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Business Reporters
THE appointment of Retired Justice Moses Chinhengo to preside over the disciplinary hearing of suspended NetOne Cellular chief executive Lazarus Muchenje has come under spotlight, amid concerns he could be seriously conflicted.
The disciplinary hearing is taking place this morning where Mr Muchenje is expected to answer to several charges including incompetence, theft, habitual and substantial neglect of his duties as the chief executive of Zimbabwe’s second largest mobile operator.
Mr Muchenje was suspended on February 20 this year, alongside acting chief finance officer Mr Tinashe Severa.
He approached the High Court seeking nullification of the suspension in which an interim relief order was granted to stop the hearing.
Mr Muchenje argued that the meeting which resolved to relieve him of his duties was not properly constituted, hence the court should suspend all resolutions that were adopted.
NetOne appealed to the Supreme Court which effectively suspended the interim relief order.
The conflict of interest, with regards appointment of Justice Chinhengo, arises from the fact that NetOne acting chairperson Ms Susan Mutangadura is a member of the Africa Institute of Mediation and Arbitration (AIMA), an institution which was founded by the renowned retired judge.
Justice Chinhengo is also the executive managing director of the Institute, while Ms Mutangadura is a panellist on AIMA, making the two more of business associates.
“Ms Mutangadura is a lawyer by training, while Justice Chinhengo is an esteemed and respected retired Judge.
“The two are seasoned legal practitioners who understand the law and its interpretation and execution very well. They both should know what a material conflict of interest means,” said one source who requested not to be identified for professional reasons.
When contacted, Justice Chinhengo declined to comment, referring the question to NetOne. Ms Mutangadura said she was unable to comment at the time she was contacted.
Ms Mutangadura was authorised by the Board to appoint a disciplinary authority to preside over the hearing process of Mr Muchenje and Mr Severa through a resolution dated 20 February 2020 and signed by four NetOne directors. She then used the power given to her by the board resolution to appoint retired Justice Chinhengo.
This is evidenced in a letter to Mr Muchenje dated 2 March 2020, notifying him to appear before Justice Chinhengo.
According to insiders with knowledge of the matter, Ms Mutangadura did not declare her interests to other board members neither did she recuse herself in a matter where her business associate was being given business by NetOne.
This, according to corporate governance experts, is a breach and clear violation of the Public Entities and Corporate Governance Act and the Public Finance Management Act.
The Public Entities and Corporate Governance Act addresses conflict of interest of directors in Section 34.
Section 34 (1) (iv) states that where a board member or senior staff member of a public entity knows or has reason to believe that any of his or her associates has acquired or holds direct or indirect pecuniary interest in any matter that is under consideration by the board or that is or, to his or her knowledge, is likely to be the subject matter of a contract between the public entity and any other person, the board member or senior staff shall forthwith disclose to the entity’s board.
A renowned expert who is involved in arbitration matters described the appointment as “uncomfortably close to the bone in the eyes of reasonable people.”
“They should have looked for an arbitrator elsewhere; they are plenty . . . there are a lot of respectable judges who could have been considered,” said the expert.
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