Mutumwa Mawere

Africa's future must necessarily lie in underpinning its moral capital with supporting and reinforcing institutions.

Ultimately, the accumulation and retention of moral capital is and should be inextricably linked to institution building.

Reputation of moral conduct determines the value of moral capital as human existence and experience has not been able to produce a mechanism that can read people's minds.

What lies between the ears of a human beings is so complex and hidden that observation and experience are the only reliable instruments for predicting behavior.

It is impossible to rely on a person's moral convictions in commercial transactions and often a person's reputation based on history is used as a proxy.

With a current world population estimated at about 6.8 billion, we must accept that it is impossible for anyone to have personal and direct knowledge of the universe but in a lifetime one is able to interact with only a few and it is through relationships that we can build a society that reflects the values that we hold dear as human beings.

Such trust is and should be based on reliance on observable constraints on unjust conduct being the institutions that give structure to social life and all forms of laws, customs, social practices, moral rules and all forms of self restraint that are voluntarily assumed by human beings,

What then are institutions? They are structures and mechanisms of social order and cooperation governing the behavior of a set of individuals with a given human collectivity. They consist of patterns of actions that arise from human settings and interactions.

We as individual players in the journey of life have to rely on these patterns of action in the conduct of our own affairs.

However, not all institutions constitute moral rules, as some institutions are morally neutral. To the extent that Africa's institutions can represent standards of beneficence and justice, it is possible for moral capital to be embedded in institutions.

Morality should be part and parcel of Africa's institutional framework as moral conduct can create and sustain institutions that give confidence that the future can be brighter and better than today.

Even colonial institutions continued to shape conduct by providing moral guidance and continuing to signal to players the costs and benefits of the public policy choices made.

However, it must be accepted that human rules, however, angelic in their construction stand to be violated from time to time hence the need for institutions to continuously remind the players of the costs and benefits of misbehaving.

The Africa we want to see and live in; must then be underpinned by an institutional framework that is characterized by normative rules that require a sustained and critical level of observance to endure.

This level is and should be negotiated among the players, as what is morally wrong should not be legally right.

The fusion between morality and legality must be jealously guided lest laws end up depending on who is in control of the state.

We have seen in many African states, laws that are manufactured to deal with personal circumstances rather than such laws being indentified with the sanctity of any moral law.

In undemocratic states, rulers arbitrarily claim the right to make law.

Laws must have general application and must be understood by the people to whom such laws should apply.

To the extent that many African states purport to be democratic, their laws must reflect distributional outcomes that should emanate from public choices made in post-colonial Africa.

They should not be moral only because they are meant to satisfy the demands of particular interest groups.

The sustainability of any legal system must be judged on its ability to protect the rights of persons and their property.

The sanctity of contracts in any progressive society cannot be understated, as is the notion that a legal system can only be sustainable if it embodies a minimum content of morality.

We have observed in many post-colonial African states a tendency by state actors to invest in the deviation of rules from the community's morals leading to unmitigated drain of skills and brains and more importantly a bleak future characterized by poverty and lack of investment.

Is it not ironic that many African leaders would like the people in the diaspora to return to their motherlands and yet fail to realize that at the individual level such people who vote with their feet are not delusionary but rational human beings who see the daily crumbling of the legal system as a real threat to a future they want to be part of.

In societies that have invested in moral capital, it is hardly necessary to enforce laws that give expression to the rules that members of society observe as part of their traditional modes of conduct. Conversely, state laws that are inconsistence with the moral values of the people entail high enforcement costs.

It is not, therefore, unusual to see in post-colonial Africa a massive investment in the enforcement of immoral and unjust laws. The state can and has been used as an instrument to impose laws that do not speak to the values held by the people.

After 6 years as a specified person, there is no doubt that my personal experiences have enriched my understanding about the link between moral capital and institution building. In life, one is exposed to many experiences and it must be accepted that bad laws can co-exist with good laws as long as the bad laws are never used against one it would be difficult to understand the need for moral capital building. We can only learn from case studies and yet rarely do human beings invest in knowledge building.

Have you not heard at dawn of each independent African state statements like: "We will never sink as low as so and so country" and yet in country after country the frontiers of poverty and ignorance have not been reduced.

When I decided to write on the complex subject of moral capital building, I was acutely aware that many of my colleagues who have not travelled the same journey might never know the need for us as citizens of Africa to be vigilant.

My experience has been described as unique by some, while others have treated it as self created.

However, irrespective of the motivation that led some state actors to act in the manner they did and in so doing contaminate the integrity of the institutional framework required to support progress.

The tolerance that people have for bad laws and the lack of investment in an institutional framework that can provide the checks and balances is characteristic of what has gone wrong in Africa.

Some of Africa's best brains cannot be harnessed in the motherland and this exposes Africa to the kind of risk where people who call for change are easily misconstrued as agents of foreign actors.

I have personally been privileged to be at the receiving of bad laws some of which were only enacted to deal with my personal circumstances.

Here you have a black person being victimized by people renting the state machinery for personal benefit and yet people remain silent not because they have nothing to say but they do not have all the facts in their possession.

What then can one do with such life altering experiences? I have found it easier to communicate through my writings in the hope that people can read and make their own conclusions.

When people talk of the separation of powers doctrine, it if often difficult to comprehend why it is necessary in a democratic constitutional order to have the executive, judiciary and legislative arms of the state as separate and distinct institutions.

When I began the journey into business, I must confess that I had underestimated the limited or lack of moral capital investment and the impact that a dominant political culture can have in corrupting organs of the state.

When the state of emergency powers were used to promulgate the Reconstruction of State Indebted Insolvent Companies decree on Friday, 3 September 2004, I thought it was big joke. How could any person be indebted to the state? If so why, would any creditor need the assistance of temporary powers that are granted to the President to deal with emergencies? Was the state capable of existence as a contracting party to give rise to claims against other parties? What was at play?

The above were some of the questions that immediately came to mind over the fateful weekend. But alas on Monday, an Administrator was appointed pursuant to the statutory instrument issued by the Minister of Justice, Legal and Parliamentary Affairs, Hon. P. Chinamasa. On the same Monday, the Administrator, a creature of statute, was at work and his first assignment was to fire the board appointed by shareholders without even notifying the shareholders of his intended action.

When I read the regulations used to assume the control and management of my companies under a state-appointed and not a court appointed Administrator, I felt that the judiciary would step in to pronounce its distaste against such conduct by the executive.

When I requested my attorneys, Costa & Madzonga, to review the regulations they pointed out that there was no single reference to the involvement of the judiciary. Still the implications did not sink in my mind.

How could that be possible? It was in black and white. No judiciary must be involved in the enterprise of taking control of Mawere's assets read the regulations. The President promulgated the regulations; implying that he was the driving force, behind such actions.

When one reads the regulations one can understand why it is necessary for Africa's future to ensure that this will never happen again.

What is more disturbing is that the regulations and actions passed through the legislature and in numerous cases that I have instituted challenging the applicability of the laws to my circumstances given that my companies were never indebted to the state, the courts stayed out of the merits of the matters leaving me exposed to injustice.

I could only get the right of audience to the courts outside Zimbabwe. This speaks volumes of what can happen if the wheels are off.

For anyone interested in better understanding how the fusion between morality and justice can be dangerously separated, it is important to get a copy of the Reconstruction of State Indebted Insolvent Companies Act. In its preamble, it is boldly stated that the law shall apply retrospectively.

The law still exists and no campaign is in existence to have it repealed suggesting that even an angelic constitution will not substitute the lack of investment in the kind of institutions that can guarantee the protection of persons and their property in Zimbabwe.

If it can happen to me then surely it can happen to others compelling anyone interested in the future to invest in understanding our past and present.