Dora ignored Legal advice – Sichinga

Dora ignored Legal advice – Sichinga
Written by Maluba Jere
Tuesday, March 31, 2009 4:41:51 PM

SOLICITOR General Dominic Sichinga yesterday told the Judge Dennis Chirwa Tribunal that his legal opinion on RP Capital Partners of Cayman Islands was disregarded. And Sichinga testified that he was not aware that a second Memorandum of Understanding (MoU) between the Zambian government and RP Capital Partners had been executed.

This is in a matter where former communications and transport minister William Harrington and ten civil society organisations petitioned Chief Justice Ernest Sakala to set up a tribunal to investigate alleged corruption and abuse of office involving communications and transport minister Dora Siliya.

Harrington and the ten civil society organisations urged justice Sakala to probe Siliya for allegedly breaching the Parliamentary and Ministerial Code of Conduct in her engagement of RP Capital Partners to value Zamtel’s assets before partial privatisation and her cancellation of a tender that was awarded for the installation of radars at the Lusaka and Livingstone international airports. Siliya is also being probed over her alleged claims of K12.5 million from Petauke District Council as refund for two hand pumps for two boreholes sunk in Nyika Ward when in fact the hand pumps were procured at K5 million.

Sichinga, who was led in examination in chief by tribunal chairperson judge Chirwa, said the legal advice on the RP Capital MoU was not complied with.

"So quite clearly your opinion was not complied with, it was disregarded, wouldn't you agree?" asked one of the petitioners' lawyers Bonaventure Mutale as Sichinga responded: "I am agreeing, yes."

Mutale observed that Sichinga's legal opinion though quite detailed had been literally torn apart in the MoU executed by Siliya.

He asked Sichinga if he realised that all his recommendations had not been considered in the MoU that was signed to which Sichinga responded in the affirmative.

"Your letter of November 25, 2008 is four pages. Would you agree that all those points raised in your opinion have not been considered in P1 [MoU]?" Mutale asked.

Sichinga agreed that the points he raised in his legal opinion of November 25, 2008 had not been considered.

He told the tribunal that he saw several drafts of the same MoU but he had not seen the final draft of the signed document.

Sichinga explained that he was in consultation with Attorney General Mumba Malila over the matter and that he last dealt with RP Capital Partners in his letter of December 5, 2008.

He said Malila was compelled to write a letter nullifying the MoU after he was informed by his representative from the Zambia Development Agency (ZDA) who raised concerns on the process.

"I was in agreement with the Attorney General. We have verbal consultations and he informed me that there are concerns 'that our advice has not been heeded'," Sichinga said. "And I understood that everything I have said has not been taken into consideration...and I was not around when the MoU was signed, I was out of the country."

He said he agreed with Malila's letter dated January 5, 2009, which nullified the MoU, saying his understanding was that the legal advice had not been complied with.

However, Sichinga explained that some of his concerns were addressed.

This prompted tribunal member judge Peter Chitengi to ask whether the legal advice is only rendered on some issues or all of them.

"When you rendered the advice, did you want it on some of the issues or is it everything that has to be followed?" judge Chitengi asked.

Sichinga said the legal advice was on everything.

He said he never interacted with technocrats in the Ministry of Communications and Transport regarding the RP Capital MoU.

He further told the tribunal that RP Capital would be paid US$ 2 million once Cabinet approved the sale of Zamtel.

Sichinga told the tribunal that ministers were not at liberty to ignore the legal advice.

He said in his legal opinion to the ministry, he proposed that an amendment be made to the parties' clause and literally redraft the proposal.

He said that particular clause which made reference to an individual and not the ministry was complied with in accordance with his proposal and that ZDA, which was initially omitted was later included.

Sichinga told the tribunal that he would have been happy and would have allowed his client to proceed and sign the MoU if the clauses referring to the government paying RP Capital US$ 2 million and the one on the inclusion of ZDA were amended.

Asked by defence lawyer Eric Silwamba to explain why in Malila's letter to the client [Ministry of Communications and Transport] there was no reference to his letter of November 25, 2008, Sichinga said: "I am not sure the Attorney General might be the one to explain. As I said, we coordinated in this matter and what moved him was the complaint from his representative at the ZDA. ...In fact, when I saw the draft, ZDA was a party and that gave me the satisfaction because the issue of sale had to include ZDA."

Silwamba then asked Sichinga whether Malila did not have the benefit of appreciating this transaction because unlike him [Sichinga], he did not meet with Siliya to discuss the matter.

Sichinga responded: "It is difficult for me to answer that question because he is the principal legal advisor...after he I had done my work, he could have seen things differently."

He told the tribunal that there were cases when the ministry had given advice to a client only to realise later that they had made a mistake.

Sichinga said Malila based his opinion on his [Sichinga’s] letter of November 21, 2008 and the information he got from ZDA.

He also explained that when the ministry ignores the legal advice from the Attorney General's chambers, there were sanctions to that effect.

Silwamba asked Sichinga what sanctions could be slapped in an event that the client ignored the legal advice.

Sichinga explained that since the government is the client of the Attorney General's chambers, the head of state would be able to act because he is the appointing authority.

At this point, judge Chitengi asked Sichinga what the authors of the legal advice do in such cases and Sichinga responded: "Once a client has ignored the advice, it is difficult to say 'I told you' so we try to take corrective measures, we defend our client to the latter."

Sichinga also told the tribunal that he was not aware that another MoU was signed on January 9, 2009 after the initial document on December 22, 2008.

Sichinga said he only learnt of that fact from the tribunal proceedings.

Earlier, Sichinga said his responsibilities included passing through bills presented to Parliament and drafting agreements for the government among other duties.

He told the tribunal that he received a call from Siliya requesting him to discuss the opinion he had rendered in a letter dated November 25, 2008.

"She informed me that she had understood the opinion contained in that letter," he said. "However, she thought that we have missed the point of what was trying to be achieved. At that particular point, it was not the sale of Zamtel but that the ministry was trying to do an internal evaluation of assets of Zamtel and the basis of that evaluation is what the ministry would take to Cabinet.

"It was on that understanding that we were asked to re-look at the opinion we had rendered on 21st November 2008."

Sichinga said he then reviewed his opinion based on that understanding as contained in a letter dated November 25, 2008.

"What I was saying is that the ministry is concerned that they did not want to be bound by a contract... so I looked at the provisions," Sichinga said. "In my letter of the 25th November, I said it did not matter what the parties called the understanding [MoU] but that the parties should be legally bound."

He said he was also briefed that the US$ 2 million referred to in the MoU would only be paid in an event that Zamtel was sold adding that for the purposes of evaluation, the ministry's liability would only extend to the amount of US $50,000.

"And in my letter, I addressed that caution is exercised to ensure that those proposed costs were within the ministry's threshold for the tender processes," Sichinga said. "I also advised that reference to the sale of Zamtel be excluded."

In February this year, Siliya in a ministerial statement to Parliament revealed that the government signed the MoU with RP Capital Group after the advice of Sichinga.

"I wish to inform this House that it was after the advice of the Solicitor General who dealt with issues pertaining to the MoU that we went ahead to sign the MoU on 22nd December 2008, taking into account all concerns raised," Siliya said.

A few days later, Vice-President George Kunda told journalists at a press briefing that Sichinga rendered his final opinion clearing the RP Capital MoU for execution or signing.

"This MoU was dealt with by an Acting Principal Counsel and the Solicitor General before the Attorney General dealt with the matter. The Acting Principal Counsel on behalf of the Solicitor General on 21st November, 2008 rendered his [her] opinion on the MoU. This opinion was rendered in the name of the Solicitor General. The Solicitor General rendered a further opinion on 25th November, 2008 on the same Memorandum of Understanding. On 5th December, 2008, the Solicitor General rendered his final opinion clearing the MoU for execution or signing," Vice-President Kunda said. "It must also be emphasised that the Solicitor General held further consultations with the minister of communications on this MoU. The MoU was finally signed on 22nd December, 2008 by all the parties."

Last Wednesday, Siliya told the tribunal that assertions that the December 22 MoU did not take Sichinga's advice into account were not true.

And the tribunal has adjourned to April 7, 2009 and Malila is expected to testify on the same day.

Judge Chirwa has since told the parties to make their submissions to the tribunal on the day it resumes sitting.

"Gentlemen, I want to suggest that you start preparing your submissions and when we call the Attorney General, we want the submissions," said judge Chirwa. "We can safely adjourn the matter to 7th April."