Maravi

Judiciary is compromised, observes Kabimba

Judiciary is compromised, observes Kabimba
Written by George Chellah
Wednesday, June 24, 2009 4:07:51 PM

LUSAKA lawyer Wynter Kabimba has observed that the country's Judiciary is compromised. And Kabimba called on Zambians not to remain peaceful when they are being abused. During the newsmakers’ forum organised by the Press Freedom Committee of The Post (PFC) at Hotel Intercontinental last Sunday, Kabimba said the ruling MMD had compromised all institutions in the country.

"Every institution in the country has been compromised by the MMD including the Judiciary where I belong. They can dismiss all my cases I don't ... care," said Kabimba who is also Patriotic Front (PF) secretary general.

He said the PF/UPND pact was a revolution.

"In any revolution there are going to be casualties. Revolutions are based on people power. We need as Zambians to stand up for once and say this is nonsense. In Thailand the government went, why? Because the Judiciary there is in line with the people's demands," Kabimba said. "If we turn out in numbers and go out of this room and say this is nonsense. We are going to turn these institutions into people institutions because right now they are Nyama Soya institutions."

He said no human being could remain peaceful if they were being abused.

"You can only remain peaceful if you are not being abused... As a revolutionary myself it's either I win or I die for my country," Kabimba said. "As someone who comes from where we keep ng'ombes [cattle], if you steal my cattle, I will not remain peaceful that day. I won't even go to the police, I will make my own police station, be my own magistrate and sentence you there and then."

And Foundation for Democratic Process (FODEP) chairperson for the legal subcommittee, Charles Chanda said the fight against abuse of power by those in public offices would never be won under the current administration.

"The cherished democratic ideals of Constitutionalism, rule of law, good governance, transparency and accountability shall never take root in this country but will forever remain empty political rhetoric under the Rupiah Banda administration. [High Court] Judge [Phillip] Musonda, on an application for judicial review has found that the Honourable justice [Dennis] Chirwa led tribunal exceeded its jurisdiction when it found that Dora Siliya had breached the Constitution. This is indeed a dangerous precedent that has been set which will impact adversely on the rule of law, transparency, accountability and good governance," Chanda said.

"If ministers can ignore the advice of the learned Attorney General, why should they follow the advice of the Auditor General and other constitutional office bearers? In other words, if the learned Attorney General advises government or the Minister of Finance and National Planning to meet its obligations or settle its liability say for instance the payment of Dora Siliya's costs, the minister can decide to ignore such advice. Equally, the Director of Public Prosecution after seeking the learned Attorney General's advice on policy matters can decide to ignore such advice."

He said judge Musonda's finding does not mean that Siliya was not in breach of any procedure or law whatsoever.

"The tribunal found that Dora had eight breaches ranging from the ZDA Act, the Public Procurement Act, acted contrary to the law by signing a contract binding Zambia instead of the Minister of Finance and National Planning, ignored the advice of the learned Attorney General and also attempted to cancel a validly awarded tender," Chanda said.

"Furthermore, she appointed RP Capital Partners Limited to value Zamtel's assets. However RP Capital Partners Limited is not a registered valuation Surveyor in Zambia in terms of the Valuation Surveyors Act and as required by Zambia Development Agency Act for it to conduct valuation of Zamtel's assets. Therefore, their appointment was in breach of the relevant law."

Chanda said the nation was made to believe that Siliya had made a conscious decision to resign from her ministerial post.

"However, the unfolding events are a sign that this was a planned scheme of deceiving the public. One is left to wonder the President's swiftness in re-appointing when to date he has not finished studying the tribunal's report as he has not issued a comprehensive reaction to it as he had promised the nation," he said.

He said what was challenged by Siliya was the finding that she had breached the Constitution.

"Therefore, it was only this aspect that was under review. The other findings were not challenged and therefore she still stands in breach as charged on those aspects. Judicial review is a procedure where a sitting Judge does not look at the merits of a decision i.e. whether the decision is right or wrong," Chanda explained.

"But looks at whether the procedure used to arrive at that decision was the correct one or whether the person making that decision had the powers to make it. Therefore, the finding by judge Musonda that the tribunal exceeded their powers does not mean that Dora has been exonerated of all other allegations that were found to have been committed by her.

"Furthermore in his judgment, judge Musonda states that he has squashed the decision on the basis that the learned Attorney General's advice is not mandatory and therefore non compliance of it is inconsequential. By making such a finding, judge Musonda delved into the merits of the findings to determine what amounts to constitutional and what amounts to unconstitutional. Clearly this is not the role of the court in a judicial review application. The court should not have made any determination except to restrict himself to jurisdictional issues."

Chanda said the judgment was contradictory in that on one hand, the judge said article 54(3) was misinterpreted while on the other hand he holds that the tribunal had no jurisdiction to pronounce on constitutional issues.

"If indeed article 54(3) was misinterpreted then it follows that the tribunal had jurisdiction to pronounce on constitutional issues. How else could the Constitution be misinterpreted by one who had no jurisdiction to interpret it?" asked Chanda.

"It is evident, therefore, that the judge did not only review the tribunal's finding but dealt with the application as an appeal as well when he considered the interpretation or misinterpretation of article 54(3). In short he dealt with the merits of the case."

Labels: CORRUPTION, JUDICIARY, MMD, PFC, PHILIP MUSONDA, WYNTER KABIMBA

posted by MrK @ 3:08 PM