Mar 14, 2020 RADICAL REFORMS TO ZIMBABWE’S INVESTMENT LAWS. WILL THIS CHARM THE WORLD?
Contributors: R F Mushoriwa, Farai Chinyama & Benson Tshevo
For years there have been calls to simplify the process of investing in Zimbabwe and to cut the red tape which accounted for the still birth of many proposed investment projects in Zimbabwe, and in some cases, saw investment projects being suspended or even terminated. The genesis of the problems in the investment law architecture were evidently of a policy nature and the government has in recent times promised to bring harmony to this critical economic area. On the 06th February 2020, The Zimbabwe Investment Development Agency Act, (hereinafter ZIDA or the Act) was signed into law and collapses several standalone institutions into one entity known as ZIDA. The Act is designed to harmonise all domestic laws with bearing on investments, which will promote, protect and facilitate investment into Zimbabwe. Its promulgation has been described amongst other things as, ‘signifying a new chapter in how the country has advanced in the ease of doing business’, ‘a cause for celebration’. It aims to, ‘… provide for the promotion, entry, protection and facilitation of investment; to provide for the establishment of the Zimbabwe Investment and Development Agency; to provide for the One Stop Investment Services Centre; to repeal the Zimbabwe Investment Authority Act [Chapter 14:30], the Special Economic Zones Act [Chapter 14:34] and the Joint Ventures Act [Chapter 22:22]; and to provide for matters incidental to or connected to the foregoing’
Provisions of the repealed entities, which used to deal with investors separately, will be incorporated under one roof in ZIDA, and this will lessen the burden on investors and make it much easier for them to register their businesses and start operations. ZIDA appears to be part of the attempted grand shift from isolationist policies towards global integration, a charm offensive as it were to show global capital that it will be safe and properly processed should it seek a home in Zimbabwe. It is meant to attract foreign direct investment, the benefits of which are innumerable. Some of the benefits being chased by the new law include, stimulation of the economy, simplification of international trade, development of human capital, resource transfer, reduced disparity between revenues and costs, increased productivity, increase in revenue and tax incentives.
This article discusses the new law, the differences it brings from the old set of laws in replaces, and the prospects of improvement to investment in Zimbabwe as a result of the implementation of measures contained therein.
BACKGROUND: THE LAW BEFORE ZIDA
Prior to the enactment of the act, there were three main pieces of legislation which governed inward bound investment in Zimbabwe depending with the nature of the prospective investment proposed. These were, the Zimbabwe Investment Authority Act [Chapter 14:30], the Special Economic Zones Act [Chapter 14:34] and the Joint Venture Act [Chapter 22:22]. The Joint Venture Act essentially dealt with Private Public Partnerships also known as PPPs, between the contracting authorities and the private companies which undertakes the financing and construction of the infrastructure projects with a view to hand it over to the contracting authority after completion. The contracting authority would then reimburse the private company the total investment of the project at an agreed rate.
The now repealed Special Economic Zones Act, specifically governed investment in all Special Economic Zones. The Special Economic Zones Board was responsible for issuing of licenses to investors interested in investing in special economic zones. The act established a special economic zones board charged with the administration and licensing of investors interested in investing in such designated economic zones.
The Zimbabwe Investment Authority Act generally governed the protection and promotion of investment strategies that are aimed at attracting investment in this country. The object of the act was to create a one stop shop with all the relevant information necessary to attract prospective investors.
What used to happen was that a potential investor required regulatory approvals from all these bodies which were housed separately and in many respects, one approval needed to be preceded by another and progress on approvals was generally slow.
ZIDA: A GENERAL OVERVIEW
The Act provides for the establishment of an agency known as ZIDA, which shall be a statutory body with capacity to sue and be sued. Section 4 then provides for the core functions of the agency. Its functions are, among others, the following; to promote, plan and implement investment promotion strategies for encouraging investment by domestic and foreign investors and to promote the decentralization of investment activities. The Act specifies that the Agency shall perform its duties without fear, favor or prejudice and shall conduct all its activities in a clear and open manner to give the fullest effect to the objectives of this Act.
Section 5 creates a One Stop Investment Services Centre (OSISC). The OSISC shall fall under the control and supervision of the Agency. The OSISC shall comprise of representatives or employees from the following entities that play a key role in the licensing, establishment and operationalization of investment, namely; the Zimbabwe Revenue Authority, Immigration Department, Environmental Management Agency, Reserve Bank of Zimbabwe, Companies Registration Office, National Social Security Authority, Zimbabwe Energy Regulatory Authority, Ministry responsible for mines and minerals, Ministry responsible for local government, Zimbabwe Tourism Authority, Ministry responsible for labor and the State Enterprises Restructuring Agency. The Agency shall have representatives responsible to oversee the general investment issues, public private partnerships and special economic zones at the OSISC.
Sections 6 to 9 then provide for the Establishment, Composition and Functions of the ZIDA Board. The Act then also provides for investor guarantees and non-discriminatory treatment, investor obligations, regulation of special economic zones and public private partnership an analysis of which is given hereunder.
ZIDA: WHAT’S NEW?
The Act introduces a one stop shop for all investment issues in Zimbabwe. The Act is aimed at improving reforms on ease of doing business as well as to attract the much-needed foreign direct investment into the country.
i. Investor protection provisions
It must be noted that the act brought in comprehensive investor protection provisions. Of importance to note is Part III of the Act which provides investor guarantees, non-discrimination and fair treatment for all. In terms of section 17 of the same act, it provides a guarantee against expropriation without compensation. The relevant part of the said section reads as follows:
17 Guarantee against expropriation
(1) “No investment shall be nationalised or expropriated; and
(b) investor shall be compelled to cede an investment to another person, either directly or indirectly through measures having an effect equivalent to nationalisation or expropriation; except for a public purpose, in accordance with due process of law, in a non-discriminatory manner and on payment of prompt, adequate and effective compensation’’
No investments will be nationalised or expropriated save for the limited statutory exceptions which have in all fairness always existed in the constitution of Zimbabwe’s property right provisions. It will be remembered that the land expropriations took place while the law provided for protection of private property hence the question in this regard is whether there will be greater respect for the provisions of this new law than there was for the Constitution at the time of the land reform. This debate is probably outside the scope of the present piece and will be dealt with elsewhere.
In terms of the new investment law, investors will operate freely without being compelled to cede any investment to another person, either directly or indirectly through measures having an effect equivalent to nationalisation or expropriation. There will however, be an exception for a public purpose, in accordance with due process of law, but in a non-discriminatory manner and on payment of prompt, adequate and effective compensation. This brings to mind another impediment to investment in living memory which came through the Indigenisation and Economic Empowerment Act [Chapter 14:33] (hereinafter the Indigenisation Act) under which shares in existing and new investments were compulsorily to be ceded to locals. While the Indigenisation Act has undergone substantial reform to the extent that it now provides protection from expropriation of all investment save for the so called reserved sectors of the economy, being Platinum and Diamond mining, the question that immediately arises is which provision takes precedence between the protection from expropriation in the ZIDA Act, and the provisions of section 3(1) of the Indigenisation law which still provides that reserved sector investments must still be subject to the 51% expropriation rule. Until that Act is repealed or altered further to remove this requirement, there is clear incoherence in the laws and policy as ZIDA may fail to deliver the promised protection to investors in the Platinum and Diamond sectors. The type of compensation legislated in ZIDA is also key to consider as it raises fundamental questions of the Government which must be answered urgently. Under ZIDA, if the compensation is to be paid in the event of expropriation that is allowable in the limited circumstances of the Act, it shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place or, where the value of the property was negatively impacted on by notice of imminent expropriation immediately before such notice. This is a flowery promise which requires authoritative clarification of the currency of any such compensation, the time within which same will be paid, and the place of payment. There is obviously little effectiveness of compensation which takes two decades to process as is presently occurring with the compensation of former white farmers whose land was expropriated. There also no effectiveness if this compensation is paid in local currency in Zimbabwe, especially when one considers that the recent currency reforms condemned values of US$ transactions to a pittance of their true value by converting these to Zimbabwean dollars at unreasonable and inequitable rates. One will note that these investment protection mechanisms are generally part of several Bilateral and Multilateral Investment Protection agreements which Zimbabwe has acceded to, many of which existed when the Government brazenly flouted them. The importance of this issue though is that in many respects, there may be a window for international investors to exploit the provisions of the BIPPAs and take any dispute resolution to international investment arbitration as opposed to the local court system. This has also been provided for as an option in the Act and should present a positive for the international investor who may be fearful of the justice system that will resolve any potential dispute in Zimbabwe. The statutory dispute resolution mechanisms are discussed later in this document.
Another investor protection initiative is that, ZIDA accords foreign investors and their investments the same treatment with local investors under the same circumstances, with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of their investments.
But this will take into consideration some of the provisions of the Indigenization and Economic Empowerment Act, the Land Commission Act and the Legal Practitioners Act. The agency will also ensure that privileges enjoyed by Zimbabweans will remain and be considered when it comes to the treatment of investments.
Another interesting change brought about is in respect of work permits for senior expatriates from the investor’s country into Zimbabwe. It must be highlighted that the act imposes investor obligations on all investors to comply with all the laws of Zimbabwe.
Investors will be allowed to appoint any person, regardless of their nationality, as a senior manager, technical and operational expert or advisor with respect to the investment, as long as they are qualified. This however, depends on the provision that there is no person domiciled within Zimbabwe with the same qualifications, skills and knowledge as are required for the posts. The investors will be guaranteed equal access to the law and protection of their investments. While this is a progressive move it does nothing to change the bureaucratic inefficiency and corruption which characterised the issuance of visas and work permits for expatriates in the past. The complaint had always been that there are no objective rules based system in place which allows an applicant to know whether he will or will not be granted a visa or permit and that there was too much discretion on immigration officers to decide whether to grant or renew these documents. This caused massive corruption with investors being forced to be part of this illegality by paying bribes to regularise their stay in Zimbabwe. That evidently has not been cured by the new provisions.
iii. Statutory dispute resolution mechanisms
The act also provides for a dispute settlement mechanism in which parties are free to either go for domestic arbitration in terms of the Arbitration Act [chapter7:15] or international arbitration. In terms of section 38(3) of the act, any investment that was protected under a Bilateral Investment Agreement before the commencement of this act are required to register with the Agency such an investment within a period of one year from the effective date. We shall revert to this point in detail later on in this article.
iv. Provides for establishment and regulation of special economic zones (SEZs)
ZIDA will also establish and regulate special economic zones. The basic concept of special economic zones includes several specific characteristics;
a. it is a geographically delimited area, usually physically secured,
b. it has a single management or administration;
c. if offers benefits for investors physically within the zone;
d. it has a separate customs area (duty-free benefits) and streamlined procedures.
SEZs cover many areas including industrial parks, export processing zones, enterprise zones, science and technology parks and free trade zones. SEZs are a contemporary concept of development, which many developing countries are going after as an instrument to promote industrialisation and attract new technologies. It appears Zimbabwe like many African countries is aiming that SEZs restore the economy’s capacity to produce goods and services competitively, and to attract foreign direct investment that could change the economic outlook of the country.
It appears the incorporation of the SEZs into the one-stop shop centre under ZIDA will likely quicken developments in the designated areas and attract investment.
v. Introduction of Public Private Partnerships
Lastly, Part VIII, deals with the Public Private Partnerships (PPP). Essentially these relate to Joint Venture arrangements and the Joint Venture unit has been retained in this provision. Section 33 establishes the PPP unit which essentially replaces and serves the same function as the Joint Venture Unit. In terms of section 35, ZIDA is empowered to request to examine information relating to PPPs in Zimbabwe and anyone who fails to avail said information without just cause, shall be guilty of breaking the law.
vi. Allows for transfer of funds
The act now allows investors to expatriate their profits out of Zimbabwe subject to paying tax obligations. The transfer of funds may be done freely in any convertible currency that either foreign currency or any other currency preferred by the investor. Proceeds from sale of assets, dividends, patent fees and royalties from investments can now be taken out of Zimbabwe without delay. It waits to be seen how effective these provisions will be given the liquidity problems that have prevented repatriation in the past.
WILL ZIDA BE EFFECTIVE?
One cannot prescribe a one size fits all solution to attraction of international and indeed domestic investment. A lot of factors go into it. One may see substantial investment flowing into a country at war while a country which is at peace such as Zimbabwe may be seen as risky for investment. It is generally accepted though that policy consistency, economic and political stability, good governance, predictability and reliability of the government and investment incentives all play complementary roles in attraction of investment. Zimbabwe sadly has not been offering much of these over the years. In fact, all the issues bedevilling our investment climate boil down to a lack of integrity by the government and policy makers. What has existed has been a crisis of confidence. When investors cannot trust that a government will not raid foreign currency accounts as it pleases, or will not choose to suddenly reintroduce indigenisation laws or simply expropriate private property in spite of the law, that investment destination will generally be viewed in dim light. When guarantees of the value of currency cannot be given and when investors can see millions of dollars of investments being whipped out overnight by an unannounced currency regulation, then certainly little can be done by way of legislation to calm the nerves of the owners of capital. What Zimbabwe needs goes beyond the enactment of ZIDA. It is a cultural shift in the government under which it not only makes laws, but respects them. A simple rearrangement of the location of a few offices and renaming of existing institutions does not achieve the re-establishment of lost trust in the system of governance, and that is where changes are required.
A good starting point is to ensure and guarantee proper anti-corruption mechanisms. This is a function of political will and stringent implementation of laws. Without this, the same corrupt civil service that operated in the former entities will still be the same in ZIDA and may simply continue their corrupt ways under a new name.
Another way of instilling confidence is to properly protect investments and Statutory Instruments such as SI142/19 which have simply by the stroke of a pen changed values of certain transactions from US$ to local currency must never again be seen in the jurisdiction. This can only be a function of respect by the government for those that are governed, and respect for the laws that they promulgate, without this, ZIDA will literally be another sugar quoted Ponzi scheme by which investors are lured to place their money into the country and the government simply changes the rules soon thereafter. If the investor protection provisions are implemented well, and the state guarantees against expropriation, that could be a way to secure investment, but one would imagine that trust will take decades to re-establish, but doing so will mean that the government must start behaving responsibly now and not later. It cannot enact ZIDA today and claim to be reforming while fiddling with currency values thus effectively whipping away investments and expect success from ZIDA.
In view of the provision for transfer of funds under 19(1) of the Act, if the government follows the spirit of the law it could attract huge investor confidence about Zimbabwe as a country given that investors are business people intending to make profits from their investments with the hope of repatriating them to their home countries. It is an open secret that there is a long queue of people and institutions waiting to repatriate funds which were applied for at times many years prior but due to that alleged lack of foreign currency, this cannot be achieved. The question therefore arises whether the simple enactment of ZIDA will miraculously make the money available for repatriation, without a corresponding fund guaranteeing this position. It is in our respectful view highly unlikely and appears to be a provision waiting to be flouted.
Further, there must be a move from political squabbling, bickering and cronyism in appointments and ensure that there is ZIDA autonomy. There must be a stop to championing of short-term causes and investing in the long term benefit. The staffing of top positions in ZIDA must be done based on merit as this institution is incredibly powerful and has the potential to improve the economic outlook of Zimbabwe with the right personnel.
A good example of how initiatives like this Act can improve a nation’s economy is the Rwandan model. Rwanda also recently revised its investment laws. Their implementation is very simple and friendly. You simply search online for Rwanda one-stop investment and you are directed to a one-stop shop wherein there are details on why to invest in Rwanda, investment opportunities and how such investment is done. A general outlook of the system makes it seem quite easy and their present economic ascendancy is a testimony in part to how effective their investment law is. ZIDA if implemented well has the potential to do the same for Zimbabwe, but the real reform lies not in the law, but the lawmaker.
The new provisions brought about by the recent legislation are certainly welcome and will help in the broader agenda of rebranding Zimbabwe as a safe and reliable investment destination. These measures are however insufficient as they must be accompanied by a broad spectrum of behavioural and cultural changes in the way that institutions are run in Zimbabwe. It is largely a question of political will to actually be different and not merely a legislative question. Only time will tell just how committed the authorities are to the audacious warranties they have enacted through the said law.
A publication of the Litigation, Banking & Financial Services Law Practice Group in the firm Mushoriwa Pasi Corporate Attorneys.
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