Is Jonathan Moyo part of a parallel govt?
HARARE – Jonathan Moyo makes the point that the Zimplats Indigenisation Implementation Plan (ZIIP) has not been completed and, therefore, it is premature for any discussion as to the merits or demerits of the underlying transaction to meaningfully take place.
This position is supported by the chairman of the National Indigenisation and Economic Empowerment Board (Nieeb), Mike Nyambuya, who in an interview published in the Herald of February 21, 2013, stated: “Let me start by giving clarity on the Term Theet signed between Zimplats and indigenous partners.
“The term sheet provides for general principles on the Zimplats indigenisation implementation plan and is not legally binding. The terms and conditions therein are not definitive. Neither party therefore is bound by these terms.”
It is common cause that a Term Sheet with 16 pages was signed on January 11, 2013.
Moyo who is neither a director nor an officer of the Nieeb let alone a member of the executive branch of the Government of Zimbabwe had this to say: “Firstly, there has been a pervasive and gross lie deliberately told through some gullible sections of the media whose import has been to give the false and thus misleading impression that the Zimplats indigenisation transaction is a done deal which has been finalised and completed. This is far from the actual truth.”
Any casual observer in the matter would be entitled to ask the basis of the authority and capacity of Moyo to make the above statement.
How would Moyo as a member of the legislature get to know what is false or true in respect of facts that can only be privy to the signatories of the said Term Sheet?
Could Moyo be part of a parallel government structure?
Could he be working secretly for the Nieeb?
If not, what interest would inform this kind of spirited defence?
Whether the information ventilated in the public domain about the Zimplats is false or not should not be of concern to Moyo precisely because his version is that a Terms Sheet has no legal consequences as it can be varied by the contracting parties before conclusion.
The mere fact that Moyo authoritatively states that he is fixed with knowledge that the Zimplats transaction has not been finalised and completed should be an issue of major concern to the Nieeb board who are custodians of the institution and yet Nyambuya does not deal with this material issue in his interview.
The authority to represent Nieeb is vested in the board of directors and at the very least, one would have expected Nyambuya to reprimand Moyo from assuming powers that the Act and Constitution of Zimbabwe do not support.
Although it is appreciated that Moyo is a political animal, it is not apparent why he would behave in the manner in which he has chosen to — unless he is some kind of “hired gun”.
Naturally mercenaries are not guided by principles and values but by cash that flows.
This would lead any rational observer to attempt to locate the fault lines in the transaction with a view to establishing possible angles that would allow the fees from the deal to flow to all possible actors including the few that may see danger in transparency.
Against a backdrop of a dispute confirmed by the chairman of Nieeb in respect of the true meaning of a Term Sheet and the implications that would arise from its signing, it is important to define the term so that lay people can better appreciate the issues at hand.
A Term Sheet is defined as a bullet-point document setting out the material terms and conditions of a business agreement.
This sheet that has been signed is not just an ordinary Term Sheet but a direct consequence of the application of a law i.e. the Indigenisation and Economic Empowerment Act (the Act).
In terms of the Act whose true interpretation is often clouded in mystery, it would appear the transfer of shares to indigenous persons would mirror the experience of the land reform programme in which the beneficiaries of land were never subjected to Term Sheet and complicated terms like “vendor financing” as if to suggest the indigenous people through the ministry have the necessary financial competency to enter into such contracts.
It is normal that after a Term Sheet has been “executed”, lawyers would then prepare final agreements. It is a guide and normally the terms agreed to; are unlikely to change.
A Term Sheet then implies the critical terms of the known transaction that according to the political propaganda machinery should result in 51 percent of the issued share capital in the target company being transferred to indigenous persons as defined in the Act for no consideration.
Although a Term Sheet is similar to a letter of intent, it lists the deal terms in bullet point and this has been done lest surprises spring in — that were not anticipated.
Now that the public knows the bullet points, it cannot be argued that the bullets are created by enemies of the revolution but the signatories to the Term Sheet must speak for themselves.
It would be obvious from Mike Nyambuya that the engagement of Brainworks Capital predates the signing of the Term Sheet.
Accordingly, to Nyambuya, the letter of engagement was signed on June 8, 2012 prior to his appointment as a director and chairman of the Nieeb.
The question that then arises is how Nyambuya who was not part of the governance of the Nieeb can be so eloquent in defending matters that he has no personal knowledge of.
The question that both Nyambuya and Moyo seem to avoid responding to relates to the appointment of Brainworks, services rendered and remuneration issues.
Moyo who exposes that he is an insider in this matter, states as follows: “Page 1 of the Term Sheet which has 16 pages and which was signed on January 11, 2013 clearly and unambiguously states that, “The terms and conditions set out in this term sheet in respect of the Zimplats IP (Indigenisation Implementation Plan) are non-binding and are subject to definitive legal documentation in respect of the transactions forming part of Zimplats transaction”.
How did Moyo who is evidently not a party to the Term Sheet obtain a copy of this agreement that ordinarily should be private and confidential?
If he has this document, how many other documents of government are in his possession?
Who would have an interest in giving these documents to a member of the legislature?
If regard is taken into account as to the correct function of a legislator, then one has to be concerned about the constitutional health of Zimbabwe and the circumstances that would allow a legislator to defend the actions of the executive in this clumsy manner.
Surely, Moyo’s interests should be aligned with the people he represents in Parliament who would no doubt also want to know the true nature of this deal to be disclosed in the public interest.
However, in this transaction as in many, Moyo who is no longer in the executive continues to behave in an unconstitutional manner validating the concerns of Zimbabwe’s partners that the rule of law must be restored before sanctions are lifted.
Moyo must show the lead and yet his footprints are all over this transaction without good cause.
Perhaps he may have a public relations contract with the government that he has not yet disclosed.
The fact that he sings from the same hymn as Nyambuya must also be of concern.
Moyo then authoritatively states as follows: “Paragraph 22 of the Term Sheet clearly provides that “In addition to any other conditions set out in this Term Sheet, the Zimplats IIP, including each of the transactions forming part thereof, is, subject to waiver at the discretion of Zimplats Holdings, subject to the fulfilment of the following conditions precedent by June 30, 2013 or such other date as the key participants may agree upon in writing” confirming his intimate knowledge of the transaction.
He then states: “The key participants shall use their reasonable endeavours to fulfil these conditions precedent by June 30, 2013. However, should regulatory authorities or other processes necessitate an extension beyond June 30, 2013; the key participants agree that the said date shall be extended to a date agreed by the key participants to accommodate such regulatory process” without explaining how he got this privileged information.
He then concludes by saying: “It is therefore quite clear that all the talk which claims or gives the impression that a deal has been finalised is false and nonsensical with no empirical or documented support whatsoever.”
“So far, there is only a non-binding Term Sheet pending the finalisation of substantive agreements such as a Shareholder’s Agreement which is yet to be concluded.”
Who benefits from exposing transactional details to a party whose interests in the deal is not obvious and transparent?
Moyo’s knee-jerk reaction undermines the integrity of a signature programme that his party wishes to seek a sixth term on.
He may very well be the architect of “bhora musango” as his actions confirm that Zimbabwe is operating as a “banana republic”.
No country that respects the rule of law would allow this kind of thuggish behaviour. This is the second of a four part series on the Nieebgate Scandal which was unearthed by the Daily News.