Maravi

Dora didn’t follow legal advice – Malila

Dora didn’t follow legal advice – Malila
Written by Maluba Jere
Wednesday, April 08, 2009 4:49:28 PM

ATTORNEY General Mumba Malila yesterday told the judge Dennis Chirwa tribunal that the Memorandum of Understanding (MoU) signed by Dora Siliya on behalf of the Zambian government and RP Capital Partners Cayman Islands Limited did not comply with his legal opinion. And Malila said the RP Capital Partners MoU is binding and that US$2 million is payable, by the Zambian government, in any case.

This is in a matter in which 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 the hand pumps were procured at K5 million.

In his testimony yesterday, Malila told the tribunal that he took it upon himself to write a clear letter addressed to the permanent secretary in the Ministry of Communications and Transport in which he expressed concern that after seeking legal advice from his chambers and it was dully given, that advice was not taken into account by the ministry at the time the MoU was signed.

He said he made four pertinent observations which included the fact that his advice was ignored. Malila explained that it was important to heed the legal advice of the Attorney General because ignoring such advice was as good as not seeking it in the first place. He said failure to do so was in fact contrary to Article 54 of the Constitution.

"Secondly, my lord, I also pointed out that this is a public procurement contract involving the procurement of services and therefore that it was important to abide by the guidelines given by way of circulars," Malila said during examination in chief led by tribunal chairperson judge Chirwa. "In this case, I was making specific reference to the circular of 2004 which requires that before any such contract is entered into, there has to be proof of availability of funds. I also drew the attention of the permanent secretary Ministry of Communications and Transport to the provisions in the Public Procurement Act which requires approvals including the approval of the Attorney General before any contract can be entered into and the consequences for failure to get those approvals."

He said for the reasons given, the MoU which had partially been signed should be treated as a nullity. Malila said when he received a letter from then acting permanent secretary in the Ministry of Communications and Transport Victor Mbumwaye requesting for legal advice, he referred the matter to the Solicitor General because he was leaving the country the following day.

He told the tribunal that upon his return, he was briefed by the Solicitor General on what had transpired in his absence regarding this particular matter.

Malila said according to the briefs he got, he was told that the Solicitor General had made some observations on the draft MoU and made suggestions to that effect.

"I also saw on the file a copy of the letter written by the learned Solicitor General dated 5th December, 2008 addressed again to the Minister of Communications and Transport that since the suggestions and recommendations made by our chambers were being considered, he was not averse to the MoU being signed," Malila said.

He explained that he saw a partially signed MoU which had signatures of Siliya and a representative for RP Capital Partners while the provision for a signature by Zambia Development Agency (ZDA) had not been signed.

Malila said according to the information he received from his representative on the ZDA board, Patricia Jere, ZDA could not sanction the signature on the MoU before they were satisfied that the contents of the document properly represented what they were legally obliged to do.

Malila explained that when the Attorney General's chambers gives advice, they do not make follow-ups to see whether the advice has been complied with. He said it was incumbent upon the client to revert to the Attorney General's chambers if they have difficulties with the legal advice.

"I must also state that it is not usual for me as Attorney General to review any opinions which have been endorsed by the Solicitor General... My reviewing this particular MoU was prompted, as I indicated, by the complaints that came from ZDA conveyed through my representative on the board and upon review my lord, I discovered that in fact the legal advice that was given in the letter of 21 November, 2008 by Mrs. Inonge Kwenda Mwene had not been complied with in substance," Malila said. "I also noted that even the advice given by the letter of the Solicitor General in his letter of 25th November, 2008 was largely not taken into account in the partially signed MoU which I saw."

Malila said the second MoU signed on January 9, 2009 was not taken to his office for approval prior to it being signed, saying it was only brought to his attention by Jere. He noted that by the time he wrote his other opinion of January 5, 2009, the second MoU had not yet been executed.

Malila said according to the MoU signed with RP Capital Partners, the five per cent was to be paid after the realisation of the sale of Zamtel but that US $2 million was a transaction fee payable in any case.

Asked by judge Chirwa to explain what the position of the US $2 million was in accordance with the Public Procurement Act, Malila said: "There would have to be evidence that US $2 million will be made available or is available and it would require seeking authorisation from the Ministry of Finance and the money will be available. Secondly, there would be a form of a tender for the services either on open tender or one which is very limited."

Asked by judge Chirwa whether those two areas were covered, Malila said they were not. Asked further what the government's obligation would be in an event that Zamtel was not sold, Malila responded: "Generally speaking, my office would take the view that the government would be in breach of an obligation of a financial nature which it entered into. The tribunal will note from the opinion of Inonge Kwenda Mwene, we have insisted that the obligation being entered into by this particular MoU were such that require to be called an agreement. So, therefore, if there is no valuation or sale and all this is because of government's decision not to proceed, I would take the view that the government would be in breach."

During cross-examination by one of the petitioners' lawyers Bonaventure Mutale, Malila reiterated that the MoU with RP Capital Partners was binding and that if no sale or valuation of Zamtel assets took place the government would be in breach. He said the fees payable to RP Capital Partners would still be paid by the government even if the MoU was terminated.

Malila said he was not aware that RP Capital Partners were currently working in accordance with the MoU.

Mutale then asked whether the government would still be obliged to meet the financial obligations since RP Capital Partners had commenced work, Malila responded: "I must make the position very clear. How can I be saying the MoU is null and void and again say the government has financial obligation? In my opinion, I say the signed MoU be treated as a nullity and at the same time I am saying now that work is being done by RP Capital; the government is obliged to pay."

Malila maintained that the MoU with RP Capital Partners was signed regardless of his legal opinion. He explained that the Attorney General's office was there to give guidance on legal matters and that if given, it was expert advice which should be taken very seriously.

Another lawyer for the petitioners, Eddie Mwitwa, sought to know whether Malila still stood by his opinion even after learning that RP Capital Partners were working.

In response, Malila said: "If RP Capital is already doing the job then quite clearly the MoU has not been declared as a nullity. Save for the last paragraph [paragraph stating that the MoU was a nullity] on the matters that I have alluded to, I still stand by my opinion... I was making a suggestion. With these new facts, it is difficult to define the relationship between the government and RP Capital."

And asked by Siliya's lawyer Eric Silwamba whether the MoU executed had taken into account some of the recommendations, Malila answered in the affirmative.

He said the MoU had not necessarily complied with the issues raised in the opinions of November 21 and 25 and December 5, 2008 respectively.

Malila said in that case the client was to blame for not having complied with the legal opinion rendered.

"...That is where my letter of 5th January comes in...What was ultimately signed was a document that did not comply with the advice given," he said.

Malila also testified that the Solicitor General - after his meeting with Siliya to clarify the legal opinion - did not advise him that the ministry was not dealing with the sale but evaluation of Zamtel assets.

And Silwamba told the tribunal that he had been instructed to raise concerns on some sensational headlines in the media regarding the tribunal proceedings even after the tribunal advised the media against doing so.

Silwamba submitted that some editorial comments in The Post were prejudicial to the proceedings. He said the adjudication of testimony was a preserve of the tribunal and that an inquiry needed to take place in the tribunal and not in the media.

Silwamba said he was aware that the tribunal was almost concluding its proceedings and that the public should wait until the tribunal had concluded.

But Mutale said sensational reporting by the media seemed to be general and that there was no particular newspaper that could be identified as doing that.

He said the media should not make prejudicial reports.

Ruling on the matter, judge Chirwa said he had taken note of the concerns and that the media seemed to have their own interests. However, he stressed that the findings of the tribunal would be based on the evidence adduced and that the tribunal would be objective in its findings and the media could keep their opinions.

Judge Chirwa also asked the parties to file in their submissions by 14:30 hours today to enable the tribunal to compile a report to be handed over to the relevant authorities.

The tribunal closed yesterday after having called a total of 11 witnesses.

Labels: DORA SILIYA, MUMBA MALILA, PRIVATISATION, RP CAPITAL PARTNERS, ZAMTEL

posted by MrK @ 4:01 PM