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(THE POST) Civil Society's Petition to the Chief Justice

Civil Society's Petition to the Chief Justice to Consider a Tribunal to Probe alleged abuse of office and Corruption against Hon. Dora Siliya, Minister of Communications and Transport

18th February 2009

We the undersigned civil society organisations members, representing a huge segment of Zambia's population both in the urban and rural areas, do register our deep and profound dismay at the allegations of corruption against Hon. Dora Siliya.

We therefore feel duty bound as patriotic citizens and institutions in accordance with the provisions of Section 13 (1) of the Parliamentary and Ministerial Code of Conduct Act, Chapter 16 of the Laws of Zambia, wish to bring this allegation to your attention for action under the law by your good office to constitute a tribunal as provided for under Section 14 of the aforementioned Act to probe the allegations that we have adequately explained and detailed as below to make your work easier.

Hon. Dora Siliya, MP, the Minister of Communications and Transport is alleged to have abused her official position of three allegations of corruption, abuse of authority and failing to follow prescribed tender procedures as follows:

1. In the first instance, Hon. Siliya is alleged to have on December 22nd 2008 signed a Memorandum of Understanding (MoU) with RP Capital Partners Limited on behalf of the government of Zambia totally disregarding legal advice from the Attorney General's Chambers;

2. In the second count, the Hon. Siliya is alleged to have overruled the Zambia National Tender Board (ZNTB) and cancelled a duly awarded contract for the supply, delivery, installation and commissioning of a Zambia Air Traffic Management Surveillance Radar system (ZATM-RADAR) at Lusaka and Livingstone International Airports; and

3. In the third instance, Hon. Siliya, is alleged to have claimed a 12.5 Million Kwacha refund from the Petauke District Council Committee for two (2) hand pumps for 2 boreholes in one of the wards called Nyika when in fact; the hand pumps were procured at 5 Million Kwacha.

DETAILS OF THE ALLEGATIONS

1) Allegations against her handling of the RP Capital Partners MOU

It has been alleged that the Attorney General, Mr. Mumba Malila has strongly criticised Hon. Siliya's decision to proceed to sign an MoU with RP Capital Partners Limited over the partial privatisation of ZAMTEL shares in total disregard of legal advice from his office.

According to media reports in the Newspapers in the The Post Newspaper, Saturday February 7, 2009, Malila Criticizes Siliya on Zamtel Privatisation, The Post Newspaper, Tuesday February 10, 2009- Rupiah Backs Siliya The Post Newspaper, February 14, 2009- Siliya Defends contract with RP Capital, Zambia Daily Mail, February 14, 2009- Dora Speaks out on Attacks, Times of Zambia, Tuesday 10, 2009, Give Siliya Chance- RB Attorney general Exonerates Himself, late last year, the Permanent Secretary (PS) in the Ministry had written to the Attorney General's Chambers seeking legal advice on the MoU that the Ministry intended to sign with RP Capital Partners Limited of Cayman Islands. In response, Acting Principal Counsel, Inonge Kwenda Mweene, on behalf of the Solicitor General, wrote to the PS on the matter. Despite legal advice not to proceed, Hon. Siliya on December 22nd 2008 signed an MoU with RP Capital on behalf of the Zambian government without making amendments to the MoU. The alleged Solicitor General's authority is in contradiction to The Attorney General's letter dated January 5th 2009 to the PS in the Ministry of Communications and Transport advised that the MoU be nullified and that the necessary processes be followed. On this note we note in our legal analysis that it is not possible in accordance with the Constitution of the Republic of Zambia for the solicitor general to overrule the Attorney General unless in unconstitutional circumstances.

According to the MoU, RP Capital has been contracted by the Zambian government to provide consultancy services to the government in connection with valuation of ZAMTEL for purposes of potential sale of government shares in ZAMTEL, assistance in negotiations with prospective acquirers in conjunction with the government team and project management of the potential ZAMTEL sale process working with the Ministry of Communications and Transport and/or the Zambia Development Agency (ZDA), as the case may be. The MoU further stated that the Zambian government shall pay to RP Capital a fee amounting to five (5) percent of the negotiated amount and would get US$ 2 Million [about ZMK 10.3 Billion] as transaction fees at the end of the transaction.

However, delivering her Ministerial statement to Parliament on Friday, February 13th 2009, Hon. Siliya said the process of privatization through an MoU is not a legally binding document but only expresses the intention of the parties. The second phase, involves the actual sale, which would only be upon approval from Cabinet. She explained that RP Capital was selected on the basis of limited tender selection processes because ZAMTEL was threatened of collapse. She claimed that she followed all the tender procedures. She acted within the law when she signed the MoU with RP Capital. And on the companies that approached the government on ZAMTEL, RP capital showed interest in the valuation of assets. She justified signing of the MoU because of circular No. 1 of 2009 which came into effect on December 12, 2008. In the event that Cabinet approved the partial privatization, the Attorney General's advice has been ignored and will be taken into account at an appropriate time

2) Allegations Against Her Handling of the Airport Radar

Communications and Transport Minister, Dora Siliya is alleged to have overruled the Zambia National Tender Board (ZNTB) and cancelled a duly awarded contract for the supply, delivery, installation and commissioning of a Zambia Air Traffic Management Surveillance Radar system (ZATM-RADAR) at Lusaka and Livingstone International Airports. According to reports, Hon. Siliya's cancellation was meant to accommodate SELEX Sistemi Integrati, a company from Italy, which has been single-sourced, contrary to professional advice from officials in her Ministry, National Airports Corporation (NAC) and ZNTB.

The reports said the tender for the purchase of ZATM-RADAR was initiated and recommended by a technical team comprising officers from NAC and Ministry of Communications and Transport. This was after SELEX offered in February 2008 to supply the equipment at a fixed total price of Euro 13.7 Million following its inspections of the facility at the airport and recommendation that the facility was obsolete and required replacement. Sometime in February last year, the Ministry of Transport and Communications requested for funding from the Ministry of Finance for the purchase of the new radar at Lusaka and Livingstone international airports. In April last year, the secretary to the treasury, in principle, supported the acquisition of this new radar equipment but felt that there was need to consult the ZNTB on whether or not the ministry should single source.

The reports said on the strength of this advice, the PS in the Ministry of Communications and Transport in June submitted bidding documents to ZNTB director general for subsequent advertising on international competitive bidding. The bids were received by ZNTB and were publicly opened in the presence of bidders or their representatives. After that, an evaluation committee was composed from institutions that would be responsible for the equipment who prepared technical specifications. At the time the tender was opened on September 26, 2008, six bids were received from Hua-Jiang Investments with option number one at US $18.9 million and option number two at US $16.8 million, Intelcan at Euro 12.9 million, China LES at US $18.9 million and Ramet C.H.M at Euro 14.9 million. Other bids were from Thales Air Systems S.A with two options: option one was at Euro 9.050 million with option two at Euro 12.6 million. SAAB Systems Limited also put in a bid at Euro 15.8 million.

And at the end of the evaluation process, Thales Air Systems SA was successful as ZNTB's Central Tender Committee authorised to award the contract for Euro 9,050,168; the company's first option. On December 11, 2008, the then PS in the Ministry of Transport and Communications, Dr. Eustern Mambwe wrote to Thales Air Systems SA of France notifying them that they had been awarded the contract for the tender to supply, deliver, install, and commission the ZATM-RADAR at Lusaka and Livingstone airports. Dr. Mambwe even requested Thales Air Systems to acknowledge receipt of the notification for the award of the contract and acceptance of the sum total for option number one. Dr Mambwe is said to have further stated that his ministry, together with justice and finance ministries were open for negotiations on the special conditions of the contract with regard to terms of payment prior to signing of the contract. However, on the same day Hon. Siliya wrote to ZNTB Director General, David Kapitolo cancelling the award of the contract to Thales Air Systems claiming the tendering process did not inspire confidence.

But on December 12, 2008, the Chief Purchasing Officer in the Ministry of Transport and Communications wrote a memo to Siliya advising her to abide by the lawful decision of the ZNTB to award the contract to Thales Air Systems. The chief purchasing and supplies officer stated that a selective tender may be authorised where: (a) there is a proclamation in force declaring a state of emergency or threatened emergency under the Constitution, (b) it is in the interest of public order, public safety or public security, (c) building works of a specialised or complex nature are involved, or equipment to be obtained is highly specialised, (d) the goods and services to be rendered by an educational or training institution, (e) services are to be rendered by an educational or training institution, (f) evidence is furnished that there are no other competing institutions or organisations in respect of the goods or services to be supplied or rendered and that the supplier is the sole franchise holder, (g) the goods or services to be supplied or rendered are to be used in, or are in the nature of research work, (h) equipment to be supplied is technical and is of a nature that requires standardised and inter-changeability of parts; or (i) there has been no acceptable tender from all formal tenders previously invited.

On this same day, Dr Eustern Mambwe had also written to Siliya explaining that the ZNTB process was transparent and dismissed as false assertions from Hon Siliya's alleged anonymous informer claiming that the process was not transparent. However, last month, Hon Siliya instructed Dr Mambwe to ensure that ZNTB cancelled the earlier contract awarded to Thales Air Systems. What was unknown to officials at ZNTB and probably some officials at the ministry was the fact that SELEX had in early December last year offered, to the Director of Civil Aviation, to repair the radar at Lusaka International Airport.

3) Alleged corrupt receipt of K12.5 million public funds

Some documents and information released from Petauke District Council allege that in early August, 2008, Hon. Dora Siliya informed Petauke Central Councillors that funds for drilling two (2) boreholes were allegedly secured and that she intended to assist the peri-urban communities of Petauke. The information further indicates that during the Presidential election in October last year, the Department of Water Affairs allegedly sent a Rig to Petauke to drill the 2 boreholes. The documents further confirm that the rig was allegedly negotiated to drill the 2 boreholes and the conditions were that fuels and allowances to the crew be paid and only Departmental charges be sent to Chipata at 7.5 million kwacha per each borehole. The boreholes were drilled immediately.

The information further goes on to allege that the week after elections in November, 2008, Mr. Boyd Mboyi, the Council Secretary was allegedly given the money for drilling by Hon. Siliya. The information also confirms that Mr. Mboyi paid 9 Million Kwacha for 1200 Litres of Fuel for 2 boreholes from IBO Filling Station; he further paid K4,520,000.00 as allowances to the drilling crew and he paid 15 Million Kwacha as Departmental charges to the Dept. of Water Affairs. The information further explained that Mr. Mboyi also sent a vehicle to Lusaka at Saro Agri - Equipment Ltd to procure or purchase 2 hand pumps for the boreholes at a cost of 5 Million Kwacha and in order for the hand pumps to be installed; ten (10) pockets of Cement were bought for 650 Thousand Kwacha. This brought the total cost of the 2 boreholes to about K34,170,000.00.

The information also indicate that surprisingly, when the Constituency Development Fund (CDF) was received, the Council allegedly started making dubious payments to Hon. Siliya in pretence of refund for the 2 boreholes drilled as indicated above. The letter attached dated 28th November, 2008 written on the Ministry of Communications and Transport letter head and signed by Hon. Siliya 'claiming a refund of ZMK 12.5 Million only' (Document 1). A payment voucher prepared on 16th December, 2008 'being payment made in respect of hand pumps for two boreholes for Talasa 2' is further being availed and tendered in evidence. The Payment Voucher was signed on 17th December, 2008 (Document 2).

The information further alleged that Hon. Siliya has continued receiving cheques from Petauke District Council as refund for the boreholes. The information is alleging that the 12.5 million kwacha paid for 2 hand pumps was fake as these hand pumps could not cost this much. The information available from council sources in Petauke further alleges that the payment was done to simply benefit Hon. Siliya. A check at Saro Agro further confirms that in late 2008, these hand pumps were costing each above 2.5 million and now are costing K3million which confirms that the K12.5 million claimed by Hon. Siliya as confirmed on the Council payment voucher for two hand pumps was fake.

LEGAL ANALYSIS OF THE ALLEGATIONS

1) Allegations against her handling of the RP Capital Partners MOU

The first issue that has to be analysed is; what is the effect of the advice from the Attorney General? One cannot satisfactorily consider or answer the above issue without consulting Article 54 of the Constitution, Chapter 1 of the Laws of Zambia which establishes the important office of the Attorney General and also prescribes his or her functions.

"(1) there shall be an Attorney-General of the Republic who shall, subject to ratification by the National Assembly, be appointed by the President and shall be-..

(b) the principal legal adviser to the Government.

(2) Without prejudice to the general functions under clause (1), the functions of the Attorney-General shall be to-.............

(b) draw and peruse agreements, contracts, treaties, conventions and documents, by whatever name called, to which the Government is a party or in respect of which the Government has an interest;...............

............(3) Subject to the other provisions of this Constitution, an agreement, contract, treaty, convention or document by whatever name called, to which Government is a party or in respect of which the Government has an interest, shall not be concluded without the legal advice of the Attorney-General, except in such cases and subject to such conditions as Parliament may by law prescribe.

.......(7) In the exercise of the power to give directions to the Director of Public Prosecutions conferred by clause (7) of Article 56, the Attorney-General shall not be subject to the direction or control of any other person or authority".

Clause 3 above is instructive of the effect of the advice from the Attorney General in issues of contracts between the government of the Republic of Zambia and any other party. According to this Clause, the advice is mandatory and no one has a choice but to strictly follow what the Attorney General has advised them to do. Thus, in an event that the Minister of Communications and Transport totally disregarded the advice from the Attorney General means that she directly went against the provisions of the Constitution, Chapter 1 of the Laws of Zambia which also happens to be the country's supreme law which cannot be dispensed with by citing another inferior law as laid down. This is adequately demonstrated in landmark cases such as that of CHRISTINE MULUNDIKA AND 7 OTHERS v THE PEOPLE (1995) S.J.; S.C.Z. Judgment No. 25 OF 1995 or S.C.Z. Appeal No. 95 OF 1995 where it was held that Section 5(4) of the then Public Order Act Cap 104 contravened Articles 20 and 21 of the Constitution and was null and void. This was also affirmed in another celebrated but unreported case of RESIDENT DOCTORS ASSOCIATION AND 51 OTHERS v THE ATTORNEY GENERAL (On the 26th September 2002 and 28th October 2003). The case of LAW ASSOCIATION OF ZAMBIA AND OTHERS v THE ATTORNEY-GENERAL (2001/HP/0382) also puts this trite principle of law very clearly. Thus, the actions by the Minister of Communications and Transport should be declared null and void as they are unconstitutional.

On the argument by the Vice President aired on Zambia National Broadcasting Corporation (ZNBC) on 16th and 17th February, 2009 that the Minister of Communications and Transport in fact had the blessings of the Solicitor General, this argument does not stand as Article 55 of the Constitution is very clear on issues where the Solicitor General acts on behalf of the Attorney General. According to Clause 5 of Article 55;

"Any power or duty imposed on the Attorney-General by this Constitution or any other written law may be exercised or performed by the Solicitor-General-

(a) Whenever the Attorney-General is unable to act owing to illness or absence; and

(b) In any case where the Attorney-General has authorised the Solicitor-General to do so".

It is very clear that since the Attorney General had already provided legal advice on the matter and a strong recommendation, it is against the above constitutional provisions to offer contradictory advice that suggests overruling the Attorney General by the Solicitor General. There is no contention that there was no legal justification to ignore the Attorney General's advice over the partial privatisation of ZAMTEL. To buttress this argument even further, the Public Procurement Act No. 12 of 2008 which became operational on 8th December, 2008 provides in section 54(2) as follows: 'No contract, purchase order, letter of bid acceptance or other communication in any form conveying acceptance of a bid or award shall be issued prior to........ (d) confirmation that funding is available for the contract (e) any other approval required, including the approval of the contract by the Attorney General (3) any contract, purchase order, letter of bid acceptance or other communication issued contrary to subsection (2) is void".

Section 54 (2) (d) brings into light issues that are also highlighted clearly in the Constitution as it provides in its Article 115 as follows:

"(1) Moneys shall not be expended from the general revenues of the Republic unless-

(a) the expenditure is authorised by a warrant under the hand of the President; (b) the expenditure is charged by this Constitution or any other law on the general revenues of the Republic; or

(c) the expenditure is of moneys received by a department of government and is made under the provisions of any law which authorises that department to retain and expend those moneys for defraying the expenses of the department.

(2) A warrant shall not be issued by the President authorising expenditure from the general revenues of the Republic unless-

(a) the expenditure is authorised by an Appropriation Act;

(b) the expenditure is necessary to carry on the services of the Government in respect of any period, not exceeding four months, beginning at the commencement of a financial year during which the Appropriation Act for that financial year is not in force

(c) the expenditure has been proposed in a supplementary estimate approved by the National Assembly;

(d) provision does not exist for the expenditure and the President considers that there is such an urgent need to incur the expenditure that it would not be in the public interest to delay the authorisation of the expenditure until such time as a supplementary estimate can be laid before and approved by the National Assembly; or

(e) the expenditure is incurred on capital projects continuing from the previous financial year and is so incurred before commencement of the Appropriation Act for the current financial year..."

Thus, the question that Hon. Siliya might have to answer is whether there was any availability of funds allowing her office to go ahead and sign the MoU in total disregard of legal advice.

As if the above issues are not enough, the Honourable Minister of Communications and Transport thought it fit to go ahead and issue a ministerial statement in Parliament which was so defensive and in most parts could be said to have been blatant lies. Hon. Siliya told Parliament that she signed an MoU with RP Capital which is not legally binding. However, Clause 2.1 of the MoU that Dora signed on December 22, 2008 states, "that RP Capital agrees to and is appointed by the GRZ to provide the following services to GRZ: (i) consultation and expert advice in connection with valuation of ZAMTEL for purposes of the potential ZAMTEL sale; and (ii) assistance in negotiations with prospective acquirers in conjunction with the GRZ team (iii) project management of a potential ZAMTEL sale."

In Clause 2.3 of the same agreement, the document says, "This MoU constitutes a mandate from the GRZ to appoint RP as its consultant in respect of its valuation and potential ZAMTEL sale and provide the services to the GRZ under the terms hereof and for considerations specified in section three (3). Clause 8, which appears on the page that Hon. Siliya appended her signature on, states: "This MoU shall come into effect on the date of its signature by the parties." Having signed, on December 22, 2008, a document that says what we have quoted, is Hon. Siliya honest in going to Parliament and saying that the MoU she signed was not legally binding?

In Clause 7.4, the MoU states, "on behalf the Republic of Zambia and its various agencies or legal entities...irrevocably waives, and undertakes not to invoke, any sovereign or other immunity from jurisdiction or execution which it may have whether abroad or in the Republic of Zambia." After looking at all these provisions of the MoU that was signed on behalf of the people of Zambia by Hon Siliya, one does not need to be an intellectual to know that the document binding. There is no need to waive the sovereign immunity of Zambia if a document is non-binding. The only reasonable cause a document would require to waive the sovereign immunity of any country is because it is a binding document and RP Capital want to be able to sue the Zambian government in a foreign court if there is any breach on the clauses of the MoU.

Hon Siliya also told Parliament that the advice of the Attorney General's chambers was taken into account before signing the MoU. This is a blatant lie because the Attorney General in his letter dated January 5, 2009 as quoted above was very clear and proves to the contrary of what the ministerial statement said.

The Minister also told Parliament that she actually did follow tender procedures. The simple question is: how did she follow tender procedures? It is not clear that the tender committee at the Ministry of Communications and Transport sat to consider the engagement of RP Capital. Section 12 (1) of the Procurement Act provides that; 'A procurement entity shall be responsible for the management of all procurement activities within its jurisdiction in accordance with this Act'. Thus, in the absence of such an entity in this case, it simply goes to show that the Honourable Minister misguided not only herself but also the whole House (Parliament) when she reported that the procedures were followed.

From the above, it is clear that there is a high possibility that the ministerial statement which the Minister of Communications and Transport gave to Parliament was not truthful and sincere. To prevent such untruthfulness and lies coming from a person who is not only a Member of Parliament but also holding high office in the Republic in the name Minister, there is need to invoke the provisions of Section 14 of the Parliamentary and Ministerial Code of Conduct Act, Chapter 16 of the Laws of Zambia which talks about setting up a tribunal. It would be justifiable to have a tribunal because certain things that might have not been told truthfully might have to come out during the proceedings of the tribunal.

2) Allegations Against Her Handling of the Airport Radar

The issue here is; what should be the effect of any person overruling a decision of a duly constituted tender Committee? Section 12 (2) provides that, "Any functions related to procurements shall be carried out by persons qualified and knowledgeable in procurement in accordance with the Zambia institute of purchasing and supply."

Section 12(3) criminalizes any person who contravenes subsection (2) as committing an offence and is liable, upon conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both. Thus, in an event that the Minister of Communications and Transport disregarded a decision of a duly constituted team, her actions might be bordering on a criminal offence punishable accordingly.

Labels: CORRUPTION, DORA SILIYA, PRIVATISATION, ZAMTEL

posted by MrK @ 8:03 PM