Dora breached Constitution over RP Capital – tribunal

Dora breached Constitution over RP Capital – tribunal
Written by Chibaula Silwamba and Patson Chilemba
Friday, April 17, 2009 2:38:09 PM

THE judge Dennis Chirwa chaired tribunal has found that communications and transport minister Dora Siliya breached Article 54 sub Article 3 of the Constitution when she selected RP Capital Partners Limited to valuate the assets of Zamtel without following legal advice from the Attorney-General.

And the tribunal stated that "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, Hon Dora Siliya breached Article 54 sub Article 3 of the Constitution".

In conclusion, the tribunal stated that "in the present case we leave Hon Dora Siliya's breaches to His Excellency the President to deal with".

The RP Capital allegation was the allegation against Siliya that was heavily defended by President Rupiah Banda and Vice-President George Kunda.

In defending Siliya, President Banda said she was smart and more intelligent than those criticising her on this matter. President Banda said Siliya was right in this matter and she knew what she was doing and she should be given the opportunity to finish what she was doing.

President Banda insisted that Siliya had followed the Attorney-General's legal advice, which was given through the Solicitor-General.

And Vice-President Kunda also maintained that Siliya did not ignore the Attorney-General's advice in this matter and went to great length explaining how the Solicitor-General, on behalf of the Attorney-General, had authorised Siliya's decision and action.

The tribunal only released to the media and the parties involved the last three and half pages (pages 104 to 107) of its 107-paged report. And below is the reproduction of the three and half pages released to the press:

"Mboyi like the transaction between Mr Moosa and Mr Mboyi is evidence of laxity in the application of financial regulations by council officials at Petauke District Council and not evidence of fraud, let alone corrupt practices on the part of Hon. Dora Siliya. The proper application or otherwise of financial regulations at Petauke District Council is not within our terms of reference. All in all, the evidence before us does not prove the third allegation and, consequently, we find that Hon. Dora Siliya did not breach section 4 of the Parliamentary and Ministerial Code of Conduct Act as alleged. The result is that we decline to make the recommendations we have been asked to make in relation to this allegation.

"After considering all the evidence, we have found that allegation number two and three have not been proved against Hon. Dora Siliya. But we have found that the first allegation relating to the failure to comply with the legal advice of the Attorney-General and failure to observe tender procedures has been proved. The critical issue is whether failure to comply with the legal advice of the Attorney-General and failure to observe tender procedures amount to a breach of the Parliamentary and Ministerial Code of Conduct.

"The complaint is brought under Part II of the Parliamentary and Ministerial Code of Conduct Act. The complainants allege that Hon. Dora Siliya has breached section 4(a) (b) and (d). And in his submissions Mr. Mwitwa also alleged breach of section 4(e).

"The Section relied upon read us follows; - "section 4. A member shall be considered to have breached the Code of Conduct if he knowingly acquires any significant pecuniary advantage or assists in the acquisition of pecuniary advantage by other person, by - (a) improperly using or benefiting from information which is obtained in the course of his official duties and which is not generally available to the public: or (b) disclosing any official information to unauthorised persons; or (c).........(d) directly or indirectly converting government property for personal or any other unauthorised use; or (e) soliciting or accepting transfers of economic benefit, other than - (i) benefits of nominal value, including customary hospitality and token gifts. (ii) gifts from close family members, or (iii) transfers pursuant to an enforcement property right of a Member or pursuant to a contract for which full value is given.

"But not withstanding that the complainants have been specific in the provision which they think have been breached, in our consideration of this matter, we have looked at all the prohibition under Part II. On the evidence we find that what Hon. Dora Siliya did under allegation one which has been proved does not fall under Part II of the Parliamentary and Ministerial Code Conduct Act.

"However, we think that it is within our mandate under Section 14 (8) of the Parliamentary and Ministerial Code of Conduct Act to make these observations for consideration by the President who appoints ministers. 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, Hon. 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 Hon. Dora Siliya is not acquainted with constitutional provisions and the provisions of the Cabinet hand book.

"With regard to the general law we have already said that in the first place Hon. Dora Siliya should not have been involved in the selection of R.P Capital Partners Limited and valuation of ZAMTEL assets which we were told RP Capital Partners Limited are already doing.

"Under the Zambia Development Agency Act the responsibility to secure and appoint valuers after Cabinet has approved lies in the hands of Zambia Development Agency.

"It is the strong view of the tribunal that government ministers must strictly observe the Constitution and the laws made there under and the government. Breach of the Constitution and the Laws made there under by government ministers and officials undermines the rule of law and contaminates the government system as it sends wrong signals to the general citizenry. In the present case we leave Hon. Dora Siliya's breaches to His Excellency the President to deal with."

And earlier when he received the report on the findings of the judge Chirwa Tribunal at State House, President Banda said the government would soon react to the findings.

President Banda said Zambia was fortunate as a country to have a judiciary of men and women who had assured the people of justice.

He said the government would straight away study the documents and come up with a reaction to the nation as soon as possible.

President Banda thanked judge Chirwa for presenting the report of the tribunal which started sittings 45 days ago. He paid tribute to judge Chirwa and his colleagues for the hard work.

"We will straight on study the documents and come back with a reaction to the nation as soon as possible," said President Banda.

Earlier, judge Chirwa said the tribunal had done its best on the task that was handed to it.

Judge Chirwa presented three documents to President Banda, which included a summary report, transcript of the verbatim and the exhibits.