Judge Musonda clears Dora

Judge Musonda clears Dora
Written by Mwala Kalaluka
Wednesday, June 17, 2009 2:57:32 PM

LUSAKA High Court judge Philip Musonda yesterday said the Dennis Chirwa-chaired tribunal acted excessively in its findings that Dora Siliya breached the Constitution when she ignored the Attorney General's advice over RP Capital Partners.

And judge Musonda said it was uncomfortable to preside and respectfully disagree with members of the tribunal who are among the most gentle, friendliest, warm-hearted individuals in the institution.

Delivering judgment in the matter in which former communications and transport minister Siliya sought judicial review over the findings of the tribunal that she breached the Constitution by ignoring advice from the Attorney General's chambers when she engaged RP Capital Partners Cayman Islands to valuate Zamtel assets, judge Musonda also awarded costs to Siliya.

The tribunal found, among other things, that Siliya breached Article 54(3) of the Constitution when she committed the government to pay about US $2 million through her signing of a memorandum of understanding (MoU) with RP Capital to valuate the assets of Zamtel pending privatisation.

But judge Musonda, in his 29-page judgment, agreed with Siliya's lawyer Eric Silwamba that the tribunal acted in excess of jurisdiction and illegally when it purported to invoke section 14(8) and pronounce itself on a constitutional matter.

"In a nutshell, Mr. Silwamba for the appellant as I understand his arguments, has relentlessly argued that, the applicant's censure or vindication could only have been completed within the confines and context of the Parliamentary and Ministerial Code of Conduct and not outside it," judge Musonda said. "There was an expansive, extensive or overstretched meaning of the word 'Advice'. There was procedural impropriety."

Silwamba in his submissions had argued that the tribunal having found that Siliya had not breached part II of the Parliamentary and Ministerial Code of Conduct and duly cleared her of all the three allegations acted within jurisdiction.

But he said the tribunal acted in excess of jurisdiction and illegally when it purported to invoke section 14(8) and pronounce itself on a constitutional matter.

On the submissions by the Attorney General, who was cited as the respondent in the matter, through Professor Patrick Mvunga, judge Musonda said what was discernible from the submission was that the Attorney General agreed with Siliya that his "Advice" was not mandatory.

"The upshot of Professor Mvunga's submission was that, the tribunal insofar as it was relevant could comment on the Constitution when dealing with breach or breaches under section 4. On behalf of the Attorney General he conceded and I quote: 'we have not been able in our research to find case law support or authority for the position that the Attorney General's advice is binding. In light of the foregoing authorities, we find it difficult to agree with the Tribunal's finding in its entirety, on this aspect'," judge Musonda said. "What is discernible from Professor Mvunga's submission is that the Respondent Attorney General, agrees with the applicant, that, "Advice" not being mandatory, the recipient of the advice has a discretion or option to follow it or not to follow the tendered advice. Consequently, there can be no violation of Article 54(3) and where there is no violation there can be no sanctions."

Judge Musonda noted that the intervenors had submitted that the court should quash the tribunal's decision to clear Siliya over allegations that she breached the Parliamentary and Ministerial Code of Conduct.

Judge Musonda further noted that the intervenors described the decision by the tribunal as unreasonable and not a proper interpretation of the code of conduct.

"Given the dignity of high judicial office, I am under very strong restraint to agree with the applicant and intervenors, to characterise the members of the Tribunal as unreasonable," judge Musonda said. "If the legislature intended the Attorney General's 'Advice' to be binding, they would have couched Article 54(3) in a similar fashion as Article 56(7). I have read the Parliamentary Debates that precipitated the enactment of the legislation in question and the objective can be summed up thus: 'no Minister or Member of Parliament should enrich themselves with resources that rightly belong to the people. Corruption does not announce itself, it is a sly disease that manipulates its way into the body politic'."

Judge Musonda disagreed with Silwamba's argument that Siliya was wrongly found of having committed a malfeasance by the tribunal, when the Attorney General's client was the Ministry of Communications and Transport.

"I do not agree with that suggestion, like a body corporate which acts through its directors, the Ministry acts through the Minister as a policy maker, the Permanent Secretary, as Chief Accounting Officer," judge Musonda said. "They are agents of the ministry as directors are agents of the company and in an appropriate case should be held accountable for their actions. For this court to agree with such a proposition is to strike at the fabric of 'executive accountability'. Ministers and Permanent Secretaries hold in trust for the people of Zambia the assets of the ministries they superintend and they must expend those assets ethically."

However, judge Musonda said he agreed with judge Smith in the Donegal's case, that to hold that the Advice of the Attorney General is mandatory is an "unwarranted gloss" on the wording of Article 54(3).

"The philosophy underlying the non-conferring on the Attorney General, as Chief Legal Advisor to government, veto or overriding power is that he gives professional advice which is legalistic to the President and Cabinet, he is not an elected official and he therefore does not factor the social political and economic conditions prevailing at the time, which elected officials representing the people must take into account those facts," he said. "The people are sovereign. The law moves slow, while the social, economic and political events happen instantly and need an instantaneous response."

Judge Musonda noted that what was unconstitutional was failure to get the advice of the Attorney General and not failure to follow it.

And Judge Musonda further went on to say that his court's intervention in the tribunal's decision under the Parliamentary and Ministerial Code of Conduct was caught up in a legal web.

"Under Judicial review I cannot delve into the merits of the Tribunal's decision," he said. "The intervenor's submissions as it relates to Judiciary reviewing the Tribunal's decision under the Parliamentary and Ministerial Code of Conduct that amounts to parallel Judicial review proceedings within Judicial review proceeding which is impermissibly by order 53."

Judge Musonda said it was important once again to underscore that it was an uncomfortable fact to preside and respectfully disagree with members of the tribunal.

"I say this because there may be especially among the laymen a mistaken notion that dissent or being reversed is synonymous with discord in the Judiciary," judge Musonda said. "I know no Judiciary in the common law, where mistakes are not made, what is important is to have a system of 'self-correction'. I am fortified by United States Supreme Court Judge William Douglas who said that: 'every Judge he had known felt in retrospect that he made mistakes'."

Judge Musonda said having said that, there was no coherent alternative to the excess of jurisdiction and the misinterpretation of Article 54(3), which arguments had been advanced by the applicant and conceded to by the Attorney General, the order of certiorari to quash the finding that there was breach of the Constitution was granted as prayed for by Siliya.

"The Tribunal's findings that there was no breach of Part II of the Ministerial Code of Conduct remain undisturbed, which means she is cleared by the Tribunal under Part II and by this court under Article 54(3) of the Constitution and it is so ordered," he said.

Judge Musonda said he was usually troubled to order costs in executive and legislative accountability litigation as good governance was anchored on accountability and transparency.

He explained that this might discourage citizens from performing their civic and moral duty like the complaints in the tribunal hearing.

"I therefore order no costs against the intervenors," judge Musonda said. "I am mindful that applicant has incurred costs to prosecute this application which has been substantially conceded to by the Attorney General. I award her costs of this hearing against the Attorney General to be taxed in default of agreement."

The tribunal found that Siliya had not breached the Parliamentary and Ministerial Code of Conduct over her engagement of RP Capital Partners to valuate Zamtel assets but instead breached the supreme law of the land, the Constitution. The tribunal did not find Siliya wanting on her involvement in the tender to procure radars for the Lusaka and Livingstone international airports. Siliya was also not found wanting on the alleged defrauding of Petauke District Council of K12.5 million.

Following the submission of the report, President Rupiah Banda promised to study the report in full after which he would issue a comprehensive statement. However, Siliya resigned from her ministerial position a few days later.

Meanwhile, the Lusaka magistrates’ court has reserved next Friday as the day of ruling on whether or not the eight civil servants and businessman implicated in the K27 billion Ministry of Health scam would be granted bail pending trial.

This was after magistrate Kenneth Mulife heard submissions from the prosecution and defence parties.

Magistrate Mulife said the submissions had been lengthy and he needed time before he could make a ruling on the matter.

Magistrate Mulife's statement was met with moderate grumbles from some members of the audience.

This is in a matter where Abel Katongo, Anthony Mwila, Lloyd Onde, Justin Phiri, Nobert Peleti, Zukas Kaoma, Henry Kapoko and Fred Chileshe are charged with various offences ranging from theft to issuing cheques on insufficiently funded bank accounts.