Rupiah is in a fix over Dora – Dr Chongwe

Rupiah is in a fix over Dora – Dr Chongwe
Written by Patson Chilemba and George Chellah
Sunday, April 19, 2009 4:40:08 AM

LUSAKA lawyer Dr Rodger Chongwe yesterday said President Rupiah Banda is in a fix and should drop communications and transport minister Dora Siliya for breaching the Republican Constitution.

And former works and supply minister Ludwig Sondashi said President Banda could be impeached should he fail to drop Siliya.

Commenting on the judge Dennis Chirwa chaired-tribunal, which found that Siliya breached Article 54 sub Article 3 of the Constitution when she selected RP Capital Partners Limited to valuate Zamtel assets without following legal advice from the Attorney General, Dr Chongwe said President Banda had been placed in a situation where he could not manoeuvre.

He said the Zambian people expect President Banda to uphold the Constitution by dropping Siliya.

Dr Chongwe said the tribunal had sent a clear message to President Banda on what to do by stating in their report that "if a sitting President breaches the Constitution, he is liable to impeachment under Article 37 of the Constitution".

"The President is in a fix. Because he is in a fix, he has to act because the tribunal has said this is misconduct. She has breached the Constitution of Zambia. The odds are against the minister," Dr Chongwe said. "What I'm saying is the head of state has been put in a situation where he can't manoeuvre. Whatever it is, I think that is spelt out in the code and what people expect when there is a breach of the Constitution is for someone to be dropped."

On the allegations regarding Siliya's cancellation of a tender awarded to Thales Airs Systems and the defrauding of Petauke District Council over her claim of a refund of K12.5 million on which she was not found wanting by the tribunal, Dr Chongwe said judges could sometimes make legal mistakes but that those mistakes could be corrected by future judges.

"At the moment, you can accept what they said. What they looked at is: 'which is the major issue?' They looked at the issue of US$ 2 million. I'm quite sure that on the major issue, she was in breach of the Constitution," he said.

Dr Chongwe said ministers were getting into trouble because the government administration had broken down.

"Decisions which should be made by permanent secretaries are now being made by ministers. If you look in other ministries, ministers are doing more less the same thing. This started happening after Mr [Frederick] Chiluba had taken over and it has continued," said Dr Chongwe. "The person [Siliya], anyway will be dealt with, so what's the point of kicking a dying horse?"

And Sondashi urged President Banda to get rid of Siliya and not waste people's time. He said government officials who breached the Constitution should not be allowed to continue presiding over the people. Sondashi said President Banda could be impeached from office should he fail to drop Siliya.

"Even for him [President Banda] that's the reason which can make him to be removed from being President. So if a President could be removed from office for breaching the Constitution, who is a minister?" Sondashi asked.

"If the President fails to take action against Siliya, it means he's consenting to the contravention of the Constitution and that is tantamount to breaching the Constitution."

Sondashi further asked President Banda and Vice-President George Kunda to apologise to the nation for supporting Siliya.

"What they said and what has been found is different. In other countries, it can entitle them to resign from their positions," he said.

However, Sondashi said he was not satisfied with the tribunal's position that Siliya did not contravene the parliamentary and ministerial code of conduct Act.

"This judgment is a miscarriage of justice. Zambians should see what I have been talking about. That the most dangerous thing we have is presidential powers. In my view this judgment has been influenced by political interference and the Judiciary all over the world cannot function properly in a country which has dictatorship," Sondashi said.

"The evidence adduced was sufficient to make the tribunal arrive at a decision that Dora Siliya abused her powers because failure to comply to legal advice and failure to observe tender procedures coupled with Siliya's selection of RP Capital Partners to valuate Zamtel assets contravenes section 4 (b) of the parliamentary and ministerial code of conduct."

And Parliamentary Public Accounts Committee chairperson, Charles Milupi yesterday said the tribunal's report on Siliya was straightforward.

Milupi said breach of the Constitution is the most serious misdemeanour.

"It's straightforward. In the governance of nations, any nation especially the ones where you have constitutional democracy breach of the Constitution is the most serious misdemeanour. I’m sure you understand that, that is the most serious," Milupi said.

"I mean you can even break the law but if something is in the Constitution and you breach it, that is a very, very serious misdemeanour. That is why even for the highest office in the land, if the President is found to have breached a Constitution that is sufficient ground for impeachment and removal from office, from the highest office."

He urged public officers to uphold the Constitution when discharging their duties.

"When we hold high office, one of the things we swear to is to uphold the Constitution whether you are MP when the Speaker swears you the moment you step into the House. We swear allegiance that we shall uphold the Constitution," Milupi said. "So we must be careful as we discharge our duties as public officers. That number one, we should uphold all the tenets of the Constitution. So if you break the Constitution, in my understanding it's a very serious misdemeanour."

Asked what the appropriate action from the appointing authority would be since the tribunal had left Siliya's breaches to be dealt with by the President, Milupi responded: "Let me not guide the appointing authority. Let me just state that the law of our land because of our constitutional democracy...is that the breach of the Constitution is a very serious misdemeanour. So it's not for me to point out to what someone should do or what someone ought not to do. All we are saying is that it's a very serious misdemeanour and I think that is sufficient," Milupi explained.

"A President who breaches a Constitution is impeached. It cannot be more serious than that. So I am sure the learned judges who looked at this thing for them to come up with that finding they knew exactly what they were saying."

Milupi said the people would judge those handling the matter on what action they would take.

"... I think we should learn that when you are in public office however weak our Constitution is we must uphold it. We should not deliberately ignore it. If we do, what this judgment is telling us is that it's a very serious misdemeanour," Milupi said. "So those who are going to look at this they must look at it from that point of view and let's not be the ones to tell them what to do. The people will judge them on what action they take. Whether they will take the Constitution seriously or they don't take it seriously. But you cannot be in public office without taking the Constitution seriously."

The judge Chirwa tribunal found that 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.

Siliya was also being probed for abuse of office for cancelling a tender awarded to Thales Air Systems for the supply, delivery, installation and commissioning of a Zambia Air Traffic Management Surveillance Radar System (ZATM-RADAR) at Lusaka and Livingstone international airports. She was also alleged to have defrauded Petauke District Council over her claim of a refund of K12.5 million for two hand pumps for two boreholes that were sunk in Nyika ward when the actual cost of the pumps was K5 million. However, the tribunal did not find Siliya wanting on both allegations.