1 November 2017

Zambia: Judges Silence 'Rumble of Malice'

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Brave judgments, giving the clearest illustration of judicial independence are being delivered all over Africa. The courts in South Africa are often praised for their courage and independence, but it is increasingly a virtue being seen elsewhere. Take the case of Butler Asimbuyu Sitali, decided by the court of appeal in Zambia, for example.

He was for some time CEO of Zambia's energy regulation board and was appointed in September 2010. In March 2013, however, Sitali was fired by the board for bizarre, political reasons.

The roots of the story go back to November 2010, two months after Sitali's appointment, when the board was dissolved. Two years later, the next board was constituted: seven new directors were appointed and introduced to management. But the Minister of Energy then appointed an additional four directors. This meant, for example, that the regulator was carrying the costs of 11 directors, while the law provided for only seven.

Sitali repeatedly pointed out to the board's chairperson as well as the Permanent Secretary for Energy, that this was unlawful. He was told the matter was 'receiving attention'. But nothing was done. All 11 names went up on the regulator's website. At public hearings on tariff increases, all 11 arrived to participate.

Some months later, an opposition MP raised the issue of the unlawful board members and Sitali was asked to work with the Ministry of Justice to prepare a response.

He did so, but the next day, instead of reading the prepared answer, the Minister let rip. He claimed that the staff of the regulator had tipped off the MP, instead of informing government of the problem, in order to make government look bad. He said a 'crackdown' was coming at the regulator 'and the responsible staff (would be) punished'. His speech over, the Minister briefed the media, again speaking of 'leakage' at the regulator and that the 'culprits' would be 'flushed out'. Such people should be considered 'enemies of the people', he said.

Two days later Sitali wrote to the Permanent Secretary of the Ministry of Energy expressing concern about these statements. Barely a week after this the chairperson of the regulator's board called a meeting of the directors, one of whom accused Sitali of 'working with the opposition' and warned him that 'severe measures' would be taken.

That same afternoon the board fired him.

Sitali then approached the High Court asking that the judge make several awards, starting with damages for wrongful or unfair termination of his contract. He said his dismissal was clearly 'political'. When he lost in that forum, he challenged the outcome in the Appeal Court.

Three members of that court heard the appeal in April, and last month they delivered their decision, agreeing that he had been unfairly dismissed - and awarding him significant compensation.

They started by saying they took judicial notice that the regulator was a statutory body that executes government policy. Against this background, the facts made clear that there was an 'unbroken chain of events' starting with the statement by the Minister of Justice blaming employees of the energy board for leaking the information and ending with Sitali's dismissal.

It was 'crystal clear' that the court below had failed to consider Sitali's evidence which should have led to an 'inevitable conclusion': that his sacking was motivated by improper considerations, and that 'the ominous rumble of malice was loud and clear'.

The trial court's finding was 'perverse and based on a misapprehension of the facts'. It should have found that the real reason he was sacked was that the board of directors acted on the views expressed by the Minister when he called for urgent action against those responsible for the embarrassing leak.

The judges also found that he should have been allowed to buy his official car despite the vehicle being less than four years old. They accepted that the previous CEO at the regulator had been allowed to buy his car, though it too was under four years old. There was no valid reason justifying different treatment. They said they wanted to 'dismiss the notion' that management of a public institution may, 'without question exercise discretion in a manner which appears to favour certain employees over others'.

They also found that, because the board refused to allow him to use his 'own' vehicle during the 30-day notice period, Sitali had to be paid by way of reimbursement for the replacement vehicle he had to hire.

And then came the sting in the tail. Sitali claimed additional damages because of the 'harsh and traumatic' way he was sacked. Would the court agree to this award?

At the trial court, this claim was dismissed as the judge found Sitali had not been wrongfully dismissed. But the appeal judges, who reversed the dismissal finding, followed their reasoning to its logical conclusion.

They said the Minister 'veered away' from the prepared statement and 'launched a scathing attack against employees of the (regulator) calling them enemies of the people ... trying to destabilize the government'.

Sitali's ordeal started then, on the floor of Parliament, with the Minister's remarks and threats. He found himself the 'topic of the day' and depending on the observer's point of view, he was either a hero or a villain. 'He was thrust into the public eye and we have no doubt that the entire chain of events, inclusive of the manner of dismissal were sufficient to cause embarrassment and mental torture and constitute exceptional circumstances that warrant compensation on that account.'

No wonder he then wrote to express his concern about the things the Minister had said, commented the judges. 'It must have been all the more distressing because the Minister gave Parliament the impression that the (regulator) had never advised the ministry on the correct number of board members when the record shows that they (Sitali) had in fact done so.'

The judges awarded him 24 months' pay as compensation for damages beyond the notice period and for 'embarrassment and mental distress', clarified that he could buy his personal vehicle, with costs against the board in both courts.

It would have been very easy, and most welcome in political circles, for the judges - two of whom, incidentally, are women - to have simply confirmed the High Court's dismissal of Sitali's appeal. But clearly judges Catherine Makungu, Flavia Chishimba and Mubanga Kondolo all heard that 'ominous rumble of malice', and had other ideas of where justice lay.

- Judgment

Zambia

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