Attorney General’s advice should be taken very seriously – Malila

Attorney General’s advice should be taken very seriously – Malila
Written by From yesterday
Monday, April 13, 2009 4:01:45 AM

Mwitwa: Are you familiar with that particular signature?
Malila: I have seen it before but I can’t say for certain whose it could be.

Mwitwa: Perhaps I’ll move away from that particular issue. With regard to the contents of the MoU with two signatures [Ministry of Communications and RP Capital], are you able to confirm that the contents are similar to exhibit P1 and P57?
Malila: Similar yes. The same, I don’t know.

Mwitwa: In relation to the second MoU of 9th January 2009, you told the tribunal that you had never seen it until February or March this year?

Malila: Yes, correct.

Mwitwa: From the nature of the document, was it necessary for it to have been referred to your office?

Malila: Of course therefore ordinary course of events it is supposed to be approved by us as well. My understanding is that it sought to make some additions from our opinion.

Mwitwa: For clarity and confirming exhibit P26, are you able to confirm that the handbook currently in use, is it the latest version?

Malila: I am not able to confirm that position.

Mwitwa: Just take you to exhibit P2 your letter of 5th January 2009, I noticed that this letter was referred to the permanent secretary Ministry of Communications and Transport and yet in paragraph two, you mention that the document [MoU] was signed by the minister of communications and transport. My question is: why was it specifically addressed to the permanent secretary who was not a party to the signing?

Malila: The permanent secretary is the chief advisor in terms of administration to the minister and the initial instructions came from the office of the permanent secretary although I copied the letter to the minister…the permanent secretary and I had conversed over something else and I brought up the issue so I indicated that I was writing to his ministry and he indicated that it was better I write to him and I copy the minister.

Mwitwa: What you have said, would I be correct to state that given the role the permanent secretary plays in the ministry, he should have been the rightful person to spearhead this particular transaction?

Judge Chirwa: That question is irrelevant.

Mwitwa: I’ll abandon it. In relation to advice sought from your chambers, is it sought as a matter of routine?

Malila: Then my office would be irrelevant. No my office is there to give guidance on legal advice and if it is given, it is expert advice which should be taken very seriously.

Mwitwa: In relation to exhibit P2, do you still stand by your opinion in that particular document?

Malila: If RP is already doing the job, then quite clearly the MoU has not been declared as a nullity. On the matters that I have alluded to, I still stand by my opinion save for the last paragraph… I was making a suggestion. With these few facts, it is difficult to define the relationship between the government and RP Capital.

Judge Chirwa: We take 15 minutes break.

After the break, the tribunal resumes sitting.

Judge Chirwa: Yes, State Counsel.

Silwamba: Obliged my lord. Learned state counsel, can you confirm to the lordships that on 12 November you received a letter from Mr Victor Mbumwaye instructing your chambers?

Malila: Yes, my lord.

Silwamba: And he was acting permanent secretary?

Malila: Yes.

Silwamba: Who was your client in this matter?

Malila: The client in this matter was ministry of communications and transport.

Silwamba: And sir, you confirm that you delegated that matter to learned Solicitor General?

Malila: Yes, I did.

Silwamba: And the following day, you left the jurisdiction?

Malila: Yes I did.

Silwamba: Learned Attorney General, just a bit of sequence, please show the Attorney General exhibit P4. That is the letter authored by the acting principal counsel?

Malila: Yes, it is.

Silwamba: And if you look at the second paragraph, she is acting on instructions of the Solicitor General?

Malila: Yes.

Silwamba: I would like you to look at paragraph 13 on page four of that letter, are you able to read?

Malila reads to the tribunal.

Silwamba: Is it correct to understand as giving conditional clearance subject to those amendments?

Malila: Yes.

Silwamba: Please show the Attorney General exhibit P60. Please tell the honourable tribunal when did you first see that letter?

Malila: As I said, all documents relating to this matter were first seen when I was given the file to review between 25 to 30 December.

Silwamba: Is it your evidence that before the letter was dispatched by the Solicitor General on 25th November, you didn’t have sight of it?

Malila: No.

Silwamba: You told their lordships that you noticed in the letter a reference to a meeting with the minister?

Malila: Yes.

Silwamba: When did you first learn of that meeting with the minister?

Malila: Sometime when I returned from where I had gone. The Solicitor General gave me a briefing and at least two discussions we had, one of them was through teleconference. I can’t remember the precise date.

Silwamba: Are you able to tell what the briefing was about?

Malila: In his briefings, the Solicitor General essentially reported that in this particular matter, he and Mrs Kwenda Mweene had made suggestions for amending the MoU and that some of them had been taken on board and that he had discussions with the minister regarding this MoU in which clarification was being sought on the opinion which had been rendered earlier. At that time, the Solicitor General was not aware that the MoU had been signed.

Silwamba: The MoU was signed on 22 December ...briefings prior to signing?

Malila: I can’t recall.

Silwamba: Did the Solicitor General tell you that the minister thought you had missed the point?

Malila: No, he didn’t.

Silwamba: Did the learned Solicitor General tell you that he had decided to relook at the earlier opinion after the meeting?

Malila: He told me he had to write another letter to clarify the opinion that had earlier been rendered.

Silwamba: By ‘clarify’ you are confirming he never told you that he had decided to look at the opinion differently?

Malila: No.

Judge Chirwa: Yes.

Silwamba: State Counsel Mutale asked you about the letter of 25 November and your reply was that it didn’t contain many substantive issues?

Malila: That was my view yes.

Silwamba: In paragraph two, he proposes to amend the parties clause?

Malila: Yes. One of the issues he emphasised on was one; the mention of the name of the minister and ZDA had been left out. Those were the issues he emphasised to me.

Silwamba: In paragraph seven, look at it, the Solicitor General is cautioning on the threshold of the ministry?

Malila: Yes.

Silwamba: So, he was alive of the tender process of that paragraph seven?

Malila: That doesn’t come out.

Silwamba: Read paragraph seven.

Malila then reads the paragraph which was emphasising the need to be cautious of the ministry’s threshold.

Silwamba: Two things learned Solicitor General is saying, if you are to sell…read cabinet approval.

Malila: Is that your view?

Silwamba: In this letter.

Malila: To me that didn’t come out as meaning before the sale, there has to be Cabinet approval but initial consultation. With the initial consultation, the sale is a consultation…I don’t think so

Silwamba: It was actually quite misleading.

Malila: Unclear to me. In my advice on 5th January, I went to great lengths that the provisions of the opinion were not complied to.

Silwamba: You actually preferred the initial opinion?

Malila: Yes.

Silwamba: Authored by Inonge Kwenda Mweene?

Malila: Absolutely.

Silwamba: If you may read the last sentence in the letter of the 25th November. [Malila reads].

Silwamba: Would you confirm that conditional clearance is being given?

Malila: Yes. He was in fact saying the advice given including the earlier one be taken into account before execution.

Silwamba: Thank you. Learned Attorney General please look at P61, the letter of 5th December authored by learned Solicitor General.

Malila: Yes.

Silwamba: It’s a short letter so I want us to go through it. So he had received the draft the previous day, please read paragraph two.

Malila reads the part to the tribunal.

Silwamba: So on that date, the Solicitor General acknowledges the MoU had been revised taking into account some of the points?

Malila: Yes.

Silwamba: What is your understanding? Doesn’t he narrow issues to two things?

Malila: Yes, in that letter.

Silwamba: Attend to these two issues then you may proceed and sign. If these two issues were taken into account, they would have complied?

Malila: Not necessarily. First would have complied with issues raised in the opinion of 21, 25 November and 5 December.

Silwamba: So would you blame a client who complies?

Malila: I wouldn’t. That is why I went back to see…there was no compliance.

Silwamba: So, who do you blame, your chambers?

Malila: No, I blame the client.

Silwamba: Let me put it differently, the letter of 21 November suggests certain things trying to be done. The letter of 25 November, the Solicitor General in his letter of 25, concludes that after the advice rendered, the MoU can be signed on 5 December, says yes I agree…when the signed document comes back, it confirms that it did not comply with the previous advice.

Malila: That is where my letter of 5 January 2009 comes in…What was ultimately signed was a document that did not comply with the advice given.

Silwamba: How many files did the Solicitor General show you?

Malila: I saw the initial draft and one other draft and the partially signed one. Three.

Silwamba: Three?

Malila: Yes, and I must state I was not interested in the MoU that came between but the one that was sent to the ministry with advice and the final one which was signed

Silwamba: You told the lordships that you decided to make it clear by authoring a letter of 5 January?

Malila: Yes, my lord

Silwamba: Can you confirm Attorney General that the letter was authored after the MoU was signed?

Malila: Yes.

Silwamba: If you look at page four of your letter, paragraph eight, you are giving counsel that before the sale, Zamtel needs Cabinet approval?

Malila: Yes.

Silwamba: At that time, the Solicitor General advised you that they were not dealing with the sale but evaluation?

Malila: No, he didn’t. But even if he did, it would have required further evaluation of Zamtel…talking about the sale and evaluation of assets.

Silwamba: In paragraph three…you were talking about the Ministry of Finance Incorporation Act.

Malila: Yes.

Silwamba: Was that issue ever raised in the letter of 21, 25 November and 5 December?

Malila: No, in fact some of the issues raised were not covered by any of the letters written. As the boss, I have every right to make amends and bring it to the attention of the client.

Silwamba: Very correct but raising it after 22 December?

Malila: Yes.

Silwamba: Attorney General, you told the tribunal that Ms Patricia Jere briefed you that the board had serious reservations and thought that your chambers didn’t do a good job. Did you find out whether at the meeting they eventually agreed to sign the MoU?

Malila: Not on that date, my understanding was that the meeting ended with an agreement that my chambers should re-examine the MoU and when I said the issue was being looked at by the Solicitor General, she said the meeting thought I should personally look at the issue because they thought things were not properly addressed.

Silwamba: Would you know if they eventually resolved to execute the MoU?

Malila: When I saw the addendum-separate agreement relating to the same, I inquired as to whether the board had resolved to sign the MoU; I was informed that if the board made that, she was not aware.

Silwamba: I can confirm that the MoU was executed by ZDA.

Malila: Yes.

Silwamba: For both 22 December and 9 January 2009.

Malila: Yes.

Silwamba: Attorney General, I would like you to look at the MoU, the first one [December 22] clause 3.7 and 4.2, do those provisions govern the termination of the contract?

Malila: 4.2 yes provides for termination. 3.7 deals with the issue of payment after termination.

Silwamba: So you can confirm that this MoU is terminable by either party? Finally in your letter of 5 January 2009, where you say the signed MoU be treated as a nullity. Please tell the tribunal, are you giving a directive or rendering advice?

Malila: The paragraph is very clear, it says advice.

Silwamba: Not directive?

Judge Chirwa: Thank you very much Attorney General. State Counsel, what is the position, the tribunal is not calling any more witnesses. I expected you to have prepared your submissions.

Mutale: We are aware of that but that has not been possible. Ours are almost 70 to 80 per cent ready so if we could be given a few more days…

Judge Chirwa: But all the same we have 10 days…

Judge Chirwa then gives both parties up to the following day to be ready with their submissions, saying the tribunal needed time to look at the evidence.

Silwamba: Before the tribunal rises, I would like to raise some concerns. My lords on 19th March this year, my learned friend State Counsel Mutale raised concerns about some headlines in the media. This tribunal gave a general caution to the media to be factual in their reporting. The tribunal further made it clear that it was not...the media but imploring them to report in a factual manner. My lords, the respondent has observed with concern that on Tuesday March 31 2009 in The Post 4548 in the editorial on page 18 on the evidence of TW1 that my lord was repeated in The Post of Friday 3 April 2009 4551 again at page 18 admittedly, that editorial talks about other issues but the evidence is analysed. That my lord is repeated in the Sunday Post of 5 April 2009 4553 at page 12. Adjudication on testimony is a preserve of the tribunal and the inquiry must take place in the tribunal and not in the media. We are fortified my lords in our submissions by the guidance given by the Supreme Court of Zambia in the petition of Anderson Kambela Mazoka and others and Levy Patrick Mwanawasa and others. I trust the tribunal has copies of the rulings which I have when the Supreme Court dealt with the case of Enock Kavindele and Mr Anderson Kambela Mazoka who made comments on the testimony before the courts. My lord, my instructions are that those editorial comments are prejudicial to these proceedings. I am aware the tribunal has almost concluded its proceedings but the public should wait until the tribunal has concluded. My instructions were to raise those concerns. I’ll furnish the tribunal with authorities and newspapers. I am most obliged.

Judge Chirwa: Mr Mutale

Mutale: Although I do not have any brief on the complaints against The Post, my comments would echo what Mr Silwamba has said. When I raised concerns in March, it related to a headline which appeared in the Times of Zambia which were purely prejudicial. It would seem sensational reporting by the media seems to be general. There is no particular newspaper that can be identified as doing the same. All daily papers seem to have done the same in total disregard of the tribunal’s advice.

The media should not be making reports which are prejudicial.

Judge Chirwa: Mr Mwitwa.

Mwitwa: I also concur with what learned State Counsel has stated. I am obliged my lord.

Judge Chirwa: We take note of the concerns. We further note that the press has…we know the pen can build and destroy. We note that the media seem to have their own interests. Our findings will be on the evidence before us, we will be objective in our findings. The media can keep their opinions….Thank you very much for your assistance both counsel and witnesses. We meet tomorrow at 14:30 hours when you file in your submissions.

This marked the end of the Judge Chirwa tribunal sittings which called 11 witnesses with the Attorney General and the Solicitor General having been summoned.