Judgment on Dora sets bad precedent - TIZ

Judgment on Dora sets bad precedent - TIZ
Written by George Chellah
Wednesday, June 17, 2009 6:12:50 PM

TRANSPARENCY International Zambia (TIZ) on Wednesday observed that judge Phillip Musonda's judgement on the breach of the Constitution by Dora Siliya as found by the tribunal sets a bad precedent. And William Harrington, the intervenor in the judicial review that was sought by Siliya, said the judgement has embarrassed the Attorney General's chambers.

In a statement following judge Musonda's judgement in the matter where former communications and transport minister Siliya sought judicial review over the findings of the tribunal that she breached the Constitution by ignoring the advice from the Attorney General's chambers when she engaged RP Capital Partners of Cayman Islands to evaluate Zamtel assets, TIZ information officer Ronald Tembo said the judgment set a bad precedent of allowing people to breach the Constitution and get cleared by the Judiciary that is supposed to protect the breach of the supreme law of the land.

Tembo said the judgement on the breach of the Constitution by Siliya was strange, contradictory and puts the Judiciary on trial.

"This is considering the fact that the High Court Judge overruled one tribunal finding which had two Supreme Court judges senior to him and one High Court judge whom he concluded on page 13 of the judgement that 'it was procedurally improper and a breach of the rules of natural justice for the tribunal to pronounce itself on matters which had not been subject of the proceedings and which the respondent therein had not been given an opportunity to be heard in her defence'," Tembo said. "In this judgement on page 28 he quotes a United States Supreme Court judge William Douglas who said 'every judge he had known felt in retrospect that he made mistakes'. Judge Musonda observes that "I know no Judiciary in the common law, where mistakes are not made, what is important is to have a system of self correction'. This admission leaves a lot of questions to be answered. And it is very strange that Supreme Court Judges can be overruled by their junior to have procedurally improper and breached the rules of natural justice."

He said as a general principle, TIZ respected and upheld the independence and dignity of the Judiciary.

"It is our conviction that the Judiciary should not be ridiculed or demeaned as this will unnecessarily lower people's expectation and confidence in this important institution. It is not our intention therefore to depart from that principle in the light of the Lusaka High Court's decision to quash the Dennis Chirwa Tribunal's findings on the breach of the Constitution by Honourable Dora Siliya," Tembo said. "It is also strange in the Judgment on page 28 that he concludes that 'this courts intervention in the Tribunals decision under the Parliamentary and Ministerial Code of Conduct is caught up in a legal web: (i) under the Judicial review I cannot delve into the merits of the tribunals decision'. It is strange that despite making such a conclusion the same judgement comments on the merits of how the Tribunal breached the rules of natural justice and further rules against the tribunal conclusion on the breach of the Constitution.

"We feel that the judgement sets a bad precedence of allowing people to breach the Constitution and get cleared by the Judiciary that is supposed to protect the breach of the Constitution. We leave this matter to the Zambian people to debate and find their own interpretations and answers."

Tembo reminded the public that the judge Chirwa-chaired tribunal made facts of findings of eight breaches committed by Siliya.

"She has however only challenged one of the breaches on the Constitution. The other 7 breaches are still outstanding and we are happy that the Anti-Corruption Commission has confirmed to us that they have instituted investigations against Hon. Siliya. The conclusions raised in still stand and in need of an appropriate response from the Government," he said.

Tembo said the tribunal found that Siliya usurped the powers of the Zambia Development Agency (ZDA) because the Attorney General advised that the first memorandum of understanding be treated as a nullity and not that a second MoU over the role of ZDA be signed.

He said the tribunal found that Siliya unlawfully signed the MoU because the Attorney General had indicated in his letter that since the MoU related to the privatization of a parastatal company, it should have been signed by the Minister of Finance and not the former communications minister.

Tembo said the tribunal found that Siliya usurped the powers of Cabinet because the MoU executed on December 22, 2008 was binding on the government and was not contingent upon Cabinet approval of the sale of Zamtel, adding that whether Cabinet approves the sale of the company or not, RP Capital would still claim their money.

He said the tribunal found that Siliya committed the Zambian government to US $2 million without tender approval from the Zambia Public Procurement Authority (ZPPA) because it was clear that once a decision to sell Zamtel had been made by Cabinet, the government would not be allowed to commence any tender process.

He said the tribunal stated that Siliya signed an MoU, committing the government to a sum of money beyond her ministry's threshold without approval from the ZPPA.

Tembo said the tribunal found that Siliya abrogated the Public Procurement Act on Limited Selection because it was clear that the manner in which RP Capital Partners were selected was against the provisions of the Act and the evidence clearly showed that RP Capital Partners went to the Ministry through Siliya.

He said the tribunal also stated that Siliya signed an MoU which was not substantially the same as the draft which the Solicitor General had cleared for signing, adding that in the MoU signed on December 22, 2008 a base floor sum of US$2 million had been inserted.

On Siliya's involvement in procurement of the radar system, Tembo said tribunal acknowledged that the manner of Siliya's involvement in the issue of radar tender was against the guidelines in the Cabinet Handbook especially clauses 8. 2. and 8. 4.

Tembo said the tribunal also found that Siliya breached the Constitution because it was a notorious fact that before ministers assume their responsibilities they took official oath of office to uphold and defend the Constitution and laws of Zambia and that breach of the Constitution was a serious matter.

He said the tribunal found that by ignoring the legal advice of the Attorney General, Siliya breached Article 54 sub Article 3 of the Constitution which had now been challenged in the High Court.

Tembo further said TIZ continued to demand without any compromise that all the costs accrued and payable to RP Capital Partners be met by Siliya herself.

".... Because she personally committed the government illegally as found by the tribunal and she has not challenged this. We shall not allow Zambian taxpayers who are already overburdened to bear the costs brought about by her misconduct, which is not even provided for in the national budget. These costs include amounts of US$50,000, reimbursables, US$2 million base floor sum and the 5% of the realization amount in the event that Zamtel is sold," Tembo said. "The Tribunal concluded by stating in the last sentence of the tribunal report as follows; 'In the present case we leave Honourable Dora Siliya's breaches to His Excellency the President to deal with'. No one should continue misleading the public that no offences or wrong doings [breaches] were committed. The cited unchallenged 7 breaches are serious wrongdoings that border on abuse of public office.

"We further demand that the President Mr Rupiah Banda should now take appropriate action against Hon. Siliya on the 7 breaches as he promised the nation that he was still studying the report and would react to it. We want him to show political will on fighting corruption on these numerous breaches which were left to him by the Tribunal."

He challenged the country's governors and leaders not to dismiss out of hand the tribunal findings.

"The corruption allegations we are witnessing today are symptomatic of systemic failure and it will be an even bigger act of injustice on the part of President Rupiah Banda and his government to ignore the findings of the Dennis Chirwa Tribunal. Admittedly, all parties to the Tribunal will find good and bad aspects of the finding but the challenge to all of us is to build on these outcomes in order for us to strengthen and entrench transparency and accountability in the discharge of public affairs," Tembo said.

And Harrington said he found the judgement from the country's judicial system very interesting.

"That a single judge on his own accord can overrule a tribunal consisting of three respectable senior judges, two of which are Supreme Court judges. It's an interesting development in our legal system," he said.

Harrington said the judgement had embarrassed the Attorney General's chambers.

"This judgement has put the office of the Attorney General in an embarrassing situation that the lawyer appointed by the Attorney General to represent the office of the Attorney General in this matter blantantly contradicted the evidence submitted by the Attorney General himself to the tribunal during its sittings," Harrington said.

"In his submissions to the tribunal the Attorney General submitted that the issue of consulting his office prior to any ministry committing the government to any contract is mandatory. And he produced documentary evidence where his office wrote to Siliya on the matter stating that she had gone ahead to sign the contract after he had advised her to the contrary and that it was as good as not having consulted his office at all and that such an MoU was a nullity."

Harrington said the options of appealing against the judgement still remained open depending on how his lawyers would guide him after studying the matter.