Maravi

Dora tribunal sittings continue

Dora tribunal sittings continue
Written by Mwala Kalaluka
Friday, March 06, 2009 6:23:18 PM
From Thursday

Mutale then asked Harrington if a minister had any authority to sign on behalf, especially during his tenure. Harrington: I at that time had no authority to sign on behalf of the government...may I also add, my lord, that is subject to confirmation, if in case any parastatal company...that Cabinet has made a decision that the company is due for privatisation then that company is detached from the ministry.

Therefore, it falls under the Zambia Privatisation Agency (ZPA), now Zambia Development Agency (ZDA). If indeed Zamtel has been tranched, then the appropriate authority to deal with the issue of privatisation...should be done through the Ministry of Commerce, Trade and Industry, under which the ZPA falls.

Mutale: That is all for chief. Witness is available for cross-examination.

But civil society advocate, Mwitwa indicated to continue with examination-in-chief.

Mwitwa: During your tenure, the procedure was that before any contract was signed the legal advice of the Attorney General would have to be sought. Did you have the discretion as a minister to ignore that advice?

Harrington: I did not. What would normally happen...if I had dispute with the legal advice given to me by the Attorney General, I would be obliged to take it to Cabinet as opposed to using my discretionary powers to overrule the advice of the Attorney General.

Mwitwa: You also mentioned that during that time there was a tender committee within the Ministry of Communications and Transport. What was your role in that committee?

Harrington: I had absolutely no role. My role was to formulate polices and ensure that the policy was implemented by the technocrats in the ministry, through the permanent secretary in the ministry. I was only informed through an internal memo of what decision had been made by the ministerial tender committee.

Mwitwa: I am most obliged. I have no further questions.

Silwamba: You confirm that you are the author of this letter dated 16th February 2006. In your letter of complaint under one, you allege that part two of the code has been breached because there was an award of a contract to RP. Have you seen a copy of that contract? Do you have a copy of that contract?

Harrington: No...I was present yesterday when the lawyers representing...

Silwamba: I think my question was very simple...

Harrington: No.

Silwamba: Have you seen that contract?

Harrington: I have not seen it...I believe the lawyers representing me...

Silwamba: No. You are the complainant in this tribunal. This tribunal has been set using tax payers money because you are the complainant.

Harrington: The Parliamentary and Ministerial Code of Conduct is quite clear. It says under Section 13 (1), an allegation that a minister has breached part two may be made to the Chief Justice by any person in writing giving particulars of the breaches alleged. It does not say I should have any evidence at that stage of writing...that I should actually have any document.

Judge Chitengi: I have said you have hired a very able man as lawyer. He is a man of great zeal. These are the matters he will argue on. Do not bother yourself to argue the law...the question is that have you seen this contract? The answer is no.

Harrington: No.

Silwamba: What about the legal opinion of the learned Attorney General of the Republic of Zambia! Did you see a copy of it?

Harrington: I am relying firmly on what came from the media...I have no cause to believe that the Attorney General was misquoted.

Silwamba: You are saying that is your primary source of information?

Harrington: Yes.

Silwamba: You said that any minister has no authority to sign on behalf of the government?

Harrington: To the best of my knowledge...

Silwamba: You said the minister has no authority to sign on behalf of the government?

Harrington: The minister, strictly speaking, has no authority to commit government through contracts of this nature.

Silwamba: I won't belabour the question. I will be happy with the answer, 'strictly speaking'. The answer has been massaged. Now Mr Harrington you said you were a minister in the Ministry of Communications and Transport between 94 and 95?

Harrington: There about.

Silwamba: Not exactly 96?

Harrington: There about.

Silwamba: You have to be very clear, because that is very critical because your complaint is about ignoring the advice of the Attorney General...

Harrington: I can't recall the exact date, But it was that general period. But I can confirm that I was minister of communications and transport. I do recall to the best of my knowledge that it was about 94. It was not a long period. I do not think it extended into three years.

Silwamba [to the tribunal]: I know that Mr Harrington is a layman, if I am being unfair you will guide me...

He then asked Harrington to explain the basis of his complaint that the advice of the Attorney General had been ignored in the RP Capital Partners contract.

Harrington: My understanding of the role of the Attorney General, as a member of Cabinet is to guide Cabinet generally...particularly over legal matters or matters with legal implication so that ministers in their individual official capacity do not commit government and the Zambian tax payer in deals or contracts that may not be in the interest of government...and the people of the Republic of Zambia and that is where I anchor my statement that indeed it is proper on ministers...to respect the legal opinion and legal advice of the learned Attorney General.

Silwamba: I take it that here you are referring to the provision of the Constitution, Article five. I will read it to you...can you confirm if it is the one or not?

Harrington: Your lordship, I do not have a copy of the Constitution.

Silwamba: You came to talk about your experience as a minister. Didn't you have an opportunity to acquaint yourself with the provisions of the Constitution?

Harrington: I did not pay particular attention to that particular constitutional provision.

Silwamba then told Harrington that he was then not aware of the time when the advice of the Attorney General is implemented but Mutale complained that Silwamba's questions were not fair going by the nature of the proceedings because his client did not have the document that Silwamba was directing him to.

However, Judge Chirwa overruled Mutale and said there was a basis on which Silwamba was basing his questions on.

Silwamba: Circumstances that applied to you, they applied to other people that became ministers...

Harrington: To the best of my knowledge, it was standard practice or standard procedure that the controlling of the ministry would consult the Attorney General...seeking legal and after response from the Attorney General the controlling officer, in this case the Permanent Secretary, would advise the minister on the legal opinion from the office of the Attorney General's Chambers.

Silwamba: Mr Harrington, you did tell this honourable tribunal that in terms of privatisation that a company had to be tranched; that is the word you used.

Harrington: No. I did not say that, I am being misquoted...in the event that Zamtel was tranched for privatisation, the Ministry of Communications and Transport would have or should have no interference in the privatisation process, which should now fall under the Ministry of Commerce, Trade and Industry. That is all I said. I hope I have made myself clear.

Silwamba: Not yet. Mr Harrington, you are saying you are speaking with experience as minister of commerce and trade. I want to ask you, who did the tranching?

Harrington: In the case of Zamtel, the Ministry of Communications and Transport would write to Cabinet, proposing to Cabinet that Zamtel should be tranched for privatisation and that memo would outline. In the case I would expect that indeed Cabinet followed the procedure. I am not aware if this was done.

Judge Chitengi: The question was simply, who did the tranching?

Harrington: In fact, I should have corrected myself slightly to say that the Ministry of Finance because of the financial implications involving this issue. Subject to Cabinet approval then a company would be tranched.

Silwamba: If a company is due for privatisation, who does the tranching?

Harrington: I do not know...to the best of my knowledge, government does the tranching. Cabinet does the tranching.

Silwamba: That is the answer, Cabinet, according to you.

Then Silwamba asked Harrington if he had ever come across the word ‘scheduling’, to which he responded that he was only conversant with the word ‘tranching’ although he gave an explanation of what he generally understood by the word scheduling.

Silwamba: No further questions. My colleague Mr Mukata...

Mukata: Did you have occasion to interact with the Attorney General's Chambers. Did you call upon the advice of the Attorney General?

Harrington: Your lordships, is a question to me personally or the ministry?

Judge Chitengi: You as the minister.

Harrington: We met at Cabinet. Yes, that was the interaction we had, during Cabinet meetings and that was the extent of our interaction.

Mukata: Were you not concerned about the legal involvement that your ministry was getting into...

Harrington: At no time do I ever recall that...?

Mukata: Can the witness answer the question?

Harrington: Your lordships, I beg that he rephrases his question so that I can understand what type of answer he expects of me.

Mukata: Did you sign contracts as a ministry? Did the ministry procure services?

Harrington: Talking about the specific portfolio mandated to me, I do recall that as and when necessary we would seek the legal advice of the Attorney General through the tender committee in the ministry if and when necessary to seek such legal advice on behalf of the ministry.

Mukata: In your examination-in-chief, you mentioned the term Attorney General's Chambers. I believe you do understand that term.

Harrington: What I am fully aware of is the Attorney General occupies a specific office and the Solicitor General also occupies a specific office. The Attorney General has legal experts who comprise a chamber.

Mukata: Is the Solicitor General part of the Chamber of the Attorney General?

Harrington: In my simple understanding, I understand that he is the subordinate. He is part in a sense, that is he is part of the Attorney General's Chambers...

Mukata: You say that the Solicitor General is subordinate to the Attorney General?

Harrington: That is my understanding...I would have expected in the interest of procedure that indeed the Solicitor General should consult the office of the Attorney General. Normally, your lordships, when a ministry consults the Attorney General, correspondence is addressed to the Attorney General for legal opinion. That is what usually happened during my time. Now it maybe different, I do not know.

Mukata: Are you aware that the Solicitor General can assume, on an acting basis, the responsibility of the Attorney General that there are instances in the Constitution?

Harrington: It is up to the learned lawyer to actually confirm...in this particular incident I am not aware if the Attorney General was actually delegated that responsibility to his subordinate.

Mukata: Or that maybe he was absent...

Harrington: If I am made to believe and understand that...

Mukata then asked Harrington if in the absence of the Attorney General, his Chambers would be closed, but Harrington said he did not ever recall in his ministerial days ever having direct communication with the Attorney General on an issue that was done by the technocrats in the ministry.

Mukata: Are you aware of Honourable Siliya's ministerial statement as well as his Honour the Vice-President's press statement on the issue of RP Capital Partners...since it was in the public domain?

But Mutale said the rule of fairness would have required Mukata to furnish with the documents he was talking about if was to make any comment on it.

Mukata: In any case, I will show him the document.

Harrington: What I am aware of is that Honourable Siliya issued a ministerial statement on the floor of Parliament and extracts of that statement were generously covered by the media.

Mukata: Yet subsequently, you made out a complaint because obviously you were not satisfied with the extent of that statement?

Harrington: What I can agree to is that which is mentioned in the letter of complaint to the Acting Chief Justice in which I make no reference to the statement.

After a few interjections, Harrington said he was not satisfied with the generality in Siliya's ministerial statement and the fact that accusations and counter-denials followed the issuance of the above statement, especially in the media and the government respectively.

Harrington: I was not satisfied with the explanation given in the statement.

Mukata: Which particular portion were you not satisfied with so that we can walk through them?

Harrington: I was not satisfied with the generality of the statement.

Mukata: The minister in her ministerial statement did allude to the fact that the Solicitor General did give conclusive advice and gave a go ahead. What are you uncomfortable with over that position?

Harrington: I can't rely on a statement given in Parliament by the Honourable Minister.

Mukata reminded Harrington that he had been a parliamentarian and he asked what he consider an important document between a newspaper article and a ministerial statement. Harrington said he used to issue ministerial statements in Parliament but that even then the public would at times continue to perceive it as insincere.

Mukata: There were some ministerial statements in Parliament where you gave falsehoods.

Harrington: They would be questioned in large number and the sincerity of the minister continued to be questioned, hence my complaint.

Mukata: The position you have taken is that it was against the professional advice of the Attorney General. If it was indicated to you that in fact did rule...what would be your position with regard to your position that there was no professional advice from the office of the Attorney General?

Harrington: I would be happy to see that clause. As of now I reserve my comment.

Mukata: Would it in your judgment extinguish your suspicion that the Attorney General Chamber's advice was not sought?

Harrington: In this particular case whether the advice was given or not if he did and can be proved that there is authentic evidence...I would be pleased to see that...

Labels: COURTS, DORA SILIYA, PRIVATISATION, WILLIAM HARRINGTON, ZAMTEL

posted by MrK @ 6:24 PM