Civil society demand Kunda’s removal for supporting Dora

Civil society demand Kunda’s removal for supporting Dora
Written by George Chellah
Monday, April 20, 2009 4:48:14 AM

CIVIL society organisations (CSOs) yesterday demanded that President Rupiah Banda immediately fire Vice-President George Kunda for misleading the nation by supporting and justifying communications minister Dora Siliya's unconstitutional and unlawful conduct. And the CSOs have demanded that Siliya be fired for breaching the Constitution.

During a press briefing at Transparency International Zambia (TIZ) head office, TIZ president Reuben Lifuka, who presented the statement on behalf of all CSOs that petitioned the Chief Justice to constitute a tribunal to probe Siliya, said the tribunal's findings that the memorandum of understanding (MoU) between RP Capital Partners and the Zambian government was not approved and Siliya breached the Constitution invokes the complainants to make a critical observation on the conduct of the Vice-President.

"The breach of the constitution in the matter of RP Capital is not limited to Honourable Siliya but extends to Honourable Kunda, who clearly is in a unique position firstly as Republican Vice-President, secondly as Minister of Justice, thirdly as a former Attorney General and finally as a senior lawyer. Honourable Kunda misled the nation and for reasons known to himself, he defended the breaches of the law and Constitution," Lifuka said.

He said the complainants, including former communications minister William Harrington, observed with regret and displeasure the conduct of Vice-President Kunda over the handling of the RP Capital MoU.

"In so doing, we want to quote his official statement to the nation in defence of Honourable Siliya on 17 February 2009. We contrast his statements on this issue with the findings of the tribunal. The Vice-President stated the following: 'the MoU was finally signed on 22nd December, 2008 by all the parties. Thus at the time of signing the MoU, the Solicitor General had cleared and approved the MoU which had taken into account comments of the Solicitor General. For all intents and purposes, the Solicitor general was acting on behalf of the Attorney General'," Lifuka said. "However the tribunal's findings are at variance with this position and they state that 'On the 22nd December, 2008, Honourable Dora Siliya went ahead to sign a Memorandum of Understanding which was not substantially the same as the draft which the Solicitor General had cleared for signing, in that in the Memorandum of Understanding signed on the 22nd December, 2008 there was introduced a new element regarding the financial implications. There was now inserted a base floor sum of US$ 2 million. This was not contained in the final draft which the Solicitor General approved."

Lifuka said Vice-President Kunda in his statement further concluded that: "for all intents and purposes, the Memorandum of Understanding signed by the Minister of Communication and Transport was approved by the Solicitor General."

He said the complainants demanded that President Banda relieve Siliya of her ministerial position for breaching various laws and more seriously the Constitution of the Republic of Zambia, which she swore to uphold and defend.

"We call upon the Speaker of the National Assembly to equally institute appropriate action against Honourable Siliya as a Member of Parliament and Minister, for misleading the House in her ministerial statement of 13 February 2009 in relation to the MoU with RP Capital Partners of Cayman Islands," Lifuka said. " The Republican President should immediately relieve His Honour the Vice-President and Minister of Justice - Mr George Kunda of his duties for misleading the nation by supporting and justifying Honourable Siliya's unconstitutional and unlawful conduct as being within the law when in fact not. We call upon the Office of the Auditor General to audit the Petauke District Council accounts, to determine the abuse or misuse of public funds especially in light of the tribunal findings of laxity in handling of financial matters. It is our contention that the laxity identified by the tribunal in the way Petauke District Council manages its finances, should not be ignored. Such an operating environment is a conducive one for mismanagement, misappropriation and embezzlement of public funds.

"We finally demand without any compromise that all the costs accrued and payable to RP Capital Partners be met by Honourable Dora Siliya herself because she personally committed the government illegally and unconstitutionally. We shall not allow Zambian taxpayers who are already overburdened to bear the unconstitutional costs brought about by her misconduct, which is not even provided for in the national budget This costs include amounts of US$50,000, reimbursables, US$2 million base floor sum and the five per cent of the realization amount in the event that Zamtel is sold. Additionally, we demand that Parliament should not consider any supplementary estimates that may be presented by government, considering that these costs are not provided for in the 2009 Budget."

Lifuka called upon the government to urgently bring to the National Assembly amendments to the parliamentary and ministerial code of conduct Act.

"With a view to strengthening it by broadening the definition of misconduct in Section 4 to include breach of any written law and most importantly the Republican Constitution; and any other weaknesses which were apparent in the manner that this justice [Dennis] Chirwa led tribunal conducted its proceedings," he said.

Lifuka said there were eight key findings of fact that the complainants had picked out of the report of the tribunal, establishing that Siliya breached various laws, Cabinet Handbook and the Constitution of the Republic of Zambia.

"One, usurping of the Powers of the Zambia Development Agency. At page 42 and 43, the tribunal states the following: 'the advice of the Attorney General of the 5th January, 2009 was that the first Memorandum of Understanding be treated as a nullity and be re-done. His advice was not that a second Memorandum of Understanding concerning the role of the Zambia Development Agency be signed. Further, the role spelt out for the Zambia Development Agency in the second Memorandum of Understanding is merely that of providing supervision over RP Capital Partners Limited. Therefore, the second memorandum did not address the chief concerns raised by the Attorney-General. At this juncture we note that the provisions of the Zambia Development Agency Act, No. 11 of 2008 do not give powers to a minister to do what Honourable Dora Siliya did. The action she took unlawfully usurped the powers of the Zambia Development Agency'," Lifuka said. "Two, unlawful signing of the MoU. At page 43 the tribunal states: 'we further note that the Attorney-General had indicated in his letter of the 5th of January, 2009 that since the Memorandum of Understanding related to the privatization of a parastatal company, it should have been signed by the Minister of Finance and not Honourable Dora Siliya. Indeed under Section 44 of the Zambia Development Agency, Act No. 11 of 2008, the minister responsible for finance is the authority empowered to sign the sales agreement to transfer shares or assets to the selected bidder. Therefore we agree with the Attorney-General that the Memorandum of Understanding which was the preliminary stage leading to the final sale and transfer of the assets of ZAMTEL should have been signed by the Minister of Finance. That aspect of the Attorney-General's letter of the 5th January 2009 was not addressed'.

"Three, usurping the Powers of Cabinet. The tribunal makes a cardinal finding reflected on Page 44 where it states as follows: 'the effect of the Memorandum of Understanding executed on the 22nd December, 2008 is that it is now binding on the government and is not contingent upon Cabinet approval of the sale of ZAMTEL. As we understand the regulations put before us the sale of a parastatal company must be sanctioned by the Cabinet. However, the Memorandum of Understanding which was signed by Honourable Dora Siliya has usurped the powers of the Cabinet because whether Cabinet approves the sale of Zamtel or not, RP Capital Partners Limited will still claim their money'."

In the fourth finding, Lifuka said the Zambian government was committed to US$2 million without tender approval from the Zambia Public Procurement Authority.

"At page 45 and 46, the tribunal in their report categorically states that, 'in the first instance it is clear that once a decision to sell ZAMTEL has been made by Cabinet, the government will not be allowed to commence any tender process. Instead the government is now bound by the Memorandum of Understanding to allow R.P Capital Partners to proceed to provide consultancy services leading to the sale of ZAMTEL and bound to pay at least a sum of US$ Two Million. This commitment is traced to the Ministry which signed the Memorandum of Understanding allowing RP Capital Partners Limited to provide consultancy services for the sale of ZAMTEL and be paid US$ Two Million without the Zambia Public Procurement Authority. Quiet clearly the sum of US$ Two Million is beyond the Ministry's threshold. Therefore, Honourable Dora Siliya signed a Memorandum of Understanding which committed government to a sum of money beyond her Ministry threshold without approval of the Zambia Public Procurement Authority'," Lifuka said. "Five, abrogating the Public Procurement Act on Limited Selection. The tribunal in their report, on page 47 states the following, 'it is clear that the manner in which RP Capital Partners were selected was against the provisions of the Public Procurement Act. The evidence clearly shows that RP Capital Partners went to the Ministry through the Honourable Dora Siliya. Therefore the omission must squarely be put on the shoulders of the Honourable Dora Siliya. Therefore we find that the Minister of Communications and Transport did not follow the requisite tender process in the selection of RP Capital Partners Limited. It is not the law that the 'limited selection' occurs when a supplier of goods and services presents a different proposal from others'.

"Six, deception on Inserting US$2,000,000 in the MoU. At page 41, the tribunal makes the following observation, 'on the 22nd December, 2008, Honourable Dora Siliya went ahead to sign a Memorandum of Understanding which was not substantially the same as the draft which the Solicitor General had cleared for signing in that in the Memorandum of Understanding signed on the 22nd December, 2008 there was introduced a new element regarding the financial implications. There was now inserted a base floor sum of US$ Two Million. This was not contained in the final draft which the Solicitor-General approved. In the circumstances, Honourable Dora Siliya cannot plead that she was following the advice of the Solicitor-General in its entirety'."

Lifuka said the seventh finding concerned Siliya's irregular involvement in procurement of the radar system.

"On this issue, we note that while the tribunal found this allegation was not proved, they raised important points on page 59 and 60 by stating that, 'it is clear that there was no contract that was cancelled by Honourable Dora Siliya. Even her attempt to suspend the tender process was not successful. The allegation is not attempting to cancel the contract but that she cancelled the contract. Reference was made by Counsel for the Consortium of Civil Societies to Section 75 of Public Procurement Act, which creates an offence. But a commission of that offence does not amount to breach under Parliamentary and Ministerial Code of Conduct Act in its present form. If the Civil Societies wanted to complain against the breach of the section, the complaint should have been directed to the appropriate authority to investigate. However we do agree that the manner of Honourable Dora Siliya's involvement in the issue of radar tender is against the guidelines in the Cabinet Handbook especially clauses 8. 2. and 8. 4'," Lifuka said. "Eight, breach of the Constitution. The tribunal concludes on an important finding at page 106 when they state the following: 'it is a notorious fact that before Ministers assume their responsibilities they take official oath of office to uphold and defend the Constitution of Zambia and the laws of Zambia. Breach of the Constitution is a serious matter. If a sitting President breaches the Constitution he is liable to impeachment under Article 37 of the Constitution. In this case by ignoring the legal advice of the Attorney General, Honourable Dora Siliya breached Article 54 sub Article 3 of the Constitution. The observance of the legal advice of the Attorney General is also clearly spelt in Chapter 8 Paragraph 8.13 of the Cabinet Hand Book. We are not idle to think that Honourable Dora Siliya is not acquainted with Constitutional provisions and the provisions of the Cabinet Hand Book."

Lifuka said the findings of the Tribunal should serve as a timely warning to all ministers and government officials in the discharge of their functions.

"We wish to remind all those ministers or government officials engaged in similar breaches of the laws, the cabinet handbook and the Constitution, to take careful notice of these findings," he said.

"We will do everything possible within legal means and all other avenues available to ensure that the tribunal's findings are respected," Lifuka said.

The ten civil society organisations include TIZ, Civil Society for Trade Network, Southern Africa Centre for Constructive Resolution of Disputes, (SACCORD), Jesuit Centre for Theological Reflection, Citizens Forum, Civil Society for Poverty Reduction, Foundation for Democratic Process, Zambian Youths Association in the Fight Against Corruption, Women for Change and Caritas Zambia.