Sangwa petitions High Court for Chief Justice's removal
Written by George Chellah and Mwala Kalaluka
Tuesday, July 21, 2009 6:36:25 PM
SIMEZA Sangwa and Associates on Tuesday petitioned the High Court to order Chief Justice Ernest Sakala and justice Peter Chitengi to vacate their offices. According to a petition filed on behalf of their clients Faustin Kabwe and Aaron Chungu in the Lusaka High Court, Simeza Sangwa and Associates are praying to the court to grant them an order restraining Justice Sakala and justice Chitengi from occupying and performing their functions until after the hearing and determination of the petition.
Kabwe and Chungu are the first and second respondents while Justice Sakala, justice Chitiengi and Attorney General Mumba Malila are the first, second and third respondents respectively.
The petitioners stated that Justice Sakala is a judicial officer who had passed the constitutional retirement age of 65 years but that he had continued to hold and perform the functions of the office of Chief Justice.
They stated that justice Chitengi was also a judicial officer who had passed the constitutional retirement of 65 years but had continued to hold and perform the functions of a judge of the Supreme Court.
The petitioners pointed out that Malila, who is the principal legal adviser to the government, had been included to the proceedings by virtue of the provision of Section 12 of the State Proceedings Act, Cap 92 of the laws of Zambia.
"We have also spoken to a number of lawyers who believe that prosecuting this Petition while the First and Second Respondent are still in office and performing the functions of the Office of the Judge of the Supreme Court would lead to the independence and integrity of the judicature in Zambia being undermined and we have no reason to doubt this view," the petitioners stated. "Your Petitioners, therefore, pray that they be granted the following remedies: (a) An order restraining the First and Second Respondents from occupying and performing the functions of the office of judge of the Supreme Court until after the hearing and determination of this Petition. (b) A declaration that the appointments of First and Second Respondents by the President not having been ratified by the National Assembly, the occupation and performance of the functions of the office of judge of the Supreme Court by the First and Second Respondents was ultra-vires Article 93(2) of the Constitution hence null and void."
They further prayed for a declaration that the appointments of Justice Sakala and justice Chitengi not having been ratified by the National Assembly, their hearing of the Petitioners' appeal at Ndola on June 2, 2009 and the delivery of "judgment" on July 9, 2009, sitting together with Madam justice Chibomba, was ultra-vires Article 18(9) of the Constitution.
"In that the said panel did not constitute a court established by law hence null and void," they stated in part.
The petitioners also stated that since the above hearing of the appeal by the two respondents and justice Chibomba was ultra-vires Article 18(9) of the Constitution and was presided over by a panel that was not independent and impartial it was hence null and void.
They further noted that at the time Justice Sakala and justice Chitengi were hearing their appeal, which was ultimately dismissed in Ndola, they were both beyond the retirement age of 65 as stipulated in Article 98(1) of the Constitution.
"The appointments of the First and Second Respondents by the President after their retirement to a further term not exceeding seven years, their assumption of office of judge of the Supreme Court and their performance of the functions of the office of the judge of the Supreme Court without ratification of the said appointments by the National Assembly violated Article 1 of the Constitution," the petitioners contended.
The petitioners, who stated that they were arrested and charged with other persons on various counts of corruption in 2004, also asked the court to grant them several remedies going by their petition.
"We have also made an application for an interim relief in the form of an Order restraining the First and Second Respondent from occupying and performing the functions of the office of the Supreme Court until after the hearing and determination of this Petition," the petition read further. "The said relief is necessary in that as long as the First and Second Respondents continue to occupy and perform the functions of the office of judge of the Supreme Court it is unlikely that this Petition will receive a fair hearing as the First and Second Respondents are likely to interfere and consequently influence the judge that will hear and determine this Petition. There is already evidence of the First Respondent working with the current Judge responsible for allocation of cases in the High Court interfering with Madam Justice C.B. Phiri who is hearing one of our cases No. 2008/HP/1339. The matter is now subject of a consideration by the Judicial Complaints Authority."
The petitioners further stated that the sources of their knowledge and belief were the documents, meetings and information, which came into their possession over the last seven years that they had been facing various criminal charges and also pursuing various civil claims against the state and other public institutions.
Labels: ERNEST SAKALA, JOHN SANGWA, PETER CHITENGI
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Malila studies Sangwa’s demand for Sakala to go
Written by George Chellah
Thursday, July 16, 2009 5:04:39 AM
Attorney General Mumba Malila yesterday said he was studying Simeza Sangwa and Associates’ demand that Chief Justice Ernest Sakala and justice Peter Chitengi must vacate office because they have already passed their retirement age. In an interview yesterday, Malila said he was studying the letter to him with a view to respond to the various issues raised.
Malila said: "I still haven't received it but I have been provided with a copy. I am studying it now with a view to respond to the various issues which he has raised."
But justice deputy minister Todd Chilembo said Malila could not come up with any binding verdict on Simeza Sangwa and Associates' demand that Justice Sakala and justice Chitengi vacate office.
However, Chilembo said it was logical that Malila responds to the letter from Simeza, Sangwa and Associates.
"Mr Sangwa of Simeza, Sangwa and Associates has written to the Attorney
General so it's logical that the Attorney General is the one to respond to the issues raised. But I also observe that the issues he is raising are of legal nature, they are legal arguments challenging the Constitution or the composition of the panel, which was to determine the appeal," Chilembo said. "I am wondering why these matters could not have been raised in court even as preliminary issues. The court is the one, which puts finality on these matters. What the Attorney General will say may just be an opinion. The arguments they are raising are legal arguments, the best could have been raising them in court. The Attorney General can't come up with any binding verdict. He can only give an opinion."
Chilembo insisted that to him, the arguments raised were purely legal and could only be interpreted by the court for finality.
"I am wondering whether they would have raised the same concerns if they could have succeeded in their case. These are legal arguments, we can't resolve them in that manner," Chilembo said.
In a letter to Malila dated July 13, 2009, which was also copied to President Rupiah Banda, the Chief Justice, the deputy chief justice, justice Chitengi and the Speaker of the National Assembly among others, Simeza, Sangwa and Associates stated that Chief Justice Sakala and justice Chitengi had already passed the retirement age of 65.
The law firm stated that the duo was not qualified to hold office and that they were holding their offices illegally.
"On 29th April, 2009, we lodged the above-stated appeal and because of its urgent nature it was heard in Ndola on 2nd June 2009, by a bench consisting of the Chief Justice, Mr Justice Peter Chitengi and Madam Justice Chibomba. We understand that madam Justice Chibomba is acting judge of the Supreme Court in line with the provisions of Article 93(5) of the Constitution. On 9th July 2009, what was described as the "judgment" of the court was read by the Chief Justice and our clients' appeal was rejected," read the firm's letter in part. "It has now come to our clients' attention that at the time of hearing the appeal on 2nd June 2009, both the Chief Justice and Mr Justice Chitengi had already passed the retirement age of sixty-five stipulated in Article 98(1) of the Constitution, hence not qualified to hold the office of judge of the Supreme Court, consequently not competent to hear and determine this appeal or any other appeal case.
"Article 98(1), omitting the parts not relevant to the issues at hand, reads: Subject to the provisions of this Article, a person holding the office of a judge of the Supreme Court- shall vacate that office on attaining the age of sixty-five years: We are aware of the proviso to Article 98(1), which omitting the parts not relevant, reads: provided that the President- (a) may permit- a judge of the Supreme Court, who has attained that age to continue in office for such period as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age; (b) may appoint- a judge of the Supreme Court, who has attained the age of sixty-five years, for such further period, not exceeding seven years, as the President may determine."
They stated that these provisions did not allow their lordships to hear and determine the appeal or any other appeal after reaching the retirement age.
Simeza, Sangwa Associates stated that: "If your interpretation of the constitutional and statutory provisions we have referred to is different from ours, we have instructions from our clients to move the High Court so that the issues we have raised can be adjudicated upon. However, if you share our interpretation of the said provisions, we would like to know what you propose to do to correct the constitutional and statutory violations we have outlined above. We would be grateful to hear from you within seven days from date hereof. If we do not, we have instructions to move the High Court."
Labels: ERNEST SAKALA, MUMBA MALILA, PETER CHITENGI, RETIREMENT AGE
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Judge Chitengi wonders if Dora’s MoU was home-made
Written by Mwala Kalaluka and Maluba Jere
Thursday, March 05, 2009 9:39:25 PM
JUDGE Peter Chitengi yesterday wondered whether the copy of the memorandum of understanding (MoU) on the RP Capital Partners deal that petitioners to the Dora Siliya tribunal had submitted to the tribunal was home made or had been drawn by lawyers.Judge Chitengi made this observation during examination-in-chief of Kabwata Central MP Given Lubinda by one of the lawyers of the petitioners, Eddie Mwiitwa.
Mwiitwa was leading Lubinda in evidence on a clause of the memorundum of understanding document on the RP Capital that he had produced to the tribunal in which the clause was referring to the waiver of Zambia's sovereign immunity.
"Mr Mutale whilst we are waiting, that MoU was it drafted by lawyers or was home-made?" Judge Chitengi asked the complainants' lawyer, Bonaventure Mutale.
One of the complainants' lawyers, Wynter Kabimba, in response to Judge Chitengi's remark said: "We do not have the answer."
But Siliya's lawyer, Eric Silwamba said he was not competent to respond over the remark and that he would be in a position to do that today when he presents his documents.
Earlier in the morning, Judge Chitengi also noted that the documents relating to the engagement of RP Capital Partners to value Zamtel's assets are relevant to the proceedings.
Judge Chitengi, a Supreme Court judge who is a member of the tribunal hearing the complaint brought against communications and transport minister Dora Siliya under the parliamentary and ministerial code of conduct Act, made the remarks after Siliya’s counsel Eric Silwamba questioned the legality of the documents brought before court by complainant William Harrington's counsel Wynter Kabimba.
This is in a matter where former communications and transport minister Harrington and ten civil society organisations had asked Chief Justice Ernest Sakala to set up a tribunal to investigate alleged corruption and abuse of office involving communications and transport minister Siliya.
Harrington and the ten civil society organisations urged Justice Sakala to probe Siliya for allegedly breaching the Parliamentary and Ministerial Code of Conduct in her engagement of RP Capital Partners of Cayman Islands to value Zamtel's assets before partial privatisation and her cancellation of a tender that was awarded for the installation of radars at the Lusaka and Livingstone international airports.
Judge Chitengi said even if the memorandum of understanding (MoU) that was entered into by RP Capital Partners and the government and the letter of the Attorney General's advice on the issue were deemed stolen, they were relevant to the proceedings.
However, Judge Chitengi clarified that he did not imply that the documents were stolen.
This was after Siliya's lawyer, Silwamba questioned if the documents [the MoU and the Attorney General's letter to Siliya] had been legally obtained.
Judge Chitengi said the argument was immaterial while Harrington's other lawyer, Mutale said the comment was uncalled for.
When proceedings started, Kabimba directed Kabwata PF member of parliament Given Lubinda, a witness in the matter, to read two articles from previous editions of The Post for the benefit of the tribunal and confirm whether those were the articles he had read.
Lubinda read some highlighted paragraphs from an article in The Post edition of February 6, 2009, particularly a story headlined 'Government awards RP Capital Partners $2 million contract to value Zamtel assets'.
Kabimba asked Lubinda to qualify the nature of the dollars he referred to, since even countries like Zimbabwe use dollars.
Lubinda said the headline did not indicate which dollar was being referred to but the article indicated that it was United States Dollars.
Lubinda then read some paragraphs in the story, which quoted sources within the Ministry of Communications and Transport.
"Government has awarded RP Capital Partners of Cayman Island a US$2 million, about K10.3 billion contract to value Zamtel assets before implementing the partial privatisation of the company," Lubinda read from the newspaper article. "Sources within the Ministry of Communications and Transport have disclosed that the awarding of this contract is irregular, especially that RP Capital Partners was single sourced."
Kabimba then asked Lubinda what he did after he read the said article to which he responded that he was perturbed.
Lubinda said he confronted The Post after he read the articles and asked the newspaper to prove its allegations.
Judge Dennis Chirwa then asked Lubinda to disclose which particular person he approached at The Post.
"I went and approached the managing editor of the newspaper, Mr Amos Malupenga," Lubinda responded.
Kabimba then asked Lubinda if during his visit to The Post he had been provided with any document relating to the matter before consideration and he responded in the affirmative.
Kabimba then showed Lubinda a copy of the MoU that was signed between the government and RP Capital Partners of Cayman Island and asked him to look at it and confirm if that was one of the documents he got from The Post.
"This my lords, is the copy of the document that I was shown," Lubinda replied, as Kabimba requested him to read out who the parties to the MoU were.
But Silwamba said he would not examine the document in Lubinda's hands because he did not know if it was classified or not.
"It is not fair," Silwamba said.
At this time, Kabimba passed a copy of the MoU to Silwamba before asking Lubinda to confirm if he wanted the document to be tendered in as part of his evidence.
Lubinda said he wanted the document to be produced as part of his evidence.
"Please read to their lordships the parties to that MoU," Kabimba told Lubinda.
Lubinda said there were signatures of the Minister of Communications and Transport, another for RP Capital Partners Cayman Island Limited while the third signatory was the Zambia Development Agency.
He said the document and the signatures were dated December 22, 2008.
Kabimba then directed Lubinda to another article in The Post edition of February 10, 2009, which was on page four of the publication and was headlined 'Rupiah backs Siliya'.
Lubinda testified that that was another of the articles he read before confronting The Post.
Lubinda was then made to read some extracts from the article.
"As to the argument that she did it legally, that is nonsense. First of all when the Attorney General gives an opinion, he does not give it to the public..." Lubinda read from the article in part.
Kabimba then availed Lubinda a copy of the letter from the Attorney General addressed to the Ministry of Communications and Transport relating to the awarding of the RP Capital Partners contract.
Lubinda told the court that the document was signed by Attorney General Mumba Malila and addressed to the permanent secretary in the communications and transport ministry.
Kabimba also showed Lubinda a ministerial statement to Parliament by Siliya on the matter, which he said he was shown at The Post.
Later, Kabimba asked Lubinda to read some excerpts from The Post Newspaper article dated February 13, 2009, which revealed the alleged irregularities over the awarding of a contract to SELEX to supply and install radars at two international airports.
This was in a story headlined 'Dora in another tender scam'.
When Kabimba was about to show Lubinda a copy of the article, Judge Chirwa said he had noticed that Kabimba had not been producing the same copies being shown to Lubinda to the bench.
Kabimba said if the tribunal allowed, he would make available copies of the newspaper.
At this point Silwamba then said he would be happy if the complainants produced original copies of the newspapers just like they were producing the originals of documents such as the MoU and Malila's letter.
Kabimba did not object to the proposal and told the court that he would do just that.
Later in the proceedings, Kabimba was about to show Lubinda a copy of an internal memorandum dated January 5, 2009 between Siliya and the permanent secretary in the Ministry of Comunications and Transport when Silwamba objected, saying it was a matter of principle and sought the court's guidance.
He said he had no problem with the production of the memo but that the tribunal would be setting a precedence on whether to allow the government's internal memoranda to be produced there or not.
He submitted that the tribunal needed to strike a balance as to what was in the public interest.
Silwamba said he was aware that the interest of justice might demand that every relevant material be awarded for the court's scrutiny so it could make informed findings and recommendations.
"...My Lords I will invite the tribunal to the attention of Section 14 (5) of the Parliamentary and Ministerial Code of Conduct CAP 16 of the Laws of Zambia which provides that the tribunal holds its hearing or inquiry public...,"
he said. "...I can't pray that you hold these proceedings in camera, I can only seek your indulgence."
Judge Chirwa said that could be the case if the document was classified and that the internal memo was not classified.
Silwamba later withdrew his objection.
Judge Chirwa said the sentiments echoed by Silwamba had however been noted.
Kabimba said it was clear that the tribunal was there to deal with the minister's conduct in her execution of public duties.
He explained that there were several documents that would be produced in the matter.
Kabimba then gave an example of how former Chilean president General Augusto Pinochet, who was facing charges of kidnapping and murder, tried to escape the law by saying he had immunity, adding that human rights lawyers made it clear to the former leader that he had immunity but not to kill or kidnap.
"I think no minister is elected to go and flout laws of the land...," he said.
At this point, Silwamba said if the complainants' counsel wanted to take that line of arguing, they would take the whole day doing so and judge Chirwa advised the parties to make an application if they desired to dwell on that matter.
Kabimba then said he would proceed and show Lubinda the internal memo.
Lubinda told the court that the internal memo was one of the documents he was shown at The Post and that it was a memo from Siliya addressed to the permanent secretary dated January 5, 2009 concerning the bids for installing the radar at Lusaka and Livingstone international airports. Lubinda said he wanted the internal memo to be entered as part of his evidence in the matter and marked P9.
Kabimba further showed Lubinda a notification dated December 11, 2008 addressed to the vice-president of an Egyptian firm for the supply, delivery and installation of radar system at the two airports.
The correspondence in the notification, which was signed by the permanent secretary in the Ministry of Communications and Transport indicated that the Zambian government requested to extend the validity period of the bid for 90 days.
Tribunal sittings continue.
Labels: BONAVENTURE MUTALE, DORA SILIYA, EDDIE MWIITWA, GIVEN LUBINDA, MoU, PETER CHITENGI, RP CAPITAL PARTNERS, WYNTER KABIMBA
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