I found myself reading the Dora Siliya Tribunal Findings and this wonderful assessment by Transparency International. It is remarkable that Zambians tolerate the fact that a Minister can be found in breach of so many things and be reinstated because she did not apparently "breach the constitution". Don't complain, we all have governments we deserve :
TIZ Reaction to the Judge Philip Musonda Judgement, Transparency Internatonal Zambia, Commentary :
1. OUR REACTION TO THE JUDGE PHILLIP MUSONDA JUDGEMENT
The Judge Phillip Musonda judgement on the breach of the Constitution by Hon. Dora Siliya is 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”.
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.
As a general principle, Transparency International Zambia respects and upholds 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 Hon. Dora Siliya.
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.
We want to remind the public that the Judge Chirwa Tribunal made facts of findings of 8 breaches committed by Hon. Dora Siliya picked out of the tribunal report. 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.
2. TRIBUNAL FINDINGS ON HON. DORA SILIYA’S BREACHES
The breaches quoted in the report are as follows;
2.1. Usurping of the Powers of the Zambia Development Agency
At page 42 and 43, the Tribunal confirmed the following and we qoute: “The advice of the Attorney-General of the 5th January, 2009 was that the first Memorandum of Understanding be treated as a nullity and be re-done. His advice was not that a second Memorandum of Understanding concerning the role of the Zambia Development Agency be signed. At this juncture we note that the provisions of the Zambia Development Agency Act, No. 11 of 2008 do not give powers to a Minister to do what Hon. Dora Siliya did. The action she took unlawfully usurped the powers of the Zambia Development Agency.”
2.2. Unlawful signing of the MOU
At page 43 the Tribunal confirmed “We further note that the Attorney-General had indicated in his letter of the 5th of January, 2009 that since the Memorandum of Understanding related to the privatization of a parastatal company, it should have been signed by the Minister of Finance and not Hon. Dora Siliya. Indeed under Section 44 of the Zambia Development Agency, Act No. 11 of 2008, the Minister responsible for finance is the authority empowered to sign the sales agreement to transfer shares or assets to the selected bidder. Therefore we agree with the Attorney-General that the Memorandum of Understanding which was the preliminary stage leading to the final sale and transfer of the assets of ZAMTEL should have been signed by the Minister of Finance. That aspect of the Attorney-General’s letter of the 5th January 2009 was not addressed.
2.3. Usurping the Powers of Cabinet
The Tribunal makes a cardinal finding reflected on Page 44 where it states as follows: “The effect of the Memorandum of Understanding executed on the 22nd December, 2008 is that it is now binding on the government and is not contingent upon Cabinet approval of the sale of ZAMTEL. As we understand the regulations put before us the sale of a parastatal company must be sanctioned by the Cabinet. However, the Memorandum of Understanding which was signed by Hon. Dora Siliya has usurped the powers of the Cabinet because whether Cabinet approves the sale of Zamtel or not, R.P Capital Partners Limited will still claim their money.”
2.4. Committing Zambian Government to $2million without tender approval from the Zambia Procurement Authority
At page 45 and 46, the Tribunal in their report categorically states that “In the first instance it is clear that once a decision to sell ZAMTEL has been made by Cabinet, the Government will not be allowed to commence any tender process. Instead the Government is now bound by the Memorandum of Understanding to allow R.P Capital Partners to proceed to provide consultancy services leading to the sale of ZAMTEL and bound to pay at least a sum of US$ Two Million. This commitment is traced to the Ministry which signed the Memorandum of Understanding allowing R.P Capital Partners Limited to provide consultancy services for the sale of ZAMTEL and be paid US$ Two Million without the Zambia Public Procurement Authority. Quiet clearly the sum of US$ Two Million is beyond the Ministry’s threshold. Therefore, Hon. Dora Siliya signed a Memorandum of Understanding which committed Government to a sum of Money beyond her Ministry threshold without approval of the Zambia Public Procurement Authority.”
2.5. Abrogating the Public Procurement Act on Limited Selection
The Tribunal in their report, on page 47 states the following- “It is clear that the manner in which RP Capital Partners were selected was against the provisions of the Public Procurement Act. The evidence clearly shows that R.P Capital Partners went to the Ministry through the Hon. Dora Siliya. Therefore the omission must squarely be put on the shoulders of the Hon. Dora Siliya. Therefore we find that the Minister of Communications and Transport did not follow the requisite tender process in the selection of R.P Capital Partners Limited. It is not the law that the ‘limited selection’ occurs when a supplier of goods and services presents a different proposal from others.”
2.6. Deception on Inserting US$2,000,000 in the MoU
At page 41, the Tribunal makes the following conclusion - “On the 22nd December, 2008, Hon. Dora Siliya went ahead to sign a Memorandum of Understanding which was not substantially the same as the draft which the Solicitor-General had cleared for signing in that in the Memorandum of Understanding signed on the 22nd December, 2008 there was introduced a new element regarding the financial implications. There was now inserted a base floor sum of US$ Two Million. This was not contained in the final draft which the Solicitor-General approved. In the circumstances, Hon. Dora Siliya cannot plead that she was following the advice of the Solicitor-General in its entirety.”
2.7. Minister’s involvement in Procurement of the Radar system
On this issue, we note that while the Tribunal found this allegation was not proved, they raised important points on page 59 and 60 by stating that “It is clear that there was no contract that was cancelled by Hon. Dora Siliya. If the Civil Societies wanted to complain against the breach of the section, the complaint should have been directed to the appropriate authority to investigate. However we do agree that the manner of Hon. Dora Siliya’s involvement in the issue of radar tender is against the guidelines in the Cabinet Handbook especially clauses 8. 2. and 8. 4.”
2.8. Breach of the Constitution
The Tribunal concludes on an important finding at page 106 when they state the following: “It is a notorious fact that before Ministers assume their responsibilities they take official oath of office to uphold and defend the Constitution of Zambia and the laws of Zambia. Breach of the Constitution is a serious matter. If a sitting President breaches the Constitution he is liable to impeachment under Article 37 of the Constitution. In this case by ignoring the legal advice of the Attorney – General, Hon. Dora Siliya breached Article 54 sub Article 3 of the Constitution. The observance of the legal advice of the Attorney-General is also clearly spelt in Chapter 8 Paragraph 8.13 of the Cabinet Hand Book. We are not idle to think that Hon. Dora Siliya is not acquainted with Constitutional provisions and the provisions of the Cabinet Hand Book.” This breach was challenged in the high court.
3. OUR CONTINUED DEMANDS REMAIN AS FOLLOWS
We continue to demand without any compromise that all the costs accrued and payable to RP Capital Partners be met by Hon. Dora 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 tax payers 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.
The Tribunal concluded by stating in the last sentence of the tribunal report as follows; ““In the present case we leave Hon. 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.
We want to challenge our 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.
When all is said and done, we wish to remind our Governors that a day will definitely come when they will have to account for their actions. World history is resplendent with examples where the arrogance of power failed to save political leaders from being brought to book for acts which were inimical to public good. Our leaders need to change their attitude towards the discharge of their stewardship duties. Holding of public office should be a means for public service and not a vehicle for personal aggrandizement.
Information and Communication Program Officer
On Behalf of Transparency International Zambia