MDC Media and Diplomatic Briefing ahead of the 21st Meeting of SADC – The Zimbabwean

The MDC urges the SADC Organ on Politics, Defense and Security to take note of the deteriorating situation in Zimbabwe as a threat to peace and security in the region and take proactive steps to avert further deterioration and catastrophe. The resolution of the Zimbabwean crisis has become urgent in the context of an economic meltdown, rising citizen discontent and lack of elite cohesion within Zanu PF.

The Nature of the Zimbabwean Crisis

Zimbabwe remains trapped in a multi-layered structural crisis. The change of guard in November 2017 presented a window of opportunity for Zimbabwe to begin rebuilding following decades of economic meltdown, political instability and international isolation. Sadly, the opportunity has been squandered and Zimbabwe has further regressed politically, economically and socially. The military coup of November 2017 undoubtedly raised legitimacy questions that Zimbabweans and the international community had hoped would be cured by a free and fair election.

Nevertheless, 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. As concluded by the various international observer missions including the European Union Observer Mission, the National Democratic Institute (NDI) / International Republic Institute (IRI) Observer Mission, the Commonwealth Observer Mission among others, the elections failed the credibility test.

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 where seven unarmed protestors were shot dead by the military.

This flawed electoral process perpetuated the legitimacy crisis and is manifesting in the current socio-economic situation and a deteriorating human rights situation.

Socio-Economic Outlook

Zimbabweans are grappling with serious socio-economic problems including excessive power cuts of 18hrs a day, water rationing, shortages of basic commodities such as fuel and bread, collapse of social services including health and education, skyrocketing prices and high inflation that has doubled to 175% and poverty as evidenced by a staggering 83% of Zimbabweans living below the poverty datum line on less than US$ 0.35 per day. Corruption and patronage is rampant in state institutions as recently corroborated by the Auditor General’s report.

The knee-jerk outlaw of the multi-currency system though SI142 has further worsened the situation. The policy was prematurely pronounced in the absence of requisite macroeconomic fundamentals to support a sovereign currency including a trade surplus, at least 6 months import cover, a healthy capital account, productivity and high capacity utilization, single-digit inflation, the building of confidence and a realistic exchange rate. In the absence of these fundamentals, the policy has resulted in continued increases of prices and inflation, shortages and a high possibility that government will resort to the printing of money to cover its obligations, resulting in a debauched currency.

Human Rights and the Closing Democratic Space

The human rights situation in Zimbabwe is fast deteriorating and there is growing evidence of rising authoritarianism. A record-breaking 21 opposition and  Civil Society leaders including Parliamentarians and labour leaders face trumped-up and serious charges of subversion. Such persecution by the state is an abrogation of constitutionally guaranteed rights to freedom of expression, freedom of association, freedom of assembly and to free political activity. A few days ago, the labour leaders received anonymous letters with bullets in a clear move meant to intimidate the labour movement against exercising their right to demonstrate and petition as codified in Section 59 of the Constitution of Zimbabwe.

The MDC is also worried by the high levels of Impunity where perpetrators of human rights abuses are not held to account. The perpetrators of August 1 killings, where a total of 7 unarmed civilians were shot dead by the military have not been brought to book despite recommendations of the Motlanthe Commission.

Similarly, the security forces responsible for the 17 extra-judiciary killings and several sexually related violations among other violations of the January 2019 clampdown were not held to account.

At the center of these human rights violations are security forces, especially the military. Section 210 of the Constitution provides for an Independent Complaints Mechanism where citizens can get recourse in the event of violations by security forces. This vital organ will go a long way in dealing with militarisation and unaccountable security service and yet it has not been set up.

Derailed Reform Agenda

The Constitution of 2013 provided the basis of a new social contract and the beginning of a comprehensive reform agenda to address the structural challenges Zimbabwe faces. Nevertheless, non-implementation of the Constitution is blocking Zimbabwe’s democratic and developmental advance. Despite framing itself as a ‘new dispensation’, the current regime has paid lip service to the reform agenda.

The recent appointment of Utoile Silaigwana as ZEC Chief Elections Officer indicates the consolidation of militarization, further compromising the credibility and independence of ZEC and an indictment on Zanu PF’s sincerity to reform. Silaigwana was at the center of previous sham elections, including the 2008 elections. Zanu PF further continues to abuse state resources during elections. A recent letter from the Minister of Health and Child Care (see attached letter) directing the Permanent Secretary to supply medicines to hospitals and clinics in the Lupane constituency ahead of a by-election is evidence of the Zanu PF’sintransigence.

Similarly, the appointment of Justice Matanda-Moyo, wife to the Minister of Foreign Affairs and International Trade as Chairperson of the Anti-Corruption Commission is a clear sign that Zanu PF is not ready to reform.

The MDC has also noted the disappointing moves by the regime in simply changing the names of restrictive laws such as the Access to Information and Protection of Privacy Act (AIPPA) and the Public Order and Security Act (POSA), without changing the content, character and objective of these laws. The Constitution guarantees freedom of the media, freedom of expression, freedom of assembly and freedom of association.

The gazetted Maintenance of Peace and Order Bill is a replica of POSA as it retains the vast majority of provisions in the latter including the continued ‘sanctioning’ of public gatherings by the police and the use of force to disperse crowds. Similarly, the recently gazetted Freedom of Information Bill as part of the four bills that will replace AIPPA fails to give effect to the letter and spirit of the right to information as enshrined in Section 62 of the Constitution of Zimbabwe. The Bill has striking similarities with the repealed AIPPA including a host of limitations to the right to information such as the limitation on information pertaining to government borrowing. The Bill is also not in line with an international best practice including the African Union Model Law on Access to Information.

Defining a new course for Zimbabwe

The MDC recently launched its Road to Economic Recovery, Legitimacy and Democracy (RELOAD), a document that seeks to chart a way forward for Zimbabwe. Due to the political underpinnings of the crisis, the MDC equally proposes a political solution. The MDC Reload is anchored on the following five critical steps:

1Pressure: Advocacy and mobilisation of all progressive and democratic forces to build national consensus

2National Dialogue: The dialogue must be credible, bankable, legitimate and guaranteed by the international community with specific deliverables, benchmarks and timelines through a mutually agreed and acceptable facilitator

3National Transitional Mechanism: Agreement on an implementation framework on agreed positions

4Comprehensive Reform Agenda: The implementation and rolling out of a comprehensive agenda for reform anchored on the return to legitimacy, agreement on a comprehensive reform platform and agenda, resolution of the economic and humanitarian crisis, resolution on the agenda for nation-building, national healing and the resolution of the social contract and international re-engagement and ending Zimbabwe’s international isolation

5Free and Fair Elections: Zimbabwe must hold free, fair, legitimate, credible and sound elections under international supervision, pursuant to the comprehensive reform agenda.

Gladys Hlatywayo

Secretary for International Relations

Movement for Democratic Change

In Legal Terms, Martin Shkreli Is Still Guilty AF

The Second Circuit Court of Appeals would like The Shkrelster to just finish up that prison sentence in silence.

AARP Foundation files class action suit against Yale University over employee wellness program – MedCity News

The AARP Foundation has filed a class action on behalf of Yale University employees over requirements around the school’s Health Expectation wellness program.

The complaint alleges that Yale’s employee wellness program, which involves workers undergoing certain medical examinations and divulging health info and medical claims data is a violation of the American with Disabilities Act and the Genetic Nondiscrimination Act.

A spokesperson from Yale declined to comment on the pending litigation.

Employees who decline to participate in the program are required to pay a fine of up to $1,300 a year in $25 weekly increments.

While the laws allow for the sharing of data voluntarily, the complaint says that the steep penalties associated with not taking part in the wellness program mean that employees are forced to participate and unduly share their private health information.

“The weekly penalty imposed by Yale has a coercive effect on its employees, forcing them to either pay a fine to protect their civil rights or participate in a wellness program against their will. That is a violation of the ADA and GINA,” the complaint states.

Another segment of the class action points to Yale’s use of third party data companies which help to administer the wellness program and link members with health coaches using health claims information.

“The claims migration process reveals and jeopardizes the privacy of sensitive information about employees’ and their spouses’ medical histories, including the manifestation of a disease or disorder—information protected under the ADA and GINA,” the complaint states.

The complaint relates the stories of multiple workers who found the potential penalties as burdensome to their livelihoods or who found the wellness program invasive to their privacy, including one woman who was forced to explain her mastectomy to multiple people to avoid the fines.

AARP previously sued the Equal Employment Opportunity Commission in 2016 in a similar case arguing that the agency – which helps regulate wellness programs – over rules allowing for the implementation of financial rewards in exchange for the sharing of personal health information in “voluntary” wellness programs.

Photo: Chris Ryan, Getty Images

10 Tips For Responding to A D&O Insurance Denial Letter

This article is excerpted from the August 2014 Edition of Financier Worldwide and was reprinted with permission from the author. You can also find the full article here.

A director or officer being sued or investigated for allegations of mismanagement is facing one of his or her worst nightmares. Their reputation is at stake, and because a director’s or officer’s liability is a personal liability, such a claim can be a financial nightmare as well. The situation is made all the worse when a director receives notification that their D&O insurer might be denying coverage. But all is not lost – a director can still take control in this situation. Ty Sagalow, President of Innovation Insurance Group LLC, offers these top ten tips to follow when facing a D&O insurance denial letter.

Step 1: Don’t panic

If you have been sued or investigated as a director or officer, your company’s D&O carrier has sent a coverage analysis letter back to the company’s risk manager or general counsel. Get the letter and if the letter is denying or reserving rights on coverage, know this response is not all that uncommon. Usually  there  is  nothing  to   fear.

Step 2: Know that not every denial letter is a real denial letter

The most common response from a D&O carrier is a ‘reservations of rights’ letter. This letter will generally indicate that coverage is initially being provided under your policy but that such coverage may be removed in the future if certain things occur. While this sounds scary, in most instances it is nothing to lose sleep over. It is best to consult with an expert on the exact wording of your policy (see Step 5).

Step 3: Look at your other insurance policies

It is not uncommon for a D&O carrier to either deny coverage or reserve its rights on coverage because there might be another insurance policy that should be the policy to cover the claim. Common clauses pointing the finger at other insurance policies include: bodily injury/property damage (go to General Liability policy), pollution (go to environmental policy), ERISA (go to Fiduciary Liability policy) and, a bit more problematic, the general ‘Other Insurance’ clause. Of course, at this point, it might be a good idea to actually read the policy.

Step 4: Read the policy

While we always recommend reading the insurance policy before there is a claim, if this hasn’t occurred, it is a good idea to do so now. This also might be a good time to read the company’s by-laws on director indemnification and obtain a commitment from the general counsel that your legal fees, settlements and adverse judgments will be paid by the company, especially in the event the D&O insurer doesn’t pick up the tab.

Step 5: Talk with an independent industry expert that you hire

It is best to personally retain an insurance expert to review your situation. Preferably the individual should be someone with a D&O insurance carrier background, whether in underwriting or claims. Remember, your company’s fundamental obligation is to its own interests rather than yours, so don’t be afraid to hire your own expert.

For tips 6 – 10, be sure to check out our full article here.

Ty Sagalow is the former Chief Underwriting Officer for one of the world’s largest D&O insurance companies and is currently president of Innovation Insurance Group, LLC, an insurance consultant. He can be contacted at (212) 909-2244 or via email: tysagalow@innovationinsurance group.com.

Biglaw Firm Getting Busy Opening New Offices

Eversheds Sutherland is heating up its U.S. expansion. As you may recall, in 2017, the United Kingdom-based Eversheds merged with the Atlanta-based Sutherland, Asbill & Brennan, and expansion has been on the combined firm’s mind since then.

In May, Eversheds Sutherland opened up a Chicago office. The location was started by a pair of lateral real estate partners — Marc Benjamin from White & Case and Susan Kai from Kirkland & Ellis — and litigation partner Robert Owen who relocated to Chicago from New York. The firm has over 100 clients in the midwest, including Texaco and Mondolez, and as reported by Law.com, the firm intends the office to be a point of focus:

“We needed to be physically on the ground in Chicago,” [Eversheds Sutherland’s co-CEO Mark Wasserman] said. “We plan for it to become a significant focal point for us.”

But that’s not the only location the firm is building out. Yesterday, the firm announced they were opening a San Diego outpost, led by a trio of intellectual property partners —  Jose Patino, Nicola Pisano, and Christopher Bolten — they picked up from Foley & Lardner. And, as reported by Law.com, the firm believes that office is ripe to grow even bigger:

Adding the IP group in San Diego “is part of our strategy for U.S. growth,” Wasserman said, adding that he expects additional lawyers and staff from Foley & Lardner to join the trio at Eversheds.

Eversheds is also talking to lawyers with corporate, litigation or tax practices in San Diego, he said. “We think there are other opportunities.”

This bumps the number of U.S. offices up to eight, but don’t think that’s the end of the firm’s American invasion:

In the United States, Eversheds is “very interested” in growing in California, Wasserman said, adding that the firm is also talking to lawyers in Los Angeles and San Francisco.

“We would be happy to add this group wherever they were located,” he said of the Foley & Lardner partners. “And it’s a perfect opportunity to get more of a foothold in California.”

Eversheds also will continue adding lawyers to its existing offices in Texas, New York and Chicago, Wasserman said. “We’re talking to a lot of people in New York, and I expect we will be adding other people in Chicago as well over the next few months.”

It looks like the firm has picked the right time for this growth push — revenue was up 10 percent in 2018. If they keep on adding partners, their revenue is bound to see another upward tick in 2019.


headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Thomson Reuters Acquires Legal Collaboration Platform HighQ | LawSites

Thomson Reuters said today that it has acquired HighQ, a London-based enterprise collaboration and file-sharing platform for the legal industry.

HighQ has more than 400 customers, including more than half of the Global 100 largest law firms, TR said in announcing the acquisition.

It was just a year ago that HighQ announced an acquisition of its own, that of Legal Anywhere, also a mobile enterprise collaboration and file-sharing platform.

Thomson Reuters said this acquisition will expand on its strategic objective to provide more cloud-based software offerings and will meet a growing market need for legal professionals, aligning with Thomson Reuters focus on legal, tax, compliance and risk.

“Legal professionals are being disrupted by technology change and are seeking software solutions to help them improve costs and increase productivity,” said Brian Peccarelli, COO, customer markets at Thomson Reuters and head of its Legal Professionals segment. “The acquisition of HighQ will help us meet customer needs for efficient, compliant workflow collaboration solutions, and supports our ongoing approach to providing open technologies and driving customer innovation.”

Financial terms of the transaction were not disclosed.

Well, Alaska Appears To Be On Fire, Legally Speaking

I could have also gone with a picture of a salmon. (File Image)

I don’t know much about Alaska. I imagine it’s a cold place filled with bears and white people who go out to hunt for fresh oil on the weekends.

But I do moderately understand how laws are supposed to work, and I think that knowledge makes me more qualified to be Governor of Alaska than the current Governor of Alaska, Mike Dunleavy. I’m sure I could learn what to do when my dog-sled team leader pulls a hamstring on my way to work. Dunleavy seems incapable of learning what to do when his state legislature objects to his policies.

Governor Dunleavy has been sued three times THIS WEEK, over his attempts to slash-and-burn the Alaskan state budget, line-by-line. From Courthouse News:

An unprecedented call by Dunleavy for the Legislature to meet in special session outside the state capital ended with a split of 22 legislators meeting in Wasilla and 38 in Juneau, quashing any attempts at reaching 45 votes needed to override the vetoes. That action produced the Tuesday lawsuit from the Alaska Legislative Council…

The Alaska chapter of the American Civil Liberties Union filed the most recent lawsuit Wednesday in Anchorage Superior Court, claiming one of Dunleavy’s 182 line-item vetoes is an unconstitutional and retaliatory move against the state’s court system.

The ACLU seeks injunctive relief to reverse the $344,700 cut to the Alaska Court System by declaring it illegal under state law and a threat to the separation of powers…

And on Monday, Anchorage attorneys Kevin McCoy and Mary Geddes sought to invalidate Dunleavy’s choice of Wasilla as the location for the special legislative session, and the implementation of his 182 line-item vetoes.

“No previous governor has ever called the Legislature into a special session outside of the capitol,” that complaint states. McCoy and Geddes say that in doing so Dunleavy improperly intruded on the independence of the Legislature.

Here’s the complaint objecting to the Wasilla location, here’s the complaint objecting to the attempt to stop the veto vote, and here’s the complaint over Dunleavy’s retaliatory budget cuts aimed at the courts.

And that’s just the law; on policy, Dunleavy’s line item cuts include:

  • a 41% cut in funding ($155 million) to the University of Alaska; University of Alaska President Jim Johnsen said that would cut 1,300 jobs;
  • a 30% cut to Health and Social Services, including a $271 million cut (40%) to Medicaid;
  • a 25% cut ($334 million) to K-12 schools;
  • a 38% cut to the Department of Transportation ($97 million);
  • a 100% cut to public radio broadcasting ($2 million).

Look, if you ask me, line-item vetos are bad and unconstitutional to begin with, and I’ve thought that since back when Bill Clinton was asking for one. Here, it appears that Dunleavy is making all these cuts to preserve a campaign promise, increasing the oil dividend provided to each Alaskan from $1,600 to $3,000 per person.

Yeah, I just learned that each Alaskan gets an oil handout from the government. See, I can do this job. Unlike Dunleavy, I’m willing to study up about things I don’t understand.

Alaska in Turmoil Over Slash-and-Burn Budget [Courthouse News Service]


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

California Bar Likely To Get Higher Lawyer Fee Approved, But Also Face Greater Oversight

(Image via Getty)

The State Bar of California is poised to secure legislative approval for a substantial hike in the annual fee lawyers must pay the agency, but it will be paired with plans for greater oversight of the bar in the years ahead.

The legislation funding the bar in 2020 will bump the overall fee for active lawyers to $544, a 27 percent increase from the $430 in place now. (Attorneys will still be able to deduct $47 from the total if desired).

Though far lower than the $860 overall fee bar leaders suggested earlier in the year, the new amount will be the first fee hike in roughly two decades if approved by the Legislature.

The bar has said a fee increase is needed to allow the agency to address growing budget deficits and pursue necessary initiatives, such as technology upgrades.

However, bar officials had also wanted to transition to receiving fee approval from the Legislature for multiple years, rather than just one.

The state auditor backed this proposal in a report issued in recent months, saying that the bar’s “lack of consistent revenue makes implementing long‑term projects, such as replacing its aging technology systems, riskier because it has no guarantee that funding for these types of projects will continue.”

Lawmakers have not yet embraced the suggestion.

Instead, the bar legislation recently amended by the California Assembly states an intent to transition the bar to the state’s annual budget process by the 2021-2022 fiscal year.

An Assembly Judiciary Committee analysis of the bar bill, SB 176, said the current bar budget process limits legislative oversight. The bar submits its budget to the Legislature’s Judiciary Committees, which then set the annual fee amount, but the bar’s proposed expenditures are not examined closely as those put forward by other state agencies.

“This has allowed for some less than optimal oversight of some very significant decisions that impact the bar’s ability to protect the public and the fees its licensees must pay in order to fund those decisions, such as the decisions to purchase a $75 million building in Los Angeles, leave multiple floors of its San Francisco building vacant for decades, and approve expensive technology system,” the Assembly Judiciary Committee report said.

The Assembly report also highlights that the Legislative Analyst’s Office reviews all government spending as part of the annual budget process, but only reviewed the bar’s budget this year as a result of such a requirement being included in the bar’s funding legislation for 2019.

The Legislative Analyst’s Office said in a recent report that making the bar part of the state budget process “could increase legislative oversight by leveraging the expertise of the budgetary committees to evaluate State Bar funding requests in a manner similar to other state departments.”

“Additionally, requiring the State Bar to submit budgetary information in a manner similar to other state departments would enable easier comparison to ensure standardized or similar treatment across the various departments responsible for licensing professions,” the analyst’s office said.

The Assembly’s recent updates to the bar bill came a few days after the California Lawyers Association, which has roughly 100,000 members, added its voice to the debate.

In a letter to the chairs of the Legislature’s Judiciary Committees, CLA urged lawmakers to take a cautious approach to the issue of a bar fee increase.

The CLA also said any increased licensing fee for 2020 should be subject to further evaluation next year.

“Thus, if there is to be an increase in the licensing fee for 2020, there should also be some associated performance standards, measurements, or benchmarks included in this bill, along with a required accountability report from the State Bar addressing planned and actual spending,” CLA President Heather L. Rosing wrote in the letter. “This report could be used to assist in evaluating the impact of any fee increase authorized for 2020 and potentially provide justification for an adjustment to the amount of the licensing fee in 2021.”


Lyle Moran is a freelance writer in San Diego who handles both journalism and content writing projects. He previously reported for the Los Angeles Daily Journal, San Diego Daily Transcript, Associated Press, and Lowell Sun. He can be reached at lmoransun@gmail.com and found on Twitter @lylemoran.