, to demonstrate, we can end up being hurt by being beaten, being chased around. There’s really nothing that we see coming out of it,” James said. “But these men should sit down and see what they can do for us, especially us, the youth. … We have been affected a lot, and we are getting old just running.”

Moyo, the foreign minister, told VOA the administration is “undertaking economic reforms [that] are fundamental and they are key to ensuring that even the youth would finally have jobs created for them, so that we can create an environment where investors and the capital will find it easy to come into this country, where jobs will be created, and the youth will be part and parcel of economic activity.”

Moyo said Zimbabwe is midway into a two-year “transition stabilization program” to revive the country’s devastated economy: “We have got one year to go and we are saying we should by then be out of the doldrums.”

The southern African country of nearly 16 million is experiencing its worst financial crisis since 2008, beset by hyperinflation and the fallout of decades of corruption. Many struggles to buy basics such as food and medicine. With the poor economy and crops devastated by drought and a spring cyclone, the UN World Food Program anticipates that 5.5 million people will need emergency food aid by next April.

Zimbabwe's Finance Minister Mthuli Ncube delivers a speech to present his mid-term budget statement on Aug. 1, 2019 in Harare.

Zimbabwe’s Finance Minister Mthuli Ncube delivers a speech to present his mid-term budget statement on Aug. 1, 2019, in Harare.

Finance Minister Mthuli Ncube, who had predicted 3.1% growth for 2019, offered a sobering update to Zimbabwe’s parliament in early August. “The revised 2019 GDP growth is expected to be negative,” Reuters news service reported him as saying.

Ncube did not provide an updated figure.

Zimbabwe ex-Vice-President Phelekezela Mphoko ‘on the run’ – The Zimbabwean

Phelekezela Mphoko was co-vice-president with Emmerson Mnangagwa under Robert Mugabe

Mr Mphoko was due at a police station to make a statement on allegations being levelled against him but drove away when his car was approached by the officials, AFP news agency reports.

His lawyer said Mr Mphoko feared being detained and poisoned.

He also denied he was on the run, calling the phrase “sensationalist”.

Mr Mphoko was a co-vice-president under Robert Mugabe.

He served alongside current President Emmerson Mnangagwa when Mr Mugabe was ousted by the military in November 2017, but the two have fallen out.

‘Poison fears’

Mr Mphoko was part of a faction that wanted Mr Mugabe’s wife, Grace, to succeed him rather than Mr Mnangagwa, South Africa’s Mail and Guardian newspaper reports.

The Zimbabwe Anti-Corruption Commission (ZACC) wants to talk to him about alleged abuse of office.

Mr Mphoko’s lawyer, Zibusiso Ncube, told AFP that his client was willing to answer questions, but left when he heard the police “had instructions to detain him”.

Mr Ncube told the BBC’s Shingai Nyoka that his client feared for his life and was concerned that he would be “injected with a poison”.

‘Not a fugitive’

The former vice-president is prepared to stand trial and denies claims he abused his office after allegedly storming a police station demanding the release of an official, Mr Ncube said.

Mr Mphoko “is not a fugitive, and he hasn’t been charged with anything”, he added.

“He would never run away. The allegations are sensationalist.”

Earlier this month, the president fired Tourism Minister Prisca Mupfumira “for conduct inappropriate for a minister of government” after her arrest over the disappearance of millions of dollars from the country’s pension fund.

ZACC alleges the money went missing during her time as minister of labour and social welfare. Ms Mupfumira denies the allegations.

Zimbabwe Official Defends Crackdown on Protests, Urges Patience with Economy
Zimbabwe police deploy in Gweru, MDC challenges protest ban

Post published in: Featured

Zimbabwe police deploy in Gweru, MDC challenges protest ban – The Zimbabwean

HARARE – Zimbabwe police deployed in force in the city of Gweru on Tuesday, witnesses said, as authorities sought to keep a lid on dissent after banning the third anti-government protest that the main opposition party has sought to organise inside five days.

The Movement for Democratic Change (MDC) planned rolling mass demonstrations in different cities starting last Friday. It accuses President Emmerson Mnangagwa’s government of mishandling the economy, which is facing its worst crisis in a decade, and repression.

The MDC said it would challenge the ban in court on Tuesday. The party failed to overturn two previous bans on marches in Harare and Bulawayo.

In Gweru, a central city, police patrolled on foot and in lorries and also cordoned off a university, a local journalist told Reuters.

“There is a determined effort by the regime to ensure that there is no more democratic space,” MDC national spokesman Daniel Molokele said.

“They are also deploying a lot of military and police in the streets… It clearly shows that the new government is even worse than that of Robert Mugabe.”

The demonstrations are viewed as a test of Mnangagwa’s willingness to tolerate dissent in a country tainted by a long history of repression under his predecessor Mugabe.

But authorities are jittery following violent fuel protests in January that triggered an army crackdown that killed more than a dozen people.

Bail Application for Pride Mkono Set for Today – The Zimbabwean

21.8.2019 6:14

The bail application hearing for Pride Mkono, the Crisis in Zimbabwe Coalition Youth Chairperson, is set for today, Wednesday 21 August 2019 at 9AM (Court F). On 17 August he was denied bail at the Harare Magistrate Court after he appeared before Magistrate Mambanji facing charges of subversion. 

Pride Mkono

He was remanded in custody to 29 August 2019 and advised to seek bail at the High Court. He is represented by Moses Nkomo of the Zimbabwe Lawyers for Human Rights.

Pride is currently held at Chikurubi Maximum Prison. He joins a list of 22 civil society leaders and human rights defenders and opposition leaders who have been charged with subversion since the beginning of the year. Others facing similar charges include:CiZC Chairperson Rashid Mahiya, Japhet Moyo and Peter Mutasa of ZCTU, Obert Masaraure (ARTUZ), Evan Mawarire of #ThisFlag, Rita Nyampinga (FEMPRIST), Sithabile Dewa (WALPE), George Makoni (CCDZ), Tatenda Mombeyarara (Citizens Manifesto), Gamuchirai Mukura (COTRAD), Frank Mpahlo (TIZ), Farirai Gumbonzvanda (Rosaria Memorial Trust) and Promise Mkwananzi of Tajamuka.

More details to follow….

*Kudakwashe Sibanda wins 11 BCA Major*

Post published in: Featured

MDC position on SADC Communique – The Zimbabwean

The MDC is perturbed by the statement on Zimbabwe in the 36-paragraph SADC Communique issued Sunday following the regional body’s 39th summit of Heads of State and Government that ran from 17 to 18 August 2019 in Dar es Salaam, Tanzania. The SADC Communique is gravely concerning not just about what it said but also about what it did not say about Zimbabwe.

On paragraph 14 of their Communique, SADC leaders report that “Summit noted the adverse impact on the economy of Zimbabwe and expressed solidarity with Zimbabwe and called for the immediate lifting of the sanctions to facilitate socio-economic recovery in the country”.

Other than paragraph 6 of the Communique that congratulates “Emmerson Dambudzo Mnangagwa, the President of the Republic of Zimbabwe as Chairperson of the Organ on Politics, Defence and Security Cooperation”, nothing else is said about Zimbabwe.

It is disconcerting that SADC could congratulate Mr Mnangagwa as the new head of the regional body’s organ on Defence and security at a time when Zimbabweans are suffering insecurity and defenselessness from the regime in power in Harare.

While SADC leaders are well within their rights to pronounce themselves on the sanctions issue, it is disappointing that they have a frozen and opportunistic narrative on the matter. There’s no difference between what they have been saying since 2001 and what they said yesterday, like a record stuck in a groove.

For SADC leaders, it is enough to make the news headlines by “expressing solidarity with Zimbabwe” and “calling for the immediate lifting of the sanctions to facilitate socio-economic recovery in the country”.  This 18-year old stock-narrative no longer has an audience besides the SADC leaders themselves.

On sanctions, SADC leaders must speak through actions, not through convenient but hollow words for the media. Contextualizing sanctions over a year ago, on January 2018, Mnangagwa himself said, “Yes, sanctions are there, but we should not continue talking about them. We must have solutions and already we have solutions in agriculture, and this should cascade to all sectors”.

Given Mnangagwa’s position, SADC’s call “for the immediate lifting of the sanctions to facilitate socio-economic recovery in the country” is odd and out of step with the reality in Zimbabwe.

Zimbabweans have come to know that when SADC leaders want to ignore or distort the tricky crisis of illegitimacy in Zimbabwe, they wax lyrical about sanctions and express “solidarity with Zimbabwe”, while saying and doing nothing about the worsening plight of Zimbabweans.

Yet there can be no Zimbabwe without Zimbabweans.

Before its 38th summit in August 2018, SADC was confronted by military and police atrocities committed in Harare on 1 August 2018, in which six Zimbabweans were killed in cold blood and 35 others were critically injured by the Army and the Police. This was confirmed by the Kgalema

Motlanthe Commission, an international body whose appointment SADC supported.

It is incredulous that the 2019 SADC summit was dead silent about the findings of the Motlanthe Commission and the failure and the unwillingness, by Mnangagwa’s administration to hold to account the army and police officers who killed six and injured 35 Zimbabweans on 1 August 2018.

Even worse, between 14 to 28 January 2019, at least 17 Zimbabweans were killed, hundreds tortured, some raped, by elements in the army, police, CIO and Zanu PF militia with thousands were displaced internally and externally in an unprecedented orgy of State violence that affected all major cities across Zimbabwe.

As in the case of the atrocities committed on 1 August 2018, in fact worse than in that case, no process of enquiry has been undertaken; and the State culprits are once again getting away scot-free with impunity.

The January 2019 scenario was another major clampdown on citizens and was carried out resulting in 17 extra-judicial killings, 17 cases of rape and other violations of a sexual nature, 26 abductions, 61 displacements, 81 assaults consistent with gunshot attacks, at least 586 assaults, torture, inhuman and degrading treatment (including dog bites), and 954 arrests and detention (including dragnet detentions). Further, a record-breaking 22 MDC and Civil Society leaders including parliamentarians and labor leaders face trumped-up charges of treason and subversion.

On 16 July 2019, labor leaders received anonymous letters with bullets in a clear move meant to intimidate the labor movement against exercising their right to peacefully demonstrate and petition. Where is SADC’s responsibility to protect?  When will SADC, just for once, stand with the people of Zimbabwe and express solidarity not with Zimbabwe but with Zimbabweans?

Yes. Zimbabweans have had enough of a SADC that is always congratulating the President of Zimbabwe and expressing solidarity with the State but never addressing itself to the plight of the ordinary people brutalized by the State.

As SADC leaders were meeting in Dar es Salaam over the weekend, Zimbabwean State agents were busy abducting civil society and political activists; while the police and army were issuing illegal prohibition orders like confetti to deny citizens from holding peaceful demonstrations against the worsening economic hardships induced not by sanctions but by unprecedented corruption through rent-seeking schemes like command agriculture, fuel cartels and abuse of treasury bills by the ruling elite.

On the back of Zimbabwe’s crisis of illegitimacy, these hardships induced by corruption coupled with incompetence are causing multitudes of Zimbabweans to cross the borders into neighbouring SADC countries, notably but not only South Africa, Mozambique, Malawi and Zambia. The consequences of the emigration influx on regional economies are too ghastly to contemplate, yet SADC leaders continue to bury their heads in the sand like ostriches, only to raise the heads when they want to pontificate about 18-year old sanctions while doing nothing about them in real economic terms.

The MDC reiterates that the root cause of Zimbabwe’s problems is political, being a crisis of governance. A legitimacy crisis.

The July 2018 elections further entrenched the legitimacy crisis through a fundamentally flawed electoral process that did not guarantee the will of the people.  The 2018 plebiscite did not conform to the provisions of the SADC Principles and Guidelines Governing Democratic Elections and the African Union (AU) Declaration on the Principles Governing Democratic Elections.

The electoral process was marred by irregularities including a highly partisan and captured Zimbabwe Electoral Commission, lack of transparency in the electoral process including on the printing and storage of ballot papers and poor stakeholder engagement by the Zimbabwe Electoral Commission, a party-state-military complex, partisan conduct of traditional leaders, partisan distribution of food aid, widespread Intimidation, abuse of State resources, biased State media,  an Electoral Law that is not aligned to the Constitution of Zimbabwe including the disfranchisement of diasporans and post-election violence. Such a flawed electoral process perpetuated the legitimacy crisis and is manifesting in the current socio-economic crisis, deteriorating human rights situation and lethargy.

Moreover, there was an outright fudging of the figures as demonstrated by the fact that the Zimbabwe Electoral Commission revised downwards its own figures a record three times in a plebiscite SADC still held as credible.

The MDC urges SADC to urgently take note of the worsening situation in Zimbabwe as a threat to peace and security in the region and to recognize its responsibility to protect. We urge SADC to take the following specific actions:

1. Urgently be seized of the matter of Zimbabwe in order to address the multifaceted crisis and prevent further deterioration of the situation.


2. Urgently find a lasting solution to the Zimbabwean crisis anchored on facilitated and credible national dialogue.

MDC Communications

Criminal Justice Reform Day — See Also

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LAWYER TOLD CLIENTS IT WAS OKAY TO GROW POT: Narrator: It was not okay.

GENERAL COUNSEL WHO WAS ALLEGEDLY GROPED WANTS A CONVICTION: Not a plea deal.

JEFFREY EPSTEIN JAIL BED WILL: Estate planning!

SUPREME COURT CLINIC: U.T. Law offers one.