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Public Entities Corporate Governance Act [Chapter 10:31]

PUBLIC ENTITIES CORPORATE GOVERNANCE ACT [CHAPTER 10:31]
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1. Short title and date of commencement.
2. Interpretation.
3. Application of Act.
4. Act not to affect composition or independence of constitutional Commissions.
PA.RT II
CoRPORATE GovERNANCE U!--.'l.T
5. Corporate Govemance Unit.
6. Functions of Unit.
7. Functions of head of Unit.
8. Head of Unit may engage consultants.
9. Minister may give Unit policy directions.
10. Annual reports of Unit.
PART III
Arroil'<TME. ". lT, TENL'RE AND CoNDITIONS oF SERVICE oF BoARDS oF PuBuc E:-..'TIT!ES
11. Appointment of boards of public entities.
12. Remuneration of non-executive members of public entities
13. Conditions of service of executive members of public entities.
14. Restriction on remuneration of board members of public entities.
15. Resignation of board members of public entities.
16. Dismissal of board members of public entities.
PART IV
ArrorNrrv!ENT AND CoNDrrroNs oF SERVICE oF SENIOR STAFF oF PuBuc El'.'11TIES
17. Appointment of chief executive officers of public entities.
18. Appointment of senior staff of public entities.
19. Conditions of service of senior staff of public entities.
20. RestJiction on remuneration of senior staff of public entities.
21. Restriction on terminal benefits payable to executive members and senior staff
of public entities.
PARTV
STRATEGIC PLANS AND P:t""RFOR.tviANCE Col"'TRACTs
22. Strategic plans of public entities.
23. Performance contracts :vith senior staff of public entities.
24. Review and monitoring of compliance with strategic plans and performance
contracts.
25. Performance contracts with board members of public entities.
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No. 4/2018 Ptmuc ENTITIEs CoRPORATE GovERNANCE Cap. 10:31
PART VI
BoARD CHARTERS, CoDES OF Ennes AND NATIONAL ConE oF CoRPORATE GovamANCE
Section
26. Public entities to honour Good Coqxm:1te Governance Code and prepare board
chmtcrs and codes of ethics.
27. Principles and contents of board charters and codes of ethics.
28. Approval of board charters and codes of ethics.
29. Amendment of board charters and codes of ethics.
30. Board chatters and codes of ethics to be available for inspection.
31. Monitoring of compliance with Good Corporate Governance Code, board charters
and codes of ethics.
32. Application of other ctxles of corporate governance to public entities.
PART VII
CoNDUCT or Busrl'.Tss nv BoARDs oF Ptmuc ENTums
33. Meetings of boards of public entities.
34. Conflicts of interest on part of board members and staff of public entities.
35. Minutes of meetings of boards of public entities.
36. Audit of accounts of public entities.
PlRT VIII
GEN1:~RAL
37. Declaration of assets by board members and senior statT of public entities.
38. Responsibilities of State appointees to boards of ce1tain public entities
39. Implementing manuals.
40. Special investigations.
41. Powers of special investigators.
42. Notification of establishment and dissolution of public entities
43. Exemptions.
44. Regulations.
45. Amendment of First and Second Schedules.
46. Savings and transitional provisions.
FIRST SCHEDULE: National Code on Corporate Governance Zimbabwe.
SECOND SCHEDULE: Principles of Good Corporate Governance for Public
Entities.
THIRD SCHEDULE: Surcharges.
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Cap. 10:31 PuBuc ENTITIES CoRPORATE GovERNANCE No. 4/2018
ZIMBABWE
To provide for the govemance of public entities in compliance with Chapter
9 of the Constitution; to provide a uniform mechanism for regulating
the conditions of service of members of public entities and their senior
employees; and to provide for matters connected with or incidental to
the foregoing.
WHEREAS section 194 of the Constitution provides as follows, in regard to
public entities:
( 1) Public administration in all tiers cif government, including institutions
and agencies of the State, and government-controlled entities and other public
enterprises, must be governed by the democratic values and principles enshrined
in this Constitution, including the following principles-
( a) a high standard ofprofessionai ethics must be promoted and maintained;
(b) efficient and economical use of resources must be promoted;
(c) public administration must be development-oriented;
(d) services must be provided impartially,fairly. equitably and without bias;
(e) people:~ needs must be responded to within a reasonable time, and the
pubiic must be encouraged to participate in policy-making;
(j) public admim~~tration must be accountable to Parliament and to the people;
(g) institwions and agencies ofgovernme!U al all levels must co-operate with
each other;
(h) transparency must be fostered by providing the public with timely.
accessible and accurate il!formation;
Printed by the Government Printer, Harare
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No. 4/2018 PUBuc EN'I1TIES CoRPORA.TE GovERNANCE Cap. 10:31
( i) good human-resource management and career-development practices. to
maximise human potential. must be cultivated;
(j) public administration must be broadly representative of the diverse
communities of Zimbabwe;
( k) employment, training and advancement practices must be based on Jnerit,
ability, objectivity.fairness, equality of men and women and the inclusion
ofpersons with disabilities;
and the State must take measures, including legislative measures. to promote these
values and principles.
(2) Appointments to offices in all tiers of government, including government
institutions and agencies and governmem-controlled entities and other public
enterprises, must be made primarily on the basis of merit.
AND WHEREAS section 195( 1) of the Constitution llk'1kes the following provision
for State-controlled commercial entities:
(I) Companies and other commercial entities owned or wholly controlled
by the State must, in addition ro complying with the principles set out in section
I94( I), conduct their operations so as to maintain commercial viability and abide
by generally accepted standards of good corporate governance.
AND WHEREAS section 197 of the Constitution permits an Act of Parliament to
limit the terms of office of chief executive officers or heads of government-controlled
entities and public enterprises;
AND WHEREAS section 198 of the Constitution requires an Act of Parliament
to provide measures for the enforcement of the above provisions, including measures
specifying the standards of good corporate governance to be observed by govemmentcontrolled
entities and other conm1ercial entities owned or wholly controlled by the
State, and measures for the disciplining of persons who contravene those standards;
AND WHEREA .. S section 316 of the Constitution requires an Act of Parliament to
provide for the competent and effective operation of statutory bodies and, in patticular,
to ensure that their chief executive officers serve for limited periods whose renewal is
dependent on the efficient performance of their duties:
NOW, THEREFORE, be it enacted by the Parliament and the President of
Zimbabwe as follows:-
PART I
PREUMINARY
1 Short title and date of commencement
(1) This Act may be cited as the Public Entities Corpomte Governance Act
[Chapter 10:31].
(2) This Act shall come into operation on a date to be fixed by the President
by statutory instrument.
2 Interpretation
(1) In thisAct-
''annual general meeting", in relation to a public entity, means au annual meeting
of the stakeholders of the entity referred to in section 33(3);
"associate", in relation to a person, has the meaning given to it by subsections
(5), (6) and (7);
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Cap. 10:31 PuBuc EN-nTrEs CoRPoRA.TE GovERNANCE No. 4/2018
"board", in relation to a public entity, means the members of the goveming
body of the entity, by whatever name called, holding positions comparable
to those of the directors of a company;
"board charter" is the document which. in addition to outlining the mission and
values of the public entity for which a board is responsible, sets fi.11th how
board members will discharge their duties and the standards of conduct
to which they will be held in that capacity;
"board member representing minority interests", in relation to a company or
other entity which is government-controlled but in which one or more
other persons have interests, means a member of the entity's board
representing those other persons;
"chief executive officer", in relation to a public entity, means the person who,
either alone or jointly with one or more other persons, is responsible under
the direct authority of the entity's board for the conduct of the entity's
activities;
"code of ethics'', in relation to a public entity, is the document outlining the
mission and values of the public entity, how employees of the entity are
supposed to discharge their duties and resolve problems consistently with
the entity's values, and the standards of conduct to which employees will
be held towards each other and the public in their capacity as employees;
"constitutional Commission'' means a Commission established by the
Constitution;
"enabling instmment ", with reference to any public entity, means the instmment
(whether or not embodied in a single document) that establishes the entity
and governs its functions, powers and procedure, and with reference to--
(a) a constitutional Commission, includes the Constitution and any
enactment governing the Commission's functions and procedure;
(b) a statutory body other than a constitutional Commission, means the
enactment by or under which that body is established;
(c) a company, means the memorandum and articles of association or
other foundational document establishing the company that is filed
with the Companies Registry in accordance with Companies Act
[Chapter 24:03];
(d) an entity established under an agreement for a partnership or joint
venture between the State and any other person, which entity is
declared in tenns of subsection (2) to be a public entity, means the
agreement establishing that entity;
(e) an entity declared in terms of subsection (2) to be a public entity
other than one described in the foregoing paragraphs, means the
operative, constitutive or foundational document of that entity;
"executive member", means a member of the board who is employed by the
entity in a managerial or teclmical capacity;
"fixed date" means the date fixed in terms of section 1(2) as the date of
commencement of this Act;
'Good Corporate Governance Code" means the National Code on Corpomte
Govemance set forth in the First Schedule;
"head of the line Ministry" means the Secretary of the line Ministry;
"head of the Unit "means the head of the Unit referred to in section 5(2);
"independent member", in relation to the board of a public entity, means a
board member who does not have a pecuniary or material relationship
Vith the entity or an associated person of the entity;
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No. 4/2018 PuBLic Emnms CoRPORATE GovERNANCE Cap.10:31
"line Minister", in relation to-
(a) a constitutional Commission, means the Minister or Vice··
President responsible for the administration of the Act setting out
the Commission's functions and additionally, or alternatively, its
procedures;
(b) a statutory body, means the Minister or Vice-President responsible
for the administration of the Act goveming the establishment of the
body;
(c) a public entity other than a constitutional Commission or a statutory
body-
(i) means the Minister or Vice-President who on behalf of the
State holds the shares in or otherwise exercises control over
the entity; or
(ii) where a public officer other than a Minister or Vice-President
holds on behalf of the State the shares in or otherwise exercises
control over the entitv, meam; the lvfinister or Vice-President
responsible for the administration of the enabling instrument
under which the public officer exercises his or her functions;
'Minister" meat1'> the Minister or Vice-President to whom the President may,
from time to time, assign the administration of this Act:
"ncar relative", in relation to a member of a board of a public entity or senior
staff member of a public entity, means the member's spouse, child, parent,
brother or sister;
"non-executive member" means a member of the board who does not hold a
salatied office in the entity, whether or not he or she is an independent
member;
"petformance contract" means a performance contract entered into in terms
of Part V with a board member of a public entity or with a senior staff
member of such an entity;
"public commercial entity" means a company or other commercial entity which
is owned or controlled by the State or by a person on behalf of the State;
"public entity" means an entity whose operations or activities are substantially
controlled by the State or by a person on behalf of the State, whether
through ownership of a majority of shares in the entity or otherwise, and
includes--
(a) a statutory body; and
(b) a public commercial entity; and
(c) an entity established under an agreement for a partnership or joint
venture between the State and any other person, which entity
declared in terms of subsection (2) to be a public entity; and
(d) any subsidiary of an entity referred to in paragraph (a), (b) or (c);
''regulatory entity" means a public entity established to regulate or supervise
a particular area of activity in the public interest;
"Secretary" means the Secretary of the Ministry, or head of the Department or
Oftlce, as the case may be, for which the Minister is responsible;
"senior staff member", in relation to a public entity, means the entity's chief
executive officer and such other members of its statJ as may be prescribed
or as may be specified by the Unit by wtitten notice to the entity eoncemed;
"statutory body" means-
(a) a constitutional Commission; or
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Cap. 10:31 PuBuc ENnTIF.s CoRPOR.t>.TE GovE&'iANCE No. 4/2018
(b) a-
(i) body corporate established directly by or under an Act for
special purposes specified in that Act; or
(ii) board, committee or similar entity which is established directly
by an Act for special purposes specified in that Act;
whose members consist wholly or mainly of persons appointed
by the President, a Vice-President, a Minister, a Deputy Minister,
another statutory body or by a constitutional Conunission;
"strategic plan" means a strategic plan of a public entity drawn up in terms of
section 22;
"Unit" means the Corporate Govemance Unit referred to in section 5(1).
(2) The Minister may, at the request of or in consultation with the line Minister
conccmed, by notice in the Gazerte, specify any entity established under an agreement
for a partnership or joint venture between the State and any other person to be a public
entity for the purpose of this Act.
(3) Where a senior staff member of a public entity is not appointed by the board
of the entity, any reference in this Act to the board in regard to the sta!T member's
appointment, discharge or conditions of service shall be construed as a reference to
the person or body that appoints the staff member.
at-
(4) Where this Act requires any document to be kept available for inspection
(a) the office of a line Ministry, a public entity or any other entity, the
document shall be kept at the entity's head office and any provincial office
and at any of the entity's other offices where members of the public might
reasonably expect to find the document;
(b) the office of the Unit, the document may be kept at that office or at any
other office or place notified by the lviinister by notice in the Gazette;
~nd the document shall also be kept available in electronic fmm for inspection by
members of the public on the website of the entity or the unit or on such other website
as may be prescribed.
(5) Vhere a person, other than an employee, acts in accordance with the directions,
requests, suggestions or wishes of another person, whether or not the persons are
in a business relationship and whether or not those directions, requests, suggestions or
wishes are communicated to the first-mentioned person, both persons shall be treated
as associates of each other for the purposes of this Act.
(6) Without limiting the generality of subsection (5), the following shall be
treated as a person's associate-
(a) a near relative of the person, unless neither person acts in accordance
with the directions, requests, suggestions or wishes of the other;
(b) a partner of the person, unless neither person acts in accordance Vith the
direc1ions, requests, suggestions or wishes of the other;
(c) a partnership in which the person is a pmtner, if the person, either alone
or together with one or more associates, controls fifty per centum or more
of the rights to the partnership's income or capital;
(d) the trustee of a trust under which the person, or an associate of the person,
benefits or may benefit;
(e) a company which is controlled by the person, either alone or together
with one or more associates;
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