Category: News Feeds

Michael Flynn will either wind up pardoned by the president or beaten to death by an enraged district court judge. These are the only two possible outcomes.

Last night the former national security advisor filed a motion to withdraw his 2-year-old guilty plea for making false statements to the FBI. Two weeks before his sentencing, after admitting his guilt multiple times in open court, Flynn now wants out of the deal.

The motion filed by Flynn’s emoji-loving lawyer Sidney Powell is only slightly less batsh*t than her tweets. Here’s a fun sample:

The prosecutors concocted the alleged “false statements” by their own misrepresentations, deceit, and omissions. It is beyond ironic and completely outrageous that the prosecutors have persecuted Mr. Flynn, virtually bankrupted him, and put his entire family through unimaginable stress for three years.

After filing, Powell hustled over to the Fox studios to detail “one atrocity after another” by the dreaded Deep State.

“They’ve been abusing their power for the last year in spades, Sean,” Powell told a sympathetic Sean Hannity. “The reason this all came to this is because they tried to get him to lie in the prosecution of United States vs. [Bijan] Rafiekian — his former business partner — and with new counsel standing by his side, of course, there was no way I was going to let him do that and he didn’t want to do that.”

Here on planet Earth, Flynn admitted in his December 1, 2017, plea to knowingly making “materially false statements and omissions” regarding “a project performed by him and his company, the Flynn Intel Group, Inc. (“FIG”), for the principal benefit of the Republic of Turkey.” But after hiring Powell, Flynn had a change of heart and decided that he hadn’t really known that the Turkish government was the real client, that it was all his former attorneys’ fault, and that he couldn’t possibly testify that he and his old partner Bijan Rafiekian had knowingly violated FARA.

Which royally pissed off the prosecutors and also blew up their case against Rafiekian. This was not the cooperation agreed to in the original plea agreement, much less the show of good faith demanded by U. S. District Judge Emmet Sullivan in December 2018 when he strongly advised Flynn’s prior counsel to postpone sentencing if they wanted to keep their client out of the clink. 

So in the government’s latest sentencing memo, it changed its recommendation from 0-6 months for being a very good boy to 0-6 months with extreme side eye. And considering Judge Sullivan’s previous queries as to why Flynn wasn’t charged with treason, it’s a safe bet that His Honor is not inclined toward a noncustodial sentence.

Hence the 24 pages of gobbledygook from Powell accusing the government of “abject bad faith in pure retaliation” because “with new, unconflicted counsel, Mr. Flynn refused to lie for the prosecution.” And if that doesn’t whet your appetite, she’s promised further briefing due to “significant developments in the last thirty days.” What she hasn’t done is assert her client’s innocence of the original charge. But perhaps it got buried under an avalanche of emojis.

Let’s see if Judge Sullivan accepts Flynn’s withdrawal of his plea, or instead lunges across the table to exact just vengeance for wasting two years of the court’s time and patience. We do live in interesting times.

Elizabeth Dye lives in Baltimore where she writes about law and politics.

Download the full report here.

Botswana: mining-dominated exchange seeking to innovate

Botswana is one of the fastest-growing economies in the world. But the Botswana Stock Exchange (BSE) has just 35 equity listings and 49 bond listings. Of these, the vast majority are issued by mining companies.

The debt market is shallow, with government bonds accounting for 65% of bond listings and more than 90% of trading.

Exchange activity may be low, but future prospects are improved by innovative policies. The BSE has tried to boost listings and trading by demanding a higher free float for listings, introducing market making and promoting cross-listings with other southern African countries. In 2019, the exchange launched a board focused on small and medium enterprises (SMEs).

The BSE has also launched education initiatives to improve investment knowledge. As a result, at the end of 2018, the exchange had 90,000 registered investor accounts compared with just 20,000 in 2013.

There is also an energetic attitude toward pensions, with retirement funds allowed to invest up to 70% offshore and funds starting to make allocations to offshore private firms.

In the near future, the BSE is planning to launch depository receipts, which will broaden investor exposure to international securities.

Meanwhile, the bond market is moving toward centralisation of trading, clearing, and settlement of trades, which should unlock capacity, increase efficiency, and align with IOSCO’s Principles for Financial Market Infrastructures, thereby improving the attractiveness of the bond market to international investors.

Botswana | Key numbers

Zimbabwe: RTGS dollar and online trading platform launch

Zimbabwe has one of the oldest financial systems in Africa, with the Zimbabwe Stock Exchange established in 1896.

There are 16 securities dealing firms, 16 asset management firms, 31 securities investment advisers, five securities custodians and two security exchanges registered with the financial regulator.

Beginning in 2009, to counteract runaway inflation, Zimbabwean businesses were able to use foreign currencies for trade.

The stock exchange has witnessed huge outflows: equities sold by foreigners increased by 466% from USD42 million in January 2019 to USD237.83 million in February 2019.

In February 2019, a new currency, the RTGS (Real Time Gross Settlement) dollar was launched for trading.

The economic situation has complicated Zimbabwe’s attempts to stimulate capital markets, including the automation of the stock exchange and the launch in 2018 of the country’s first online trading platform, which allows trading by mobile phone.

Zimbabwe | Key numbers

In future postings… we will take a look at capital market developments in East Africa & Mauritius; Nigeria & Ghana; and Egypt & Morocco. Click here for our earlier look at developments in South Africa and Namibia.

Visit CFA Institute for more industry research and analysis.

About the report

Our tales of African capital markets’ history and future reflect the journey of CFA Institute: from a lunch group in New York City in 1937 to a diverse collection of 170,000 members and 157 societies worldwide in 2019, united with the purpose of leading the investment profession globally for the ultimate benefit of society.

Some of Africa’s exchanges were established in early colonial times. South Africa led the way on the heels of the diamond and gold rush, followed by Zimbabwe, Egypt, and Namibia (a German colony at the time) – all before 1905. Some didn’t outlive the commodities rush but others are still thriving – substantially diversified and modernised.

Some capital markets were established more recently, and their development tells of independence and nation-building: Nigeria in the 1960s; Botswana, Mauritius and Ghana in 1989; Namibia post-independence from South Africa in the 1990s. Others, particularly the East African exchanges, are new and leapfrogging toward greater participation.

All tell of how regulation, trading technology and fintech are enabling fairer, faster and lower-cost participation in finance and investment for more market participants.

The CFA Institute Research Foundation brief was developed in conjunction with the African Securities Exchanges Association (ASEA).

Authors:
Botswana
Kopano Bolokwe, CAIA, MBA, Head of Product Development, Botswana Stock Exchange
Kagiso Sedimo, CFA, FRM, Portfolio Manager, Morula Capital Partners

Zimbabwe
Dennis Murekachiro, Brighton Mutingwende & Norbert Mungwini, Investment Professionals of Zimbabwe

The writer with her sister and father in Trafalgar Square, London, in 2006 [Photo courtesy: Danai Nesta Kupemba]

“I died for this country,” is a running joke in my family; something my father says whenever Heroes’ Day rolls around, laughing so hard that tears form in his eyes.

But beneath his broad smile is a gentle reminder to me and my three siblings: that he nearly did.

My dad was 12 years old when, in 1975, he joined Zimbabwe’s War of Independence. Also referred to as the Second Chimurenga, it lasted from 1964 to 1979, and marked the beginning of the end of white minority rule in what was then known as Rhodesia.

It was a fight against Ian Smith’s Rhodesian government (backed by Britain), which sought to protect white settler interests at the expense of the indigenous people of Zimbabwe.

Heroes’ Day commemorates those who fought and died for Zimbabwe’s independence.

With a stomach last filled a few days earlier and his adolescent chest puffed out with pride, my father had signed up to the Zimbabwe African National Liberation Army (ZANLA) alongside men two or three times his age in search of freedom and a regular supply of food.

They had a shared dream: that they would one day have their own little piece of Zimbabwe, right the wrongs of the past and take back what had been stolen from them by white settlers.

After a few days of training, my dad and hundreds of other men and boys trekked through the unforgiving terrain of the Eastern Highlands mountain range, surviving on a diet of the grapefruits that grew there. They were heading towards a training facility in Chimoio, Mozambique, and the promise of hot food. Or so my father thought.

A lieutenant my father had befriended on the trek had other plans for him. He made him his errand boy and when the time came for most of the men to march on to Chimoio, he kept my father with him. They would march further to a camp in Nyanga, he told him.

My father watched wistfully as the other soldiers marched towards the promise of a hot meal and some rest, singing war songs as they disappeared into the gaping mouth of a sloping valley.

Dozens of blisters later, my father and the lieutenant arrived at Nyanga. At the centre of the camp, a large pot sat atop a fire. The portions were generous and my father was grateful to have been taken under the lieutenant’s wing. But when he looked around at weapons so old he imagined they must have been recycled from the First Chimurenga (1896-97), he wondered if he would ever get to do what he had signed up for: fight.

So when word came that they would march to Chimoio, my father did so enthusiastically – less bothered by the trek and the diet of grapefruits than he had been before. But the lieutenant, he noticed, walked stiffly, as though his body were reluctant to carry him there.

My father smelled the death before he saw it. When he saw what had happened to many of the men he had marched with before, he was overwhelmed by sadness and an unshakeable feeling of gratitude that he carries with him to this day.

The writer, left, with her dad and sister on their last trip to Edinburgh, Scotland, in 2009 [Photo courtesy: Danai Nesta Kupemba]

My mother’s battlefield

At around the same time in Bocha, a remote area a couple of kilometres outside what was then Umtali and now Mutare, my mother was 11 years old and being tortured by colonial soldiers – the same people my father was preparing to fight.

The soldiers had accused my mother and her family of harbouring bandits in their home. They ransacked their modest house and the small shop that was their livelihood but found no one. Then they beat my mother and her nine-year-old brother with electrical wires until their skin was raw and their throats hoarse from screaming.

A seed of resentment was planted in her. She knew then that she would do whatever she could to ensure the liberation of her country.

She would later tell me stories, her voice filled with excitement and nostalgia, about how she would sneak out of her house at night, careful not to get caught by her parents, and head to the nearby ZANLA base, where she would sing for the newly-inducted soldiers to boost their morale.

She had nothing to give them but her voice, she said, so she gave them that.

My grandfather caught her many times, but the beatings he administered did not stop her returning to the camp with the hope that her voice, soft and lilting, would make someone’s day.

At this point in the telling of her story, my mother would invariably begin singing Jehovah Mufudzi Wangu (The Lord Is My Shepard in Shona), her brown eyes alight with memories and the hope that I might join in. But Shona felt foreign and heavy on my tongue so I would stay quiet and the flame in my mother’s eyes would recede.

The writer in her Christmas jumper while her sister watches on as her mother forces her to wear a beanie hat because of how cold it is [Photo courtesy: Danai Nesta Kupemba]

The end of one war

After the war ended in December 1979 and independence was finally achieved, schools that had been forced to close reopened.

My mum joined her school choir. My dad, fresh from the army, enrolled in the same school. He says he heard her singing before he saw her, but that as soon as he did, he fell in love.

My mother, so defiant and strong, loved the soldier in my father and the youthful recklessness that mirrored her own. My father, scarred but healing from the horrors he had seen, loved the songbird in her.

Together, they carved out a small piece of Zimbabwe for themselves. It was not much; a small house that they shared with another family. My father got a job in the foreign office and my mother in town planning. At home, they would make sausages and buns that they would sell in their workplaces. They scraped and saved.

My father rose through the ranks and, in 1994, was posted to Germany as a diplomat. His family – my mother and my older brother and sister – went with him and enjoyed life in Bonn. They returned to Zimbabwe in 1999, a couple of months after I was born, satisfied and happy.

Posted to England

But sometimes life has a strange sense of humour.

As it did in 2003, when my parents, so deeply in love with their nation, were posted to the place they had fought – and sung – against: England.

I was four years old when we arrived and remember wondering where the sun had gone.

But then it snowed and, convinced that I was living in my very own Christmas card, my infant self was won over. Any early memories I had of Zimbabwe quickly disappeared.

It did not take long until I was completely immersed in British culture. I cried when we wore poppies and remembered our lost soldiers. I sang the national anthem word for word, proud to use the voice I had inherited from my mother to show my allegiance to my new home. I sang Auld Lang Syne, willing her to join in, but she would just shake her head and sigh.

Relatives, who often passed through our home when visiting London taunted and teased me, calling me “kasalad”, a term often used to describe “vanhu varasa tsika”, which means people who have lost their traditional ways.

They pretended to help me by telling me words in Shona, but behind their “help” they held back giggles. My mother tried to defend me but I saw the sadness in her eyes. I was not in touch with my culture, and I did not care. As far as I was concerned, I was British.

To my parents it felt as though I was denouncing my heritage; a heritage they had fought for; a heritage they had seen friends die for. They had struggled for an identity I did not want.

The writer with her sister and their paternal grandparents during one of their visits to London in 2008 [Photo courtesy: Danai Nesta Kupemba]

Smiles, snarls and sadza nenyama

Each year when International Week rolled around at my primary school, my mother would pack sadza nenyama, a Zimbabwean delicacy, for me to take in. I would have to show the other pupils how you rolled it in your hand and patted it down in the gravy before putting it in your mouth.

They would compliment me on how delicious it was. But I did not want their compliments. I wanted bangers and mash or shepherd’s pie.

I stopped participating in the food portion of International Week, wondering how I was supposed to feel a connection to this country that felt so removed from who I was and how I lived.

When 2008 came and inflation hit, common people in Zimbabwe became trillionaires who could not buy bread. For months, Zimbabwean diplomats were not paid. But my parents’ loyalty never wavered. They worried about relatives back in Zimbabwe. But they never contemplated defecting as some other diplomats did.

While other people we knew concocted plans to stay in England after their assignments had finished, my parents were busy building their dream home on the outskirts of Harare. My mother, who had drawn the plans herself, would return there for long stretches of time, meeting architects and builders. She always returned happier than when she had left, her mind imagining an expanse of trees as far as the eye could see. Their roots were rural and they dreamed of returning to that.

My father simply wanted something that was his again and to leave behind the graceless pretence of England. He had grown tired of the smiles in which he saw veiled snarls, the words with their double meanings, how polite everyone was and was not.

During our final year in England, my mother seemed to glow, she stopped going to work and focused all her energy on returning. We spent more time together. She took me ice skating, watching from the side of the rink. Everything seemed perfect.

And then I realised that she was preparing me for the loss that was to come; the loss of the only home I had known.

A family holiday in Wales in 2006 [Photo courtesy: Danai Nesta Kupemba]

Returning to Zimbabwe

When the time finally came for us to return to Zimbabwe at the end of 2010, I felt numb. I stared at my green passport in the airport departures lounge, willing it to turn maroon, to offer me the physical validation of what I felt inside: that I was British.

I cried on the plane, and asked my dad if we would ever return. He said yes, but he did not look at me as he said it.

When the plane landed, the first thing I noticed was the heat. While my parents removed their jumpers to let the sun dance on their skin, I instantly despised it.

My parents enrolled me in an elite boarding school where the other pupils were fascinated by my accent. They liked listening to me talk and I liked being listened to. I told them about the time my aunt had pushed me into a fountain in Trafalgar Square, about the holidays we would take to Wales, Scotland and Ireland, about snowball fights and how cold it would be in winter. They asked me if I had ever met the queen and I told them about how I almost had one time when my parents had attended an African diplomats’ ball.

They hung on to my stories the way I hung on to those memories.

My stories validated that I had been there, that I belonged there, because I felt certain I did not belong in Zimbabwe.

When they spoke Shona, my mind struggled to keep up, so I would just laugh without knowing what I was laughing at.

When the teachers called me London because they could not remember my name, I would feel a frisson of pleasure run through me. I felt seen for who I knew I was.

But then, a few months after returning to Zimbabwe, my accent threatened to leave me; my friends told me it was fading, that I did not sound the same. I heard it too; my t’s were now hard when I said water. I tried to entice it to stay by using more slang than usual; sprinkling my sentences with words I had hardly ever used in England. I became a caricature.

My accent no longer drew people in and my stories grew old and repetitive too.

It rained the day my mother casually told me that I was losing my accent. It felt like a final goodbye from England, a farewell to her unwanted child.

That was the day things changed.

I started listening to my parents’ stories more, like the one about how my father had eaten tinned food that had been poisoned by Rhodesian soldiers, or about the racism my mother had endured as she worked odd jobs in England to save enough money to buy us Christmas presents.

I understood then that their experience of England and mine had been completely different. The country I saw as home, they saw as an oppressor.

I realised then that who I was was not rooted in where I had grown up but in the people who loved me. I may never love Zimbabwe as fiercely as they do, but I know now that I love them more than I could ever love England.

Following a visit to Harare by China’s Minister of Foreign Affairs, Wang Yi, Zimbabwe has tabled proposals for funding a further six economic projects.

“The six projects are in pursuit of capitalising on China’s Belt and Road Initiative across Africa, and it will help boost the economy, especially at this time when we are seeing investment bottlenecks from the traditional Western source markets,” said a Zimbabwe government official, who was part of a committee working on the projects.

He added: “China is willing to come to the party, and we are pursuing this through this initiative, which will essentially see China commit even more funding into the economy.”

The details of the funding proposals have not yet been divulged.

Mnangagwa met Wang in Harare yesterday. The Chinese Foreign Affairs Minister was also scheduled to visit a tobacco farm near Harare, with the Asian country among the top buyers of tobacco from Zimbabwe. Tobacco is a major export earner for Zimbabwe, which also exports the green leaf to South Africa.

“He is very happy to visit. We had occasion to go over our relations and he goes back satisfied that our relations are on solid foundation,” Mnangagwa said after meeting Wang.

The Zimbabwean leader’s spokesperson, George Charamba, tweeted yesterday that “among projects discussed (by Mnangagwa and Wang) was the Batoka Hydro-Electric Project to be sponsored jointly with Zambia,” and to be executed by Sino-Hydro in partnership with General Electric.

“The project, once completed, will leave Zimbabwe in a power surplus position,” he said.

Zimbabwe is facing a crippling power deficit that is disrupting productivity despite imports of electricity from Eskom and Hydro-Cahora Bassa.

Zimbabwe is also understood to be pursuing currency back-up from China, as its monetary reforms falter through value losses on the back of waning confidence and little productive support for the local unit.

Wang said after meeting Mnangagwa that China understood the challenges that Zimbabwe – battling to turn around its economy since Mnangagwa elbowed out Mugabe in 2019 – was facing.

“China understands the current bottlenecks and difficulties faced by Zimbabwe, but we trust that Zimbabwe has the wisdom and capabilities to address well these challenges,” Wang said.

Chinese investment comes as other BRICS countries are also expanding investments in Zimbabwe, with Russia’s Alrosa signing agreements for a joint venture project to mine diamonds in the Chiadzwa area.

Russia also has a large platinum project at Darwendale, although the project appears to have been delayed in the past year because of shareholding disputes.

China has massive investments in Zimbabwe, including ferrochrome, electricity generation and infrastructure funding projects, such as the expansion of the Robert Gabriel Mugabe International Airport.

Women have made giant leaps on the path to reducing inequalities based on sex in the past century. However, severe inequalities nevertheless persist throughout the world, and they are especially noticeable in the context of access to assisted reproductive technology and fertility care services. Last month, a 31-year-old woman in the People’s Republic of China brought a lawsuit against a hospital that refused to provide her oocyte cryopreservation (“egg freezing”) services. Why was she denied? Only because she was unmarried.

Beijing Obstetrics and Gynecology Hospital — the target of Teresa Xu’s lawsuit — was not the first hospital to deny her services. Chinese government regulations prohibit the provision of egg-freezing services to unmarried women. Some hospitals reportedly go further and deny married women egg-freezing services if they do not have … their husband’s consent. They do not, however, prevent a single man from freezing his sperm.

Xu describes her experience with the hospital as being particularly upsetting. Not only did her doctor refuse to help her medically, but also offered a little personal advice, suggesting that she really should hurry up and get married and have a child then. That’s not the kind of advice that any ambitious, empowered woman wants to hear. In any country.

Xu decided to take action. Not surprisingly, the case openly challenging a hospital’s decision to comply with government regulations regarding fertility care for unmarried women is the first of its kind in the country.

Reproductive Rights Are Complex. Especially In China.

While a women’s right to continue a pregnancy or not still divides our country, reproductive rights have an even more complicated layer in China. Only a couple years ago –- in 2016 -– the Chinese government lifted the long-standing One Child Policy that had limited most families in the country to no more than one child. That policy lead to extremes, including forced abortion and an acute gender imbalance to the tune of 30 million more men than women. Now, the decision to lift the policy has resulted in a significant number of hopeful parents looking for reproductive services as they consider their family-building options.

Not everyone can have kids the old-fashioned way, though. And surrogacy is not permitted in China at all, which results in a huge demand for such services in other countries, including the United States. Similarly, as women like Xu are denied access to egg-freezing services, many seek out services in other countries to freeze their eggs. But the high costs, $10,000 to $20,000 or higher, are prohibitive for many.

Egg-Freezing Backlash

Egg-freezing providers have been under fire here in the United States for a concern they are overselling their promises to prospective patients. These type of concerns generally sound in the possibility that preservation gives a false sense of security to women who want to work hard on their careers now and have kids later.  One marketing slogan put a fine point on this controversy: “Focus on your career: Extend your fertility.” The promises may turn out fine for some people, but an absolute confidence in egg freezing would be misplaced. Egg freezing, like all assisted reproductive technology procedures, does not have a perfect success rate. The rate can in fact be surprisingly lower than participants might expect. While egg freezing does offer a chance of success at having a genetically linked child later in life, it could also deceive women into thinking that they will be fine having kids down the road, while the opportunity present in more fertile years pass by.

One of the more famous cases of egg-freezing disappointment is that of Bridgette Adams. In her late 30s, she was riding the wave of a successful career in the tech world. At the time, she even appeared on the cover of Bloomberg Business with the headline “Freeze Your Eggs, Free your career,” touting the decision to have her eggs frozen. She openly discussed her plans to focus on her career, for now, and find Mr. Right eventually, and then start a family when the timing was right.

As she approached 45, and Mr. Right had yet to come on the scene, Adams decided that it was time to go ahead and attempt to conceive with her frozen eggs. She had 11. The Washington Post article details what happened next: “Two eggs failed to survive the thawing process. Three more failed to fertilize. That left six embryos, of which five appeared to be abnormal.”

She was left with a single viable embryo. That embryo was transferred, but devastatingly for Adams, failed to produce a pregnancy. Adams still speaks publicly that she does not regret the decision to freeze her eggs. However, her story serves as a reminder that the procedure is not a guarantee.

Of course, even if the egg freezing doesn’t have a perfect success rate, and is being oversold by some, women like Xu obviously still deserve the opportunity to balance the risks and rewards and make the choice on their own.

What Will Xu’s Lawsuit Accomplish?

Legal commentators have criticized the lawsuit’s target as the hospital, which is only following the dictates of the one-party government, controlled by the Communist Party of China (CPC). They suggest that for that reason, Xu’s lawsuit is unlikely to find success.

But that’s only if you define success to mean ultimately winning the legal case. Others suggest that the national conversation and attention surrounding the issue may be success in itself. This case, and the public discussion surrounding the issues of inequality and access to fertility care, may be the catalyst needed for a reconsideration of the outdated and oppressive regulations. It’s at least a start.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Theme for the 2020 Legal Year:

“Transparency and Accountability”

Introduction

On Monday 13 January 2020 Chief Justice Luke Malaba delivered his speech for the official opening of the 2020 Legal Year in Harare while the Deputy Chief Justice (DCJ) Elizabeth Gwaunza was delivering a similar speech in Bulawayo emphasizing on the need for open justice and accountability on the part of judicial officers.  The theme for this year is “Judicial Transparency and Accountability”. It resonates well with last year’s theme of consolidating the rule of law. The purposes and objectives of the rule of law as a foundational value and principle cannot be achieved by the guarantee and application of the fundamental principle of judicial independence alone.

Whilst an independent Judiciary is the essence of the rule of law, it is the same Judiciary which is required to act in a transparent and accountable manner in the exercise of all judicial functions.

The Open Court Principle

The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media. Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law.” Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.

Transparency and Accountability

Chief Justice Malaba said Transparency and accountability foster within the public a sense of ownership and trust in government. The concepts reinforce the notion that judicial officers are employees of the people. Public decision-making processes ought to reflect the will of the people.It is for this reason that section 162 of the Constitution provides that judicial authority derives from the people of Zimbabwe. In that regard, citizens are major stakeholders in the business of the courts. He added the courts must therefore, from time to time, account to the citizens on how they are performing their functions.

In her address, the DCJ emphasised the importance of transparency and accountability of the judicial system. She mentioned that the independence of the Judiciary is crucial for the “public to have trust and confidence in the Judicial system”. She then went on to highlight the judiciary’s commitment to independence and how such independence is a “fundamental principle of constitutionalism and the foundation of the rule of law”.

Live Broadcast of Cases

In line with the Open court principle, Justice Malaba revealed that cases of public interest will now be broadcast live so as to provide the general populace access to the court proceedings. He said the broadcasting of court proceedings will also help bridge the information gap with very few people willing to attend the courts and in some cases unable to attend.

The Chief Justice said the move was intended to “foster public trust and confidence in the court system by debunking the myth that court proceedings are esoteric and that courts want to mask their decisions”.

The Chief Justice however noted that there would be “strict regulation” of the broadcasting process to protect the dignity of proceedings.

The DCJ also announced in Bulawayo the JSC’s wishes to have more cases which are of public interest to be broadcast live.  “This trajectory”, she says, “speaks to the Judiciary’s commitment to transparency and accountability”.

This is a positive move and the only thing that’s not clear yet is how the authorities will come to a decision on whether a case is deemed as being of national interest or not.

Performance Management

The Chief Justice announced that the JSC has introduced a performance measurement system for judicial officers and their courts. He said the JSC has set up a performance management and Training Committee headed by the DCJ and the terms of reference for the committee includes engaging judicial officers and stakeholders to come up with an acceptable and standardised performance measurement system for judges.

The DCJ in Bulawayo highlighted the need for  “courts to provide reasons for their decisions through writing and publishing judgments.”  She states the need to have reasoned judgments promotes fairness in the judicial systems. The DCJ then pointed out that “from a constitutional point of view, the provision of reasons is an important mechanism for making administrators accountable to the people they serve and for achieving a culture of justification.”

It has also been mentioned in the speeches that the Judiciary has put in safety nets that will ensure that judgments will be delivered without undue delay. Such safety nets can be found in the 2019 Magistrates Code of Ethics and the 2012 Code for Judges. The DCJ mentions that a system to measure judicial officers’ performance is under consideration as this is meant to “demystify the age old misconception that judicial independence is synonymous with unaccountability.”

Anti-corruption initiatives

The Chief Justice reported JSC has made progress in the setting up of specialised Anti-Corruption courts in the magistrates courts and in the High Court. He said the JSC has reached out to their Ugandan counterparts to seek assistance in the professional development of local judicial officers.  Uganda has been running specialised anti-corruption courts for the last ten years.

The Deputy Chief Justice urged the public to join in the fight against corruption and encouraged responsible forces such as the National Prosecuting Authority (“NPA”), the Zimbabwe Anti Corruption Commission(“ZACC”) and the Zimbabwe Republic Police (“ZRP”) to carry out thorough investigations prior to arrest in order to avoid  such accusations such as the “catch and release”.

Integrated Electronic Case Management system

The JSC is in the process of introducing an integrated electronic case management system that the Chief Justice believes affords “great potential to automate court services and proceedings as a way to make the administration of courts more efficient, transparent and accountable”. The CJ says the system will be elaborate and consist of the following exciting features intended to aid court administration and case management-

• Increased public access to information

The system will allow the public to find out the status of cases through electronic platforms viewable from public kiosks located in the registries of the courts. Those who are not computer literate will still get assistance from the court’s IT personnel to access the information they need electronically.

The DCJ reiterated the JSC’s commitment to transparency and accountability. The website will continue to disseminate information and be up to date with the activities of the JSC. The DCJ also mentioned commitment to improving the website.

• Reduction of case backlogs

The system will provide judicial officers with a dashboard meant to track the status of every case on the judicial officer’s cause list. It will provide information, such as analysis of the age of cases, deadlines and case stages that require court action. This information will give Judges a more precise picture of the status of their cases.

• Introduction of virtual court sittings

Virtual court sittings transform physical court hearings into automated trial fora. This will enable parties to make submissions to the Judge without the need of having to appear physically in the courtroom.

The e-filing component of the system will also enable litigants to file pleadings and other court documents electronically from anywhere in the country. The procedure will reduce the cost of litigation, as expenses such as travelling will be curtailed.

Open Day Concept

In line with the theme , the Judicial Service Commission (JSC) has put the open day as a permanent event on its calendar. Open days are days where departments in the Judicial Service Commission will answer questions from the members of the public and disseminate information relating to activities and operations of the various JSC departments. The JSC has set the 10th of June of each year as the Judicial Service Commission Day, a day during which members of the public and all stakeholders will be invited to visit court stations near their locations throughout the country to learn more about how the courts operate.

Infrastructure and Development Projects

The DCJ highlighted that both the Gwanda and Lupane construction of Magistrates Courts. The DCJ also acknowledged residents from places like Bulilima, Insiza, Umguza and Mangwe that have to travel long distances to gain access to justice. She mentioned that the JSC has made it a priority for the Commission to establish at least one resident court in each district in future.

Performance of the court and Conditions of Service

Overall, the CJ and DCJ gave a statistical account of the progress of the courts. The analysis showed how much backlog the relevant courts had, how many cases they received and how many they were able to discharge during the course of 2019. The data shows an improvement in how courts have managed to discharge and deal with cases efficiently. Conditions of service for members of staff are a sensitive area because a demotivated workforce will not produce desired results. Salaries of judicial officers remain divorced from the reality of the importance of the judicial functions they perform. Efforts to fight corruption must be complemented by awarding judicial officers and their support staff a living wage to prevent them from being tempted into accepting bribes or other undue considerations.

Looking Forward

The DCJ reminds us of the Constitutional requirement that this year, the Supreme Court and the Constitutional Court will formally separate. Further, she hopes the High Court Rules and Commercial Court rules will be gazetted this year.

The introduction of the open court system is a very welcome idea. Open court serves democracy as much as it serves justice. It allows citizens to review the outcomes of current laws and to advocate to their representatives when they believe certain laws need to be reformed. This is an essential feature of a flourishing democracy.

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

Post published in: Featured

Last week, the Wall Street Journal featured the story of Kevin Rosenberg (also covered here), a former attorney who did what every student loan debt slave thought was almost impossible — he convinced the bankruptcy court to discharge his student loans in full.

What’s amazing about Rosenberg’s story is that he did this on his own without the assistance of an attorney. I reached out to him, and he was kind enough to grant an interview where he explains what led to his decision to file bankruptcy and how he handled the adversary process on his own.

Please tell me about yourself and what you did after graduation.

While I was serving in the naval officer’s program, I was told that those who were leaving were expected to go to graduate school. Based on my interests and background, I thought that going to law school and being a lawyer would be the right fit for me. As an officer, I was used to preparing and processing paperwork. I also wanted to help people and make good money.

It turns out that after my first year of law school, I found out that as a lawyer, I will either help people or make good money. I also realized that I was not going to enjoy doing legal work so I considered doing something else. I applied for jobs in the business sector, but I was mostly ignored. And the few employers who contacted me said that they were surprised that I did not want to be a lawyer since they thought lawyers made large salaries. It was then I realized that my law school (and others) were not truthful about nonlegal employment opportunities for those with law degrees.

So after graduation, I pursued a number of business ventures. I was a street vendor in Brooklyn, was a real estate broker, and ran an outdoor-gear rental business.

In 2016, with the help of angel investors, I opened a retail shop. Initially, the business was profitable. But business slowed as more people were turning online to shop instead of going to brick-and-mortar stores. Due to continuing losses, I had to shut down the business in 2017.

To make things worse that year, I underwent back surgery and was in rehab for one year. During that time, I could not move or lift heavy objects. As a result I was unable to devote myself to my business, which was a contributing factor to the closure.

Sounds like you had ups and downs over the years. How did you handle your student loan payments during those times?

I was unable to pay the monthly payments under the standard monthly plan so I contacted the lenders to try to work out a payment plan that I can afford based on the circumstances. The various student loan servicers who handled my account pushed me to be on forbearance which meant I didn’t have to pay temporarily but the interest grew in the meantime. Later, they switched me to an income-based repayment plan.

The private lenders set up a payment plan where I started with a low amount per month which increased after every year. However, there were times I was unable to pay because I did not have the money and so I defaulted. The lenders then sued and got a judgment against me which later showed up on my credit report.

Basically, I paid what I could based on how much I made at the time. At one time, I was making good money and used a large portion of it to try to pay down the loans. But most of the time, I could only pay what I can afford after basic living expenses.

What made you consider bankruptcy?

Based on everything that has happened and thinking about the future, I concluded that there was no realistic way I could pay off my student loans in full. Also, since the judgment from the private loan lenders affected my credit, it would be near impossible to obtain a loan from a bank. This made it impossible to expand my business or refinance my existing loans.

What was your total student loan debt at the time of your bankruptcy?

In total about $400,000. $220,000 were federal loans and $180,000 were private loans.

Were you aware that the law makes it more difficult to discharge student loans compared to other debts?

I read that it was not easy to show undue hardship in order to discharge student loans in bankruptcy. Not only that, you have to start an adversary proceeding in the bankruptcy court which is similar to filing a lawsuit. This made my case more complicated than a typical bankruptcy filing.

Did you try to retain a bankruptcy attorney to represent you?

Yes, but the attorneys I talked to said that costs would be between $25,000 to $40,000, and I could not afford that.

Did the loan companies offer to settle?

I was able to settle my private student debts in full. However, Navient, the loan servicer for my federal loans, was not willing to budge. They would only suggest that I enter into an income-based repayment plan.

What made you decide to go to the bankruptcy court on your own?

I researched the Brunner test which sets out the elements that needs to be met to show undue hardship which will discharge the student loans in full. After researching, including reading the case law, I believed that I met the standard. Finally, I had nothing to lose at this point.

So tell me about the filing the petition and starting the adversary process.

I filed the Chapter 7 bankruptcy petition on March of 2018 and then started the adversary proceeding in June 2018. I was required to undergo the credit counseling seminar and then my case was assigned to a bankruptcy trustee.

I started the adversary proceeding by filing a complaint with the court using templates I found online. ECMC filed an answer and then discovery proceedings began.

Note: Some bankruptcy court websites have templates for filing an adversary complaint. For example, this is a template that can be used in the Middle District of Florida.

So what happened during the discovery process?

For nonlawyers, discovery is the process where each party gathers information from the other. I asked ECMC to provide me with copies of my entire payment history, all internal communications concerning my file, and copies of loan documents.

ECMC asked for copies of my tax returns, my financial information, and my employment history. I provided copies of all of them.

They also deposed me and I spoke with one of their employment experts.

The employment expert concluded that I could have taken a paralegal job, with some being paid over $100,000 per year. The problem was that those high-paying paralegal jobs required many years of experience and was in specialized fields such as mergers and acquisitions. There was no way I could have qualified for those jobs.

Has ECMC (or anyone else) done anything to make the adversary process difficult for you?  ECMC never turned over the documents/info I requested even after the judge ordered them to do so. They kept saying that those documents were from a prior party in interest, and I argued that if they now own the loan they need to be able to produce the documents. They gave me a data dump of around 150 pages that was basically in their company code and was practically undecipherable. From the beginning I tried to settle for an amount that I knew I could pay off in 10 years and they refused to budge.

So what led to the judge’s decision?

Over a year later, and a few months before the judge’s decision, she cancelled discovery. Both ECMC and I filed our summary judgment motions as there were no factual disputes. So I wrote the summary judgment motion arguing why I met the Brunner test: I cannot maintain a minimal standard of living based on current income and expenses, why my current financial condition is likely to persist for a significant portion of the repayment period, and that I made good faith efforts to repay.

So you must be happy with the judge’s decision?

I would say I feel more relieved than happy.

Are you ready in case ECMC appeals the decision?

I have not heard from ECMC about whether they will appeal. But since the decision was made public, I have been offered free representation by attorneys and advocacy groups in case they do. My research shows that the chances of reversal on appeal are very low, and I’m sure ECMC is aware that an affirmance from an appeals court will set future precedent.

In your opinion, do you think that most people can handle the adversary process on their own without an attorney? Yes, thanks to templates available online. It basically comes down to telling and proving your story and why you meet the requirements of the Brunner test. My pleadings are public but to make it easier for debtors representing themselves I’m happy to send them to a debtor’s advocacy group helping people like myself. That being said, I don’t consider myself a lawyer and my pleadings are far from perfect. I focused on telling my story in plain language and used case law that I found via Google, not Westlaw or Lexis, which I didn’t have access to. I’m sure my citation format was not up to law firm standards but it got the point across.

Student loan forgiveness is a sensitive and divisive topic. Is there anything you would like to say to those who think you should pay your debt in full?

I believe the judge made the fair and right decision based on my life struggles. I lived minimally. I rarely ate out, never traveled except for work and was living paycheck to paycheck. I was constantly behind on rent. I’m 46 and because of these loans, I am unlikely to have a long-term relationship. I am not asking for a handout, but instead a second chance. I don’t see why student loans have to be treated so harshly compared to other debts.

I chose bankruptcy because I had no other choice. I tried to work with the lenders but they gave me no other options. I am hoping that this ruling will force them to work with debtors instead of intimidating them.

I want to thank Kevin Rosenberg for sharing his story and I wish him well.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

A leading litigation-focused law firm is seeking a mid-level associate for the firm’s Boston, MA, office.

This is the perfect opportunity for a litigation associate with two (2) to five (5) years of experience with the litigation practice of a large firm to gain hands-on substantive experience in both domestic and cross-border disputes. The firm is known around the world for representing high profile clients in “bet the company” disputes.

If you currently feel “lost” within a large group of junior litigation associates all working on small pieces of large litigation matters and wish to gain more substantive experience, this may be the place for you. A high level of academic achievement from a leading US law school and admission to the Massachusetts bar is required.

To learn more, submit your resume or send a note to jobs@kinneyrecruiting.com.

Getting arrested right outside of your own disciplinary hearing is the definition of exiting the frying pan into the fire.

Yesterday, 2018 Lawyer of the Year Michael Avenatti appeared before the state bar to discuss the charge that he pilfered $840K from a client’s settlement funds for personal use. Little did he know when he headed out that he wouldn’t be returning home.

During a break, federal prosecutors had a quick chat with the Avenatti team and arrested him for violating the terms of his release. The Daily Beast reports that an Avenatti attorney said that the arrest stemmed from an unrelated criminal matter in Santa Ana but declined to provide details. Quoting a separate Avenatti lawyer, Fox News reports that Avenatti will have a bail hearing at 2 pm Pacific today.

Avenatti, who appeared on Above the Law’s podcast last year, has had a wild couple of years from storming to prominence representing a porn star clashing with Trump to flirting with a White House run himself to facing multiple federal criminal charges to this — and that’s not even counting some of the stuff along the way.

We’ll learn more this afternoon.

Michael Avenatti Arrested by Feds at California State Bar Hearing [Daily Beast]
Avenatti arrested by IRS agents during California Bar Association hearing [Fox News]

Earlier: Michael Avenatti Charged With… A Whole Bunch Of Stuff Out Of Multiple USAOs
Michael Avenatti Charged With… A Whole Bunch MORE Stuff
Above The Law’s 2018 Lawyer Of The Year Contest: The Winner!
The ATL Michael Avenatti Interview

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.