23 June 2009
DORA Siliya's political life remains entwined with President Rupiah Banda's Government. Despite winning a judgment in the High Court that clears her, Banda's enemies continue to use the quashed findings of the tribunal as basis for their political attacks against Government.
An electoral pact has since been formed with the sole purpose of having fresh and early presidential and parliamentary elections.
Mr Banda's Government is only eight months, yet his enemies are keen to collapse it, giving it no chance to work or operate.
A vicious triangle has emerged in the MMD, the opposition and donor community championing the cause. Will President Banda's Government survive? Will Siliya ride the tiger?
To enemies of Rupiah Banda, Siliya is a symbol of Mr Banda's corruption. She reflects their accusation that Mr Banda practices tribalism, favouritism and is engaged in corruption.
Yet to many, Siliya is a victim of political forces and has been caught up in the fulcrum of forces that President Banda thought he could fight and overwhelm in an easy victory.
Siliya's attempts to stop the abuse of State resources by senior Government officials and others who were keen to keep afloat a fledgling and bankrupt airline, her refusal to award corrupt telecommunication tenders to a firm promoted by a person close to the former State House occupant, and her quest to expose these corrupt vices attracted vicious political attacks and schemes that have continued to threaten President Banda's Government.
Siliya is now at the centre of a political and judicial feud that has engulfed the president, the judiciary and opposition leaders Michael Sata (King Cobra) and his new side kick, Hakainde Hichilema (Prince Cobra).
Brief background
When accepting the report of the tribunal findings on the petition against then minister of Communications and Transport, Siliya, from Justice Dennis Chirwa, President Banda had glowing words for the judiciary, praising it for keeping peace and stability in Zambia.
He praised it for resolving disputes in a manner that promotes unity and peace in the country.
He was mistaken!
Instead, the findings of the tribunal were fuel for an ugly debate that ensued. Events leading to the court process against Siliya had caused a fractious debate in the country that people hoped the findings of the court would put to rest.
The findings didn't rest the matter but instead escalated political tension.
While stating that Siliya had been cleared of all three allegations brought against her under the Ministerial and Parliamentary Code of Conduct, the tribunal report, however, stated that she had breached the Republican Constitution by not following or ignoring the advice of the attorney general.
The report further warned that had it been the Republican President who had breached the Constitution, he would be subject of an impeachment motion in Parliament.
The findings were so controversial that they raised a furore that took up acres of newspaper space and predictably caused the resignation of Siliya from her position.
What is the motive of the tribunal findings?
It was clear that the tribunal's findings that Siliya breached provisions of the Constitution were in excess of its mandate and jurisdiction.
The tribunal erred in law when it adjudicated upon constitutional matters and pronounced itself on the provisions of the Constitution.
This is an exclusive preserve and power of the High Court (and on appeals the Supreme Court).
Magistrate, other lower courts, and tribunals are barred from interpreting the Constitution.
The tribunal, however, sought to interpret the Constitution when it alleged that Siliya breached Article 54 (3) when she awarded a contract to RP Capital without advice or regard of the attorney general.
Tribunals have a limited mandate and jurisdiction. In this case, the tribunal was constituted under the Parliamentary and Ministerial Code of Conduct Act of 1994 and is tasked to investigate breach(es) of the Code, make findings and recommend to the president measures to be taken against a member of Parliament or serving minister.
The tribunal also broke principles of natural justice as it pronounced itself on matters that were not subject of proceedings and, therefore, gave no opportunity to Siliya to be heard and defend herself.
The tribunal also seemed lost as to who was the client of the attorney general between Siliya and the Ministry of Communications and Transport.
But how could a tribunal with such eminent men in Justice Dennis Chirwa, Justice Peter Chitengi, High Court Judge Evans Hamaundu and deputy director of subordinate courts, Chilombo Phiri (as secretary) get it so wrong?
How could the learned members of the tribunal choose to ignore the tribunal's limited jurisdiction and mandate under the law?
How could they comment and seek to interpret the Constitution when they sat as a mere tribunal and usurp the exclusive powers of the High Court to interpret the provisions of the Constitution?
Was it wilful oversight? Or was it a ploy carried by deliberate intentions?
The rise of the phoenix
Just when Mr Banda's Government had reined in the empire, a fatal mistake was made. The Government side relaxed!
But the empire went to work. They embarked on a fierce campaign and schemes against President Banda.
Mr Banda's Government and his family were accused of corruption, inefficiency, neglect of duty and failure before his Government even settles down.
Although the mischief appears to be in the law which prescribes the composition by stating that the tribunal shall consist of persons qualified to hold or have held office of the High Court or Supreme Court, the chief justice is expected to appoint persons who are of High Court status so that in the event of an appeal or review against the tribunal's findings, embarrassment would not be caused when the High Court overturns the findings.
It is difficult to understand how the Supreme Court justices were expected to apply themselves to the proceedings. As men lower than the High Court? Isn't Sakala aware of the saying that 'where a Judge is, so is the court?'
Haven't judges signed orders in strange places and venues? How were judges Chirwa and Chitengi expected to act?
Or was the intention to make the findings of the tribunal on Siliya virtually final? That if the findings were a subject of appeal, High Court judges would be intimidated or be reluctant to make a contrary view fearing to contradict eminent and senior men?
Was the intention to place and sit these senior judges in a tribunal a thorough scheme to satisfy the empire? These are the questions exercising people's minds now.
How was the tribunal against Peter Machungwa, Katele Kalumba and Golden Mandandi comprised when Dean Namulya Mungomba, Bwalya Kanyanta Ng'andu and the Anti-Corruption Commission (ACC) petitioned then chief justice Mathew Ngulube to investigate breaches under Parliamentary and Ministerial Code of Conduct by the trio in the K2 billion scandal?
When that tribunal acquitted Katele and found Machungwa and Mandandi liable, didn't they seek a judicial review in the High Court?
The war against President Banda has taken an urgent tone.
Even Maureen Mwanawasa has wittingly or unwittingly weighed in with a comment.
On her recent visit to the Copperbelt, Maureen issued a statement virtually supporting the wild-cat strikes by nurses calling them legitimate.
She implored Government to make assurances to the striking workers and urged the Government to obtain resources and pay the salary demands of striking workers.
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