So far no companies issued with Generald Notices by the Minister of Indigenisation, Savior Kasukuwere, to indigenize have challenged them in court, maybe for fear of being labeled as rebels and risking treatment similar to Nestle which was targeted with demonstrations.
But now Kent Law Lecturer, Alex Magaisa, has produced a legal opinion which backs those, including the MDC, who say the Indigenisation’s new General Notice in the Government Gazette to businesses in the Finance, Tourism, Education and Sport, Arts, Entertainment and Culture, Engineering and Construction, Energy, Services, Telecommunications, Transport and Motor Industry Sectors to indigenise their entities with one year is unlawful and unconstitutional.
The Minister of Finance, Tendai Biti, has denounced the regulations and the Reserve Bank of Zimbabwe (RBZ) Governor Gideon Gono has labeled Kasukuwere and his chairman of the National Indigenisation and Economic Empowerment Board, David Chapfika as unsuitable to be allowed anywhere near the banking sector because of their association with failed banks.
In the opinion published on constitution blog, Magaisa said General Notice 280/2012 was ultra vires the enabling legislation, had the implication of causing the expropriation of private property without complying with the requirements for compensation under Section 16 of the Constitution, violated the Constitution which prescribes requirements for the protection of the law, potentially violates Section 21 of the Constitution which prohibits compulsion to associate with other persons.
“Forcing a person to associate with the state or any other person violates the person’s right to freedom of association,” he wrote adding that the notice also potentially violates Section 23 of the Constitution which prohibits unfair discrimination.
“While affirmative action is permitted, measures taken must be fair and reasonably justifiable in a democratic society,” he wrote, adding that the notice was vague, uncertain and unclear in its scope of application which made compliance very difficult. Read the Full Opinion Here.