Judge asks why money was not indicated as advance

Judge asks why money was not indicated as advance
Written by From yesterday
Sunday, April 12, 2009 3:46:16 AM

Mboyi: In times of an emergency, I make decisions and then take them to the council for ratifications my lord.
Kabimba: Very good. But those decisions must be lawful decisions correct?

Mboyi: Yes my lord.

Kabimba: Now, the money you received from the honourable minister, do you have any official receipts apart from the documents you have produced so far?

Mboyi: No my lord.

Kabimba: Now, in your evidence in chief, you said the first K6 million you were advanced you went and paid allowances and you kept the balance, correct?

Mboyi: Yes my lord.

Kabimba: And by keeping it you mean in your pockets or house?

Mboyi: No my lord.

Kabimba: Where did you keep it?

Mboyi: It was in the council safe my lord.

Kabimba: In the council safe?

Mboyi: Yes my lord.

Kabimba: And when you wanted to spend it, you went and put it in your pocket and went and spent it correct? Don’t think too much.

Mboyi: Yes, my lord.

Kabimba: And the K6.5 million the same thing happened, it was given to you at Manda Hill, paid for the hand pumps, fuel and the money was exhausted isn’t it?

Mboyi: Yes my lord.

Kabimba: Please tell the tribunal at what point did this money get credited into the council’s account?

Mboyi: None my lord.

Kabimba: At no point correct?

Mboyi: None my lord.

Kabimba: And the boreholes were sunk?

Mboyi: Yes my lord.

Kabimba: And the equipment for use correct?

Mboyi: Yes my lord.

Kabimba: And the water crisis resolved?

Mboyi: Partially my lord.

Kabimba: Who issued the payment schedules that you produced this morning?

Mboyi: To who?

Kabimba: Out of the council.

Mboyi: I don’t know my lord.

Kabimba: May the witness be shown exhibit P67. Who issued those documents?

Mboyi: Petauke District Council my lord.

Kabimba: Which officer?

Mboyi: Mr Mwale my lord.

Kabimba: Who is Mr Mwale?

Mboyi: A clerical officer my lord.

Kabimba: Which department?

Mboyi: The finance department my lord.

Kabimba: So, it was not issued by the council treasurer correct?

Mboyi: No my lord.

Kabimba: Who instructed him to issue these payment schedules?

Mboyi: The treasurer my lord.

Kabimba: The council treasurer?

Mboyi: Yes, my lord.

Kabimba: So and this money was for travel allowances to Lusaka?

Mboyi: Yes, my lord.

Kabimba: And your evidence is that since your council didn’t have money, this is part of the money which came from the minister?

Mboyi: Yes my lord.

Kabimba: So your accounts clerk was debiting an account which had never been credited?

Mboyi: It wasn’t coming from…

Kabimba: You said earlier on that the money had never been receipted?

Mboyi: Yes my lord.

Kabimba: But for expenditure, you have documents that show that the money was spent?

Judge Chirwa: The money was in the custody of Mr Mboyi.

Kabimba: I would like the witness to be shown P68 please tell the tribunal the author. Who took those minutes?

Mboyi: The acting deputy director of works.

Kabimba: His name?

Mboyi: J Ngoma, my lord.

Kabimba: Now, as council secretary, who signed the minutes?

Mboyi: Myself my lord.

Kabimba: Who else, the council chairman?

Mboyi: Mr Francis Nkhoma my lord.

Kabimba: Mr Mboyi, your evidence is that these minutes have not been adopted?

Mboyi: Yes my lord.

Kabimba: Meaning the council has not looked at them and do not reflect the true record of the council?

Mboyi: Yes my lord.

Kabimba: If that situation is correct, it can’t be certified as a true record of the council?

Mboyi: No my lord.

Kabimba: No what?

Mboyi: No.

Kabimba: They have not been adopted?

Mboyi: Yes my lord.

Kabimba: So, before that, there cannot be any document that says it’s what the council says, correct?

Mboyi: Yes my lord.

Kabimba: Why have you chosen to produce minutes and not the report?

Mboyi: The minutes show proceedings and the resolutions.

Kabimba: That is not the answer…where is the report, why haven’t you produced it?

Mboyi: I didn’t think it would be necessary, I have the report.

Kabimba: With you there?

Mboyi: No my lord.

Kabimba: You have it in Lusaka?

Mboyi: Yes my lord.

Kabimba: And if we give you an opportunity, you can produce it?

Mboyi: Yes, my lord.

Kabimba: With your leave my lord, Can I make an application that the tribunal stands down to allow the witness bring the report?

Judge Chirwa then adjourns the tribunal to the following day at 09:00 hours.

Friday March 27, 2008. Morning session. Kabimba continues cross-examining Mboyi.

Kabimba: Yesterday at the end of the session you undertook to explain to the tribunal your part to the special council meeting of 24th February 2009. Do you remember that?

Mboyi: Yes, my lord.

Kabimba: Do you have that report?

Mboyi: Yes, my lord.

Kabimba: How many special council meetings have you had between November 2008 and February 2009 as Petauke Council?

Mboyi: If my memory serves me right, it should be three.

Kabimba: Would you remember the months?

Mboyi: One must have been December…then one in January and the other one in February.

Kabimba: Regarding the special council ones?

Mboyi: All of these have been special council meetings.

Kabimba: You remember yesterday you were asked a question…to why you did not call for a special council meeting when you received the money from Honourable Siliya, your answer was that there was no money to pay councilors’ allowances?

Mboyi: Yes, my lord.

Kabimba: It is not actually correct that you did not call for the special council meeting because you had no money because you had three special council meetings?

Mboyi: At the time we were borrowing the money, my lord, we had no money. So we could not call for a special council meeting.

Kabimba: And if you had the money for allowances during the time you received that money, what would you have recommended to the council during that meeting?

Mboyi: It is concerning the borrowing of the money.

Judge Chirwa: You borrowed the money in November?

Mboyi: Yes, my lord.

Judge Chirwa: December you had a meeting and you had another meeting in January, why didn’t you bring this issue up during the two meetings?

Mboyi: The first meeting in December was the election of the council chairman. The second we had in January was to look at the mismanagement of council funds and the third one, my lord, was to state the council’s position over the matter before this tribunal.

Judge Chirwa: What was so difficulty to bring this issue in December or February…?

Mboyi: When you have special council meeting you only discuss item that is tabled before the council.

Judge Chitengi: Especially, the one related with mismanagement. That is where you could have rightly tabled the borrowing of the money.

Kabimba: The special council meeting of 24th February 2009 resolved…to ratify the payment of K12.5 million to Honourable Siliya. Do you remember that?

Mboyi: Yes, my lord.

Kabimba: Whose decision was the council ratifying at the meeting?

Mboyi: The decision I gave, my lord.

Kabimba: Your decision?

Mboyi: Yes, my lord.

Kabimba: In fact you have the same power as the council to borrow money?

Mboyi: When deemed necessary.

Kabimba: Now answer the question?

Mboyi: When deemed necessary, my lord.

Kabimba: Was this your borrowing of K12.5 million one of the circumstances that you deemed necessary?

Mboyi: In the interest of the people of Petauke, yes my lord.

Kabimba: Do not talk like a politician, speak like a witness. Please, answer my question?

Mboyi: Yes, my lord.

Kabimba: Why were you asking the council to ratify the decision?

Mboyi: In the circumstances, when I made the decision to borrow, …I had in mind that I would table before the council the decision that I made.

Kabimba: That is not the question. Why were you asking the council to ratify the decision?

Mboyi: Because they are the final authority.

Kabimba: Good. Can we now move on to your report to the Special Council Meeting held on the 24th of February 2009? Let us have a look at the report? Is that your report to the Special Council Meeting?

Mboyi: Yes, my lord.

Kabimba: Please tell the tribunal the date on that document?

Mboyi: 24th February 2009.

Kabimba: Who is the author of the document?

Mboyi: It is me, my lord.

Kabimba: Kindly read the report to the honourable tribunal?

Mboyi reads.

Kabimba: What document was attached to that report?

Mboyi: The document that is before the tribunal.

Kabimba: Could you describe them?

Mboyi: Payment voucher, letter of claim, receipt from Saro, delivery note from Saro, the acquittal statements, my lord, receipts for fuel. Those are the documents.

Silwamba: Just for the record we adjourned yesterday for Mr Mboyi to produce the report.

Kabimba: My lord, I am obliged. That report has all along been in your possession?

Mboyi: In the council’s possession, my lord.

Kabimba: My lord in line with what State Counsel Silwamba said, I would like to seek the leave of the court that the document be produced?

Silwamba: In the…of relaxed rules…most obliged. I have no objection.

Kabimba: My lord I am obliged.

Judge Chirwa: Exhibit P70.

Kabimba: How many recommendations do you make in that report to the council?

Mboyi: One, my lord.

Kabimba: Just cast your eyes on that one resolution, what are you exactly recommending to the council?

Mboyi: To state it position over the matter, which appeared in the paper.

Kabimba: Did the council debate that matter?

Mboyi: Yes, my lord.

Kabimba: Was that the only item on your agenda before the special council meeting?

Mboyi: Yes, my lord.

Kabimba: If the witness, with your indulgence, could be shown P68, the minutes?

Mr Mboyi you are familiar with that document, what is it?

Mboyi: Those are the minutes of the council, my lord, of the meeting, which was held on 24th February 2009.

Kabimba: How many resolutions do you have?

Mboyi: Four resolutions.

Kabimba: Could you kindly read those resolutions?

Mboyi reads the resolutions asking the council to refute the allegations.

Kabimba: Please tell the tribunal where the three resolutions have come from, for they are not part of your report?

Mboyi: They came from the verbal report that I was giving to the council.

Kabimba: So you are telling the tribunal that in fact you presented two reports, one verbal one written?

Mboyi: In order for the council to understand, I had to explain first on the matter.

Kabimba: You actually had two reports?

Mboyi: No, my lord.

Kabimba: According to the document, the council was hearing about the K12.5 million for the first time, correct?

Mboyi: No, my lord.

Kabimba: You have other documents to show that the issue had gone before the council before 24th February?

Mboyi: No, my lord.

Kabimba: I hope you are listening to yourself. As was stated here there is no resolution of the council over the sum of K12.5 million from Honourable Siliya, correct?

Mboyi: No, my lord.

Kabimba: My lord, Mr Mboyi at the beginning he said he was very familiar with the local government Act. I just want him to read one section there and this is Section 35 of the local government Act in particular section 35 (2) Chapter 281 of the Laws of Zambia?

Silwamba: Since the witness is being asked to read the law, he may actually read section 51 so that we are in context?

Mboyi reads.

Judge Chirwa: Read section 51?

Mboyi reads.

Kabimba: Now, Mr Mboyi, please tell the tribunal who are the people authorised to sign or execute loan agreements in the council? Who are the officers or parties?

Mboyi: The council chairman, my lord.

Kabimba: Who else?

Mboyi: Myself, my lord.

Kabimba: Yourself, as principal officer, answer Mr Mboyi?

Mboyi: Yes, my lord.

Kabimba: And this would usually be after the council meets?

Mboyi: Yes, my lord.

Kabimba: Now Mr Mboyi, apart from the two handwritten notes, you have no official internal documents of the council to show that Honourable Siliya advanced K12.5 million to Petauke Council?

Mboyi: The evidence is the goods and services that were purchased.

Kabimba: You did not have any official internal document?

Mboyi: No document but goods and services.

Kabimba: Answer the question?

Mboyi: No, my lord.

Judge Chirwa: So far the cross-examination has been good for auditors not for the tribunal.

Kabimba: I am alive to the fact that this tribunal is conducting and enquiry and that I have at the back of my mind. I am sure that…

Judge Chirwa: You have made your point already that they money never entered the books of the council.

Kabimba: The allegation is fraud. Now we can only establish fraud if we can show…the last question, my lord. You have presented the report to the special council meeting about a refund of a sum of K12.5 million, which actually never entered the council account, correct?

Mboyi: The goods and services entered the council account.

Kabimba: The goods and services cannot enter the council accounts. No further questions my colleague Mr Mwitwa will continue.

Mwitwa: I want to refer you to P28. If the witness could be shown P28? These are the newspaper articles from the Times of Zambia and Zambia Daily Mail. I wanted to start with the one from the Times of Zambia, if you could just read paragraph two and three?

Mboyi: Council chairman Francis Nkhoma…

Mwitwa: Now I will take you to the Zambia Daily Mail article and in particular paragraph four and five?

Mboyi: He said the decision was made…

Mwitwa: From the Times of Zambia article, Mr Mboyi, Mr Nkhoma is reported as council chairman, is he acting council chairman?

Mboyi: Yes, my lord.

Mwitwa: My second interest in the two articles is reference to a report by the finance scrutiny committee…was the said report presented to that meeting?

Mboyi: Yes, my lord it was a verbal report.

Mwitwa: Is that report reflected in the minutes, Mr Mboyi, P68, your drafts?

Mboyi: Yes, it is my lord.

Mwitwa: If you could just refer to that portion in your minutes?

Mboyi: He first reported that on November 28…

Mwitwa: Who is the him being referred in those minutes?

Mboyi: It is me, my lord.

Mwitwa: So the finance scrutiny committee being referred to is yourself?

Mboyi: No, my lord.

Mwitwa: The actual position is that the finance scrutiny committee did not present any report?

Mboyi: It was a verbal report.

Mwitwa: This report was extremely confidential, do you remember that?

Mboyi: Yes, my lord.

Mwitwa: Why was it extremely confidential?

Mboyi: In the sense that the situation or the matter was coming before the tribunal. My lord having experienced the situation where council documents end up in wrong hands, my lord, I stated that it was confidential.

Mwitwa: By then you were not aware that the document was before the tribunal as part of the civil society organisations petition?

Mboyi: I was aware, my lord.

Mwitwa: I am putting to you that the reason this document was confidential was because it was the very first time that the councilors were having sight of it?

Mboyi: No, my lord. The finance scrutiny committee had seen them and some of them had seen the document.

Mwitwa: Just on this issue of the special council meeting, Mr John Mwanza testified before this tribunal that in this particular meeting, your resolution was not put to a vote? Was there vote?

Mboyi: No there was no vote…a vote can only arise when there are two motions on the floor.

Mwitwa: Before the anonymous decision, you heard Mr Mwanza testify that there was no seconder?

Mboyi: There can’t be a seconder if a motion has been unanimously agreed upon.

Mwitwa: Mr Mboyi were you saying there was a seconder to your motion?

Mboyi: The council agreed unanimously.

Mwitwa: Was there a seconder to your motion?

Mboyi: There can only be a seconder if there are two motions…I presented a report, my lord, it was up to the council to make a decision. In this case, there was no need for a seconder, my lord.

Mwitwa: I think that you have not answered my question but I will leave it at that…when were those boreholes drilled and hand pumps installed?

Mboyi: I can’t remember that but it was somewhere in November.

Mwitwa: It was at the point before actually CDF was deposited in the council account?

Mboyi: Yes, my lord.

Mwitwa: Do you remember the actual costs…what was the total amount?

Mboyi: I can’t remember all the costs but it was totalling to about K38 million, my lord.

Judge Chirwa: For the two boreholes?

Mboyi: Yes, my lord.

Mwitwa: This was before the CDF was deposited in the account?

Mboyi: After the CDF funds came.

Mwitwa: The fuel for drilling of boreholes was taken on credit and the individual charges for the Department of Water Affairs were also on credit?

My understanding was that you were advised by the water engineer that the boreholes would cost K12.5 million.

Mboyi: This was the initial amount of money that we needed for them to commence the drilling of the boreholes.

Mwitwa: And the allowance was paid to them in their individual capacity or was it to the Department of Water Affairs?

Mboyi: They were paid as officers within the Department of Water Affairs.

Mwitwa: Out of interest, there was no allowance to yourself, for these trips to Lusaka from the K12.5 million?

Mboyi: No, my lord.

Mwitwa: I will take you to the issue of your handwritten acknowledgement of receipt of the K12.5 million. Mr Mboyi just confirm that these two documents are in your handwriting?

Mboyi: Yes, my lord.

Mwitwa: My interest is just to find out why you omitted to indicate the specific details why you were receiving that money? Why didn’t you indicate that the money was a loan or an advance to the council?

Mboyi: Since I knew that I was coming before this tribunal…the money was going towards facilitation of the drilling of the boreholes and it was given to me for this purpose that is why I got the money.

Judge Chitengi: Why didn’t you indicate this was an advance?

Mboyi: The document P52 indicates that the money was taken for the facilitation of the drilling of the boreholes.

Mwitwa: And why didn’t you indicate that it was an advance to the council?

Mboyi: On that day that is what I indicated.

Mwitwa: The reason you did not indicate that money was an advance to the council, it was given to you by Honourable Siliya to do work in her constituency?

Mboyi: I received the money as council secretary, Petauke District Council.

Mwitwa: When you received the money on the 1st of November, you only started spending it on the 8th of November?

Mboyi: No, my lord, according to the evidence before this tribunal, the acquittal sheets were made on the 6th of November.

Mwitwa: May I hear from you, what is an acquittal sheet?

Judge Chirwa interjects.

Mwitwa: The issue of strategic plan, is that plan approved by the Ministry of Local Government and Housing?

Mboyi: No, my lord.

Mwitwa: So it is simply an internal document?

Mboyi: There is no provision for the minister to approve the strategic plan.

Mwitwa: You were saying that with regard to the sinking of boreholes there is no need to follow the CDF guidelines because that is taken care of in the strategic plan?

Mboyi: Yes, my lord.

Mwitwa: It is your evidence that CDF guidelines stipulate that if there is a strategic plan then the guidelines should not be followed?

Judge Chirwa interrupts and curtails Mwitwa from his manner of questioning.

Mwitwa: I was only interested in knowing that the strategic plan is superior to the CDF?

Judge Chitengi: We shall get the answer from him.

Mwitwa: I am satisfied, my lord, I will go to the last point, P22, the payment voucher?

Mboyi: Yes, my lord.

Mwitwa: Just read the narration on the document?

Mboyi reads.

Mwitwa: And you can confirm that the document is signed by five council officials, including yourself?

Mboyi: Yes, my lord.

Mwitwa: Would I be correct to state that those signatures confirm that the…on the document are correct?

Mboyi: Yes, they agree with…

Mwitwa: That is all I needed. And according to that document, the refund was for hand pumps as agreed by the five council officials?

Mboyi: According to the document, yes my lord.

Mwitwa: My lord, I am glad to say that is my last question.

Judge Chirwa: For two pumps which place is that?

Mboyi: This is Talasa, my lord.

Judge Chirwa: Why didn’t the voucher indicate this was a refund?

Mboyi: I guess these were just clerical errors, my lord.

Judge Chirwa: Re-examination?

Silwamba: Very briefly. Show Mr Mboyi P52 and P53? Look at that documents? You were asked about the document dated first November?

Mboyi: Yes, my lord.

Silwamba: Do you note the person from whom you are receiving the money?

Mboyi: Yes, my lord.

Silwamba: And that person is?

Mboyi: Honourable Dora Siliya.

Silwamba: And that person signed that document?

Mboyi: Yes, my lord.

Silwamba: Did you indicate the purpose?

Mboyi: Yes, my lord.

Silwamba: What was the purpose?

Mboyi: To facilitate the drilling of boreholes in Tasala Two and Show Grounds.

Silwamba: So you even gave the location, Tasala Two and Show Grounds?

Mboyi: Yes, my lord.

Silwamba: Look at the next document, P5 you have seen it?

Mboyi: Yes, my lord.

Silwamba: Do you indicate your designation?

Mboyi: Yes, my lord.

Silwamba: The document can confirm…the purchase of the hand pump and you even gave the locations they would be installed?

Mboyi: Yes, my lord.

Silwamba: You represented yourself to Honourable Siliya as receiving this money on behalf of who?

Mboyi: Petauke council, my lord.

Silwamba: Can you confirm that on the 24th of February, the council ratified your action?

Mboyi: Yes, my lord.

Silwamba: That is the end of re-examination.

Judge Chirwa: It has been a very short one. Thank you very much Mr Mboyi you can go back to Petauke.

Silwamba: As I indicated yesterday that testimony will mark the close of the respondent’s explanation. I am most obliged.

Judge Chirwa: On our part we would like to call the Attorney General and the Solicitor General. The Attorney General is out of the country. He will only be back on the 6th…

Judge Chirwa adjourned the session to next Tuesday when the Solicitor General was expected to testify before the tribunal.

Solicitor General Dominic Sichinga on Monday March 30, testified in the Judge Dennis Chirwa tribunal. Below is the verbatim of the proceedings.

Judge Chirwa: Solicitor General, come and take the stand please.

The Solicitor General then takes oath.

Judge Chirwa: State Counsels, the tribunal had summoned the learned Solicitor General to clarify a few things, he is therefore a witness called by the tribunal and we will call him TW1. Give us your full names.

Sichinga: My names are Dominic Y. Sichinga.

Judge Chirwa: How old re you?

Sichinga: I am 40 years old.

Judge Chirwa: What is your residential address?

Sichinga: Number 14, Kasempa Road Suningdale Lusaka.

Judge Chirwa: You are the Solicitor General for the Republic of Zambia When were you appointed?

Sichinga: 28th February 2008 my lord.

Judge Chirwa: What are your responsibilities?

Sichinga: My lord, I pass through bills presented to parliament through a legislative committee, its an inter ministerial committee. I draft agreements and I tender counsel or legal opinion and I attend to mitigation for matters in court.

Judge Chirwa: Can you show the Solicitor General Exhibit P1, that’s the MoU. Have you seen that document?

Sichinga: Yes I have seen various versions.

Judge Chitengi: This particular one?

Sichinga: Yes, my lord I have.

Judge Chirwa: Before that one?

Sichinga: Yes, I have seen other drafts.

Judge Chirwa: And what you have seen, P1 is what your office approved?

Sichinga: Yes, my lord.

Judge Chirwa: Show the Solicitor General Exhibit P4, the letter from the acting principle counsel. You are aware of that document?

Sichinga: Yes I am.

Judge Chirwa: And that letter what was it referring to?

Sichinga: This was referring to the original draft.

Judge Chirwa: Show the Solicitor General Exhibit P6, this is a letter from the Solicitor General to the minister dated 25h November, 2008. You know that document?

Sichinga: Yes my lord I do.

Judge Chirwa: In that letter, what were your concerns?

Sichinga: After we had P4, I then received a letter from the minister requesting me to discuss the opinion we had rendered in a letter dated 25th November, 2008. She informed me that she had understood the opinion contained in that letter. However, she thought that we had missed the point she was trying to be achieved and what was trying to be achieved. At that particular point, it was not the sale of Zamtel but that the ministry was trying to do an internal evaluation of assets of Zamtel and the basis of that evaluation is what the ministry would take to Cabinet.

It was on that understanding that we were asked to re-look at the opinion we had rendered on 21st November, 2008.

On that understanding, I reviewed my opinion which is contained in the letter of the 25th November, 2008. What I was saying…the ministry was concerned that they did not want to be bound by a contract because they understood that…the ministry were concerned and they wanted an MoU because that would state the intention of what the parties were going to do so I looked at the provisions. In my letter, I said it did not matter what parties called the understanding but that the parties needed to be legally bound.

The other issue that arose out of our discussion was the amount of consideration referred to as US $2 million and the US $2 million aspect, the brief OI received was that it would only be paid in an event of sale and that for the purpose of evaluation, the ministry’s liability would only extend to the amount of US $50,000.

Judge Chirwa: Yes.

Sichinga: And in my letter, I advised that caution is exercised to ensure that those proposed costs were within the ministry’s threshold for tender processes.

I also advised that reference to the sale of Zamtel be excluded. The other issues are that the parties’ intention should be clearly stated…

The final advice I gave was that the testimonium code did not have space for the witnesses and advised that that be included. Generally, that was the core of my advice.

Judge Chirwa: In your meetings with the minister, who was present?

Sichinga: I was present alone with the minister.

Judge Chirwa: Look at Exhibit P61. That is your letter again?

Sichinga: Yes, my lord.

Judge Chirwa: Dated 5th January?

Sichinga: Yes my lord.

Judge Chirwa: In that letter, what were you saying?

Sichinga: After I rendered my opinion on 25th November, I then had a further telephone conversation with the minister and again she sought clarifications on opinions I rendered in Exhibit P60. I explained the advice I had rendered almost point by point and at that point, other issues arose including the role of ZDA. In my opinion, I stated that ZDA ought to have been a party. It was clear to me at that point that ZDA had a role to play of the intention of government was to sell the assets of Zamtel and I referred to the provisions of the ZDA Act itself and I also stated that ZDA was a body corporate, they have their own legal counsel it would be best for ZDA to have an input as to what should contained in the MoU. Eventually, I received a draft where I saw that ZDA had been made a party in the MoU, in the initial draft, ZDA had not been made a party. At this point, I was satisfied that if there was an eventual sale of Zamtel, ZDA would have a part to play in accordance with the Law, Act 11 of 2006.

And I looked at the draft availed to me and went through the points I had raised at that point, I was satisfied that the pertinent issues had been taken into account. In fact, I do state in my letter that I do note that the MoU has been revised taking into account issues I raised and the only issue I was still concerned with was the parties were still referring to the minister by name and I thought…

There was still reference to the sale of Zamtel which we had advised however, I drew comfort in approving on strengths that in the initial draft, ZDA had not been a party, it was a rightful body.

Judge Chitengi: The sale of Zamtel, what else?

Sichinga: Reference still to the US $2million but my comfort was that this was still subject to Cabinet approval.

Judge Chirwa: In your discussions in this issue, were you briefing the Attorney General?

Sichinga: I believe so because the Attorney General assigned this to me. The initial letter was addressed to the Attorney General. Yes I did…we were both in agreement on the statement written and hence the two or three letters to the client.

Once we are requested to render that advice, we do it in one letter not several.

Judge Chitengi: The only departure was the reference to the sale of Zamtel and the US $2 million?

Sichinga: Yes.

Judge Chirwa: Those two issues and that the MoU still contained those two issues?

Sichinga: Yes my lord.

Judge Chirwa: Show the witness the letter from the minister to the permanent secretary.

Judge Chitengi: Learned SG, you didn’t find it necessary when you were with the minister to discuss….

Sichinga: This was almost an impromptu meeting a day after receipt of the letter of 21 November.

Judge Chitengi: Are you saying your experience…

Sichinga: No that is the reason why I referred to the meeting, it was important I referred to issues as I understood. I advised that …

Judge Chirwa: So as legal advisor to the ministry, it did not clique that technocrats should have been present?

Judge Chirwa: You have the letter of 5th January?

Sichinga: Yes my lord.

Judge Chirwa: Are you surprised at that letter?

Sichinga: No my lord, I am not.

Judge Chirwa: The Attorney General is saying the MoU signed is a nullity?

Sichinga: As I said, I briefed the Attorney General on the meeting and I was in agreement…he was aware of the things I had done.

However, the Attorney General informed me that his representative from the ZDFA board had come to report to him that there was great concern by the ZDA board. He informed me that he received reports that the board was not happy with some of the provisions in the MoU and informed me that it was what prompted him to write the letter of 5th January. At that point, my only assumption was that there was another draft which was before the ZDA board which had obviously not taken into account the concerns that I myself had raised. Now, ordinarily, we do not police our clients, we render our advice and in good faith take it that the ministry will take it into account. The Attorney General wrote a letter of 5th January because after 5th December, it would have been the end of the matter. We do not police our clients, but the Attorney General wrote because of reports that he had received.

I have not seen the final draft of the MoU.

Judge Chirwa: What is the usual practice?

Sichinga: My lord, once we have agreement of contract, we can propose changes; redraft the entire agreement if it is so badly written

Judge Chirwa: State Counsel Mutale?

Bonaventure Mutale: Much obliged. Learned Solicitor General, I’ll just follow up on what my lords have passed to you. When you have given an opinion, don’t you retain your own copies?

Sichinga: Yes my lord we do.

Mutale: Do you have copied of all these versions you referred to

Sichinga: Yes my lord

Mutale: It would have been helpful if you had advanced the tribunal copies of the versions you looked through. Don’t you think so?

Sichinga: Yes my lord. I might have one copy with me.

Mutale: Yes let us see what you have there. This copy you have just furnished, is this the first draft you looked at?

Sichinga: Unless I am looking at the file…

Mutale: It looks like the exact replica like the one you approved.

Sichinga: I haven’t seen it.

Mutale: May it be marked my lord? Mr Sichinga would you like to produce that draft?

Sichinga: Yes my lord.

Judge Chirwa: Marked exhibit P71. Yes.

Mutale: The draft P71 seems to be a draft you are referring to in P61. Look at the letter, there was reference to the minister’s name?

Sichinga: Yes my lord.

Mutale: So, apart from that point, the MoU shown to you does not take into account any of the previous points you made?

Sichinga: some of them…the only one is the removal of the name, like I said there might be another draft.

Mutale: No, we just have to go by P1 which was executed

Sichinga: Very well.

Mutale: When you look at P4, your opinion, its quite detailed it literally tears apart the MoU, you realise that all those contents have not been considered in P1 the MoU executed, you agree?

Sichinga: Yes.

Mutale: Your letter of 25 November is four pages, would you agree that those points raised in your opinion have not been considered in P1?

Sichinga: Yes my lord I would agree.

Mutale: We move to P61 the letter of 5th December. Point number two in your letter, that point as well was not taken into account in the MoU [P1]. If you look at 3.7 you would agree that that point ass well was disregarded?

Sichinga: Yes.

Mutale: So, quite clearly, your opinion was not complied with, it was disregarded wouldn’t you agree?

Sichinga: I am agreeing yes.

Mutale: That will be all my lord.

Judge Chirwa: Mr Mwitwa?

Mwitwa: Just a few clarifications, learned Solicitor General, the honourable minister when she gave evidence testified that the MoU was signed with you blessings, do you agree?

Judge Chitengi: That is not a fair question. You rephrase.

Mwitwa: With the tribunal’s guidance, I will rephrase. In … of documents referred to, would you agree that your opinion was not taken into account…I’ll leave that one. Regarding the letter of the Attorney General of 5th January 2009, are you in agreement with the letter?

Sichinga: My last dealings as on December 5, 2008 letter and the Attorney General was moved by the concerns of his representative, I didn’t have the benefit to see the actual draft that was signed

I was in agreement with the Attorney General. We have verbal consultations and he informed me that there are concerns that our advice has not been heeded and I understood that everything I have said has not been taken into consideration and was out of the country when it was signed. As I am standing here, I was in agreement with the Attorney General because my understanding was that our advice had not been heeded.

Mwitwa: As of today, are you in agreement with that letter of 5th January?

Sichinga: I run the risk of making submissions.

Judge Chitengi: When you rendered advice, did you want some advice to be followed or everything?

Sichinga: Everything my lord.

Mwitwa: Most obliged my lord. Learned Solicitor General, did you ever interact with technocrats in the ministry regarding this MoU?