MINES Minister, Walter Chidakwa, refuses to be vitiated by the attempts of Dutch farmers and Amaplat to find compensation in the diamonds proceeds coming from Antwerp and his spirited fight to repulse them re-defines the jurisprudence of international law.
These two cases have been keeping Minister Chidakwa awake at night but he seems to be gaining ground. Chidakwa is not only fighting for his own government but for other third world countries that are subjected to the vestiges of the oppressive Western legal jurisdictions under the guise of applying international law.
Zimbabwe’s legal team, led by Farai Mutamangira, who is revered in the Kimberly Process community as the "most shrewd solicitor", is arguing in the Belgium Court that the Dutch farmers, collectively referred to as the Funnekoter, and Amaplat are seeking attachment of goods that do not belong to the Government of Zimbabwe.
Amaplat’s claim arise from an International Court of Arbitration award against Zimbabwe Mining Development Corporation (ZMDC) who are erroneously contending that no mining entity can mine diamond except ZMDC and therefore the diamonds sold in Belgium belong to ZMDC. However, this award is being challenged in the Zambia High Court. Lusaka is a city of arbitration.
The diamonds sold in Belgium belong to Mbada diamonds, Marange Resources, DMC mining and Jinan. Of course the Amaplat position is unsustainable at law as all these entities have separate legal personalities registered under the Companies Act. ZMDC is a creature of statute. Commercial invoices and export documents of record of these diamond shipments demonstrate, without ambiguity, that these diamond companies were and are acting as separate entities.
The Funnekotter dimension relates again to an arbitration award against the Government of Zimbabwe by the International Centre for Settlement of Investments Disputes (ICSID), which was registered in the Court of First Instance (equivalent of High Court) in Brussels in July 2012.
The Mutamangira-led legal team has now brought a property law action to assert ownership of the diamonds by the mining companies. This vindicatory action has put Amaplats and Funnkernote on their back foot and leaving the Belgian Balliff (Sherriff of the Court) in a quandary.
On 19 September 2014, Minister Chidakwa’s legal team filed at the Court of First Instance in Brussels an urgent chamber application to attach diamond parcels founded upon his assertion. This step is presevatory in nature and registers the mining entities’ interest in the diamond parcels. The Court is yet to sit.
The foregoing developments simply expose competing interest between the Antwerp and its central governments in respect of Zimbabwean diamonds. The diamond trading district of Antwerp is keen to wholesale Marange diamonds but its own government continues to align with London’s antagonizing policy on Mugabe’s gems.
Addressing the Kimberly Process Johannesburg 2013 breakfast meeting, beamed live on SABC, Minister Chidakwa said, “The Mugabe government has a comprehensive inventory of friends and foes in the diamond trading industry. We know the challenges that lie ahead, especially the implications arising from direct and indirect illegal sanctions. We are aware of the encumbrances of frivolous litigation also arising from our revolutionary land reform that threaten our national economic interests.
“The current offshore diamond auctioning will soon be replaced by domestic auctioning and we are, in the meantime, proceeding carefully to ensure that we deal direct with big boys and not the small fish that are buying diamonds and resale them at a premium.” True to his word, the Zimbabwe diamond price leaped from an average of USD38.00 per carat in 2013 to current of USD75.00.
In its dossier to European Commission on the Resolution on Kimberly Process, the Belgium government said, “it is a fact, however, that human rights can also be infringed on by governments on a large scale, as is the case in Zimbabwe.” This statement is clearly an indictement on President Mugabe government by the Belgium government whose diamond industry desperately wants to buy the whole of current and future production of Zimbabwean diamonds.
The on going battle legal challenge in Belgium is a replica of similar claims made by other “judgment creditors” of Zimbabwean government who won judgments and awards in other western jurisdictions.
In 2011, the Funnektotter also lost in a United States district court when they sought the Court to freeze funds belonging to ZB Bank, CBZ, ZMDC and MMCZ because they are “instrumentalities of the Zimbabwean government”. This was in pursuit of an 8 million Euros award for “the lost farmland.” In his land mark ruling Judge McMahon said these entities were separate entities from the Government of Zimbabwe and not instrumentalities. It will be therefore interesting to see if the Brussels High Court, presiding on a matter of identical facts, will rule different from what an American District Court Judge ruled.
Minister Chidakwa’s plan to commence home diamond sale is very plausible as it allows these transactions to prosper without external interference. When De Beers moved its sighting portfolio (diamond auctioning) from London to the dusty city of Gaborone, the prophets of doom declared that that was the end of De Beers. To date, the sightings have been over-subscribed and this proved a point that Africa’s gems can be sold on the same soil they are mined.