Community Water Alliance Petitions City of Harare
The Community Water Alliance has presented a petition to the City of Harare in which they are seeking to block the waste to energy deal which has become to be known as Wastegate.
Find the petition Below:
Community Water Alliance of Room 8-3rdFloor, Mass Media House, Corner Third Street and Selous Avenue, Harare
Whose members are: Christopher Gohori and Joyleen Nyachuru
Respectfully shows that your petitioners: 1. Being citizens of Zimbabwe
2. Whose funding methods are member subscriptions and donations;
ACKNOWLEDGING that the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 (Constitution) provides for Mayors and Councillors to preside over management of urban local authorities and that the Urban Councils Act ( Chapter 29:15) mandates councillors to make by-laws, carry out oversight role over bureaucrats at urban local authorities and discharge a representative role;
AWARE that under Section 73 every person has the right to an environment that is not harmful to their health or well-being, and the State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of this right;
MINDFUL that that the enjoyment of a health and clean environment is inextricably linked to efficient and economic use of resources 194(1)(b); development-oriented public administration 194(1)(c); impartial, fair and equitable provision of services 194(1)(d); accountability of public administration to the people 194(1)(f);
KNOWING that the city entered into a concession agreement to design, build and operate the Harare Pomona Waste Management Facility and Waste to Energy Power Plant with Geogenix B. V; WORRIED that this concession agreement has and will contribute to unsustainable payment obligations to the city, proliferation of illegal dump sites in the city and that the agreement is in bad taste due to the following reasons:
On the preamble of the concession agreement it is clear that the contracted firm Geogenix B. V will form a project company that will act as the Contractor ( Item G). Clause 2.1.3 of the agreement specifically states that Geogenix B. V “shall establish the PROJECT COMPANY which shall carry out the agreement in place of Geogenix B. V and the project company shall replace Geogenix”. The agreement goes further to state that “all rights and obligations imposed on Geogenix under the agreement shall be transferred to the PROJECT COMPANY. It is not clear Your Worship whether Geogenix is acting as a shelf-company and why in the first place the agreement was not sought between City of Harare and the company referred to as project company. It is also not clear Your Worship whether the project company is already registered or will be registered after the signing of final agreement.
Clause 2.2(e) of the concession agreement is disturbing Your Worship. City of Harare is obliged to secure supply and delivery of Minimum Guaranteed Waste Quantities and also payment of Minimum Annual Guaranteed Fee to Geogenix. Clause 22.3.1 further explain this point. The city is obligated to supply a minimum of 550 tonnes per day and pay USD22,000 per day during the year 2022. In 2023 the city is obligated to supply 650 tonnes of waste per day and pay to Geogenix USD26,000 per day. In 2024 the city is obligated to supply 750 tonnes per day and pay Geogenix USD30,000 per day. In 2025 the city is obligated to supply 850 tonnes of waste to Geogenix and pay USD34,000 per day. In 2026 the city is obliged to supply 1000 tonnes of waste per day and pay USD40000 per day. IN OTHER WORDS ALL TARGETS ON QUANTITIES OF WASTE SUPPLIED PER DAY ARE WELL CALCULATED TO FATTEN THE POCKET OF GEOGENIX. Clause 22.3.2 is more disturbing. The clause prohibit contesting and disputing amounts payable to Geogenix based on the daily minimum quantities of waste established. WHERE ON EARTH CAN A LESSOR PAY LESSEE FOR STAYING AT PREMISE WHOLLY OWNED BY LESSOR?. The cost is USD40 per tonne- Clause 22.1. Late payment will generate interest- Clause 23.4.
Clause 2.2.1(f) prohibit construction of even waste collection or separation centres which were already set-up in Mbare, Glen-View and Budiriro. Geogenix wants monopoly on waste. I want to just highlight that even the Environmental Management Agency is promoting reduce, recycle and reuse model of waste management as well as separation at source/community level. This agreement wants to perpetuate the “collect, transport and throw-away” approach to waste management which has clear evidence of failure. The agreement will force the local authority to continue transporting waste from as far as Glen-View to Pomona, even with a few functional refuse trucks out of a fleet of 36 trucks. You have to forget the biogas plant in Mbare if this thing is allowed to proceed.
The other serious challenge is on appointed representatives to the agreement. I refer you to clauses 2.5.5; 2.5.7; and 2.5.10. Clause 2.5.5 states that during a period when City of Harare has not appointed a representative to the agreement, another “duly authorized” representative of the city shall carry out functions that would have been performed by appointed representative. THE MILLION DOLLAR QUESTION IS WHO IS THE DULY AUTHORIZED representative?. Clause 2.5.7 tries to answer this question by stating that Geogenix shall not determine whether any express authority by COH has in fact been given to duly authorized representative. Clause 2.5.10 goes further to state that even on Geogenix’s side CoH representative shall not be required to determine whether any express authority has in fact been given. THIS MEANS ANYONE CLAIMING TO HAVE BEEN AUTHORIZED CAN SIGN DOCUMENTS. THOSE LEADING THE LEGAL DEPARTMENT OF THE CITY MUST ACCOUNT FOR SOME OF THESE PROVISIONS.
The concession agreement propose to have a Liaison Committee. The Committee will have independent experts who will be paid. City of Harare will pay 50% and Geogenix 50% to “independent experts”. Read clause 2.6.3. Clause 2.7.8 goes further to state that Liaison Committee meeting minutes (meetings can be held over telephone) are kept by Geogenix.
Clause 3.1.1 and 3.1.2 are specific that Pomona will be handed over free of charge and against no payment of any fees, tariffs or taxes whatsoever. Geogenix shall be given unencumbered ownership in the form of title deeds-Clause 3.1.2. Once works are built, the premises and facilities shall become property of Geogenix ( Clause 8.1(b)). Whilst Geogenix get Pomona free of charge the city shall be liable to Geogenix for losses, costs and damages arising from the existence of any defect in the physical structure of buildings-Clause 3.3.3. Geogenix will not be liable to damages to the environment and third parties- Clause 3.3.2.
Under clause 9.3 Geogenix is seeking all powers of attorney and power to obtain and renew permits. Where Geogenix design documents that the city object to, the company will have discretion to decide whether to accept or reject City of Harare objections-Clauses 10.1.4 and 10.1.5.
City of Harare will pay for monitoring and inspection of the works-11.3.2. City of Harare will have restricted monitoring of works in the presence of Geogenix officials– Clause 11.3.1.
Geogenix is not obliged to employ COH officials stationed at Pomona. The company will have sole discretion to employ personnel they deem necessary-Clauses 15.1, 15.2.
No audit rights for City of Harare- Clause 20.1.
Geogenix is exempted from paying taxes and duties during the entire 30 year period- Clause 39.
NOW THEREFORE your petitioners beseech the Harare City Council to exercise its representative and oversight role and address the following issues of public concern:
Protect the constitutionally guaranteed values and principles of development-oriented and accountable public administration by terminating the Pomona concession agreement;
Bring City of Harare legal department to account on legal advice given within the context of the concession agreement;
PETITIONER’S PLEA AND PRAYER: The petitioners beseech the Harare City Council to exercise its constitutional mandate to safeguard values and principles governing public administration. WHEREFORE, we pray that your Honourable House will be pleased to take their case into favourable consideration, and grant any other such relief as it may deem fit, AND your petitioners, as in duty bound, will ever pray.