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INTRODUCTION

This Tribunal was appointed by the Honorable Chief Justice on 25th

February 2009 under Section 13 (3) of the Parliamentary and Ministerial Code of

Conduct Act, Chapter 16 of the Laws of Zambia following complaints lodged with

his Chambers by Mr. William Harrington and a consortium of ten (10) Civil

Societies. The letter of appointment and Complaints lodged with the Chambers of

the Chief Justice are Appendices 1 and 2 to attached this report.

The Complaints were leveled against Hon. Dora Siliya, M.P; Minister of

Communications and Transport. The allegations are that she breached Section 4

(a) of the Parliamentary and Ministerial Code of Conduct Act. The Hon. Dora

Siliya was duly notified by us of the appointment of the Tribunal and furnished

with copies of the Complaints. The Tribunal started sitting in the Supreme Court

Building on 2nd March 2009 at 09:00 hours. Hon. Dora Siliya duly appeared

before the Tribunal and was represented by Counsel of her own choice; namely

Mr. E. S. Silwamba, S.C, Mr. L. Linyama and Mr. K. Mukata. Mr. Harrington

appeared and was represented by Mr. B. Mutale S.C, Mr. W. Kabimba and Mr. W.

Mubanga. For the Consortium of Civil Societies, three representatives were

present at the opening of the Tribunal and these were Mr. Godwin Lungu of

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Transparency International Zambia, Mr. Paul Banda of Civil Society for Poverty

Reduction and Mr. Rickson Kenema of Zambia Youth Association Against

Corruption. The Civil Societies were represented by Mr. E. Mwitwa.

The Tribunal wishes to acknowledge the assistance rendered to it by the

Chief Administrator of the Judiciary for logistical support in form of the

administration of the Tribunal funds; Court Reporters and Secretariat and other

Support staff. We also wish to thank the Secretary to the Treasury for the timely

release of funds for the Tribunal.

Lastly we wish to thank Counsel and all witnesses who appeared before us

for their tremendous assistance during the proceedings of the Tribunal.

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PROCEEDINGS

The format adopted by the Tribunal in Conducting the Inquiry was to have the

Complainants and their Witness lead their evidence. Hon. Siliya’s Counsel were

allowed to cross-examine the witnesses. After the complainants had led their

evidence, Hon. Siliya was allowed to lead her evidence and she called one witness.

The Complainants called 13 witnesses to support their allegations. The Tribunal

called 2 witnesses to testify before it, namely the Attorney – General and the

Solicitor General.

The Summary of the evidence follows herein under and has been put in three

categories according to the complaints starting with allegation on the award of

contract to R.P, Capital of Cayman Island to evaluate the assets of ZAMTEL. It is

followed by a summary of evidence supporting the allegation of cancelling a duly

awarded contract for the supply, delivery, installation and commissioning of a

Zambia Air Traffic Management Surveillance Radar System at Lusaka and

Livingstone International Airports. Lastly, is the consideration of the allegation

that Hon. Dora Siliya claimed Twelve and half Million Kwacha (K12.5M) from

Petauke District Council Committee for two (2) hand pumps for 2 boreholes in

Nyika ward when in fact the hand pumps cost five million kwacha (K5M).

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The substance of the Mr. Harrington’s evidence and the evidence on behalf

of the consortium of the Civil Societies was what they read in the print media in

particular, the Post Newspaper, on the allegations. However, Hon. Lubinda’s

evidence to the Tribunal revealed that he took serious and normal course by taking

on the Post Newspaper to provide some form of proof or basis of the stories and it

is from the Post Newspapers that he got copies of the correspondence, particularly,

the ones relating to the first and second allegations. What he said at the end of the

day is given in the summary of the evidence on relevant allegations.

The first allegation against Hon. Dora Siliya was as follows;

(i) As alleged by the first Complainant, the Honourable Minister of

Transport and Communication did, against the advice of the learned

Attorney- General did award a contract in the sum of US$

2,000,000 to R.P Capitals Partners of Cayman Island to value the

ZAMTEL assets without due regard and / or compliance with the

provisions of the Zambia National Tender Board Act, Chapter 394

of the Laws of Zambia

(ii) As alleged by the second complainants, the Honourable Minister of

Communication and Transport on the 22nd December 2008 signed a


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Memorandum of Understanding with R.P Capital Partners Limited

on behalf of the Government of Zambia, totally disregarding Legal

advice from the Attorney- General’s chambers

There were nine witnesses including the first complainant and Hon. Dora Siliya,

who gave evidence on this allegation.

The first witness on this allegation was Mr. William Harrington, the first

complainant. His testimony was as follows; he lodged a complaint, as a concerned

citizen pursuant to part II of the Parliamentary and Ministerial Code of Conduct

Act, Chapter 16 of Laws of Zambia on the basis of the allegations contained in

several editions of the Post newspapers. He did not wish to make further

elaborations save to say that from his personal experience as Minister of

Communications and Transport around 1994 and 1995, he could assert the

following; normally before a Ministry would award a contract, sign it or commit

the government to sums of money as was in the current case between the Ministry

of Communications and Transport and R.P Capital Partners, the standard

procedure was that the Ministry would consult the office of the Attorney - General

to seek legal guidance. In the current case, going by the reports in the press, the

Ministry did seek the opinion of the Attorney- General before it signed the

Memorandum of Understanding although, in the end, the Minister of

Communications and Transport did sign the Memorandum of Understanding


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notwithstanding the advice from the Attorney- General’s office not to do so.

Further, the manner in which R.P Capital Partners were awarded the contract did

violate the Zambia National Tender Board Act which had now been replaced by

the Zambia Public Procurement Act. During his tenure as Minister in this Ministry

of Communications and Transport there was an Internal Tender Committee. He

was also aware that big contracts such as the one which was awarded to R.P

Capital Partners were handled by the Zambia National Tender Board. As Minister,

he had no authority to be engaged in or interfere with the tender process. During

his tenure as Minister, he had no authority to sign contracts on behalf of the

government. He was aware, during his tenure that when a parastatal company was

due for privatization, such a company would be detached from the Ministry and

fall under the Zambia Privatization Agency which is now replaced by the Zambia

Development Agency. Therefore even the award of the contract should be handled

by the Zambia Development Agency and the Ministry of Commerce and Industry.

During his tenure as Minister, he did not have any discretion to ignore advice given

by the Attorney – General; he would be obliged to table the matter before the

Cabinet. His role as Minister was to formulate policy and ensure that the

technocrats implemented it.

In cross-examination by Counsel for Hon. Dora Siliya the first complainant

responded as follows; he did not have in his possession a copy of the contract
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between the Government and R.P Capital Partners and neither had he seen it. His

primary source of information were the articles in the Post Newspapers. Strictly

speaking, a Minister had no authority to commit the Government without the

advice of the Attorney - General and the Cabinet. During his time it was standard

procedure that Controlling Officers would consult the Attorney – General and then

get back to the Minister to advise on the legal opinion that they had obtained. He

was not aware that in this case the Attorney- General had delegated the assignment

to provide legal opinion on the Memorandum of Understanding to his subordinate.

The second witness on the allegation was Mr. Reuben Lupupa Lifuka, President

of the first of the Consortium of Civil Society Organizations collectively referred

to as the second complainants. His testimony was as follows; as a Consortium of

Civil Society Organizations, they received with great concern reports in the media

that procedures were not followed when the Memorandum of Understanding was

signed. This led them to present the petition to set up this Tribunal.

In cross-examination, the witness said that he had not seen the Attorney –

General’s legal opinion.

The third witness was Hon. Given Lubinda, a Member of Parliament for

Kabwata Constituency, here in Lusaka. His testimony on this allegation was as

follows; after reading about this allegation in the Post Newspapers, he approached

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the Newspaper Managing Editor. The Managing Editor showed him a document

relating to the Memorandum of Understanding. The parties to the Memorandum

of Understanding were the Government of the Republic of Zambia on one hand

and RP Capital Partners of Cayman Island on the other. The third Clause of that

agreement showed that the transaction fee was Two Million United States Dollars.

The agreement was signed by the Minister of Communications and Transport on

behalf of the Government while a representative of R.P Capital Partners of

Cayman Islands signed on its behalf. There was also a signature representing the

Zambia Development Agency. The agreement was dated the 22nd December,

2008. The Managing Editor also gave him a copy of the Attorney – General’s

legal opinion. The legal opinion was dated the 5th January 2009. The letter was

addressed to the Permanent Secretary in the Ministry of Communications and

Transport. It was also copied to the Cabinet Minister and Deputy Minister of the

same Ministry, as well as other addressees. The Managing Editor also gave him a

ministerial statement dated the 13th February, 2009. The Managing Editor also

gave him a copy of a legal opinion from the Attorney – General’s chambers to the

Permanent Secretary in the Ministry of Communications and Transport dated the

21st November, 2008. He also downloaded from the National Assembly Website

on the 21st February, 2009, a document that contained debates of the 13th

February, 2009.

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The witness produced the following documents in relation to the allegation;

(a) The Memorandum of Understanding which was marked as exhibit P1

(b) The Attorney-General’s legal opinion dated the 5th January, 2009 which

was marked Exhibit P2

(c) The Ministerial Statement dated the 13th February, 2009 which was

marked exhibit P3

(d) The legal opinion from this Acting Principal Counsel dated 21st November,

2008 which was marked exhibit P4

(e) The Ministerial statement as downloaded from the National Assembly

website on the 21st February, 2009 and contained in the debates of

the house of 13th February, 2009 Exhibit P19

In cross-examination, the witness responded as follows: the Managing Editor

did not show him a copy of the addendum to the Memorandum of Understanding.

The legal opinion from the Acting Principal Counsel was not copied to anybody.

The Acting Principal Counsel was writing for the Solicitor – General and that legal

opinion did not use words such as “direct” or “instruct”. In his letter of the 5th

January, 2009, the Attorney – General was registering some lack of clarity. The

opinion from the Acting Principal Counsel gave conditional clearance to the parties

to sign the Memorandum of Understanding after they had complied with the

observations contained in that Legal opinion. The Attorney – General in his letter
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did raise concern that the role of the Zambia Development Agency was not defined

anywhere in the Memorandum of Understanding when the agreement itself was

also signed by the Zambia Development Agency. While the Attorney – General in

the letter of the 5th January, 2009 raised questions as to why the Minister of

Finance did not sign the Memorandum of Understanding on behalf of the

Government instead of the Minister of Communications and Transport, the legal

opinion of the Acting Principal Counsel did not raise that issue prior to the signing

of the Memorandum of Understanding. He was not in Parliament when the

Ministerial Statement was read.

The fourth witness on this allegation was Dr. Eustern Mambwe, who was the

Permanent Secretary in the Ministry of Communication and Transport at the

material time. His testimony was as follows: he had been in the position of

Permanent Secretary since January, 2008. He moved to the Ministry of

Communications and Transport in the month of May 2008. As Permanent

Secretary he was the Chief Executive Officer of the Ministry, as well as the Chief

Adviser of the Minister. He was also the Ministry’s Controlling Officer as well as

the Chairman of the Ministerial Tender Committee. That Committee dealt with

procurement matters in the Ministry. He did recall a tender in respect of RP

Capital Partners of Cayman Islands. The tender was about the Procurement of

Consulting Services for ZAMTEL. When the legal opinion of the Acting Principal
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Counsel on the intended signing of the Memorandum of Understanding was sent to

him, he was not in the office. The legal opinion was received by the Acting

Permanent Secretary. When he came back into the office, the Acting Permanent

Secretary briefed him that upon receipt of the legal opinion, he had sent the same

to the office of the Minister. In view of that briefing from the Acting Permanent

Secretary, the witness did not see any need to see the Minister with regard to the

legal opinion. Subsequently, he received another legal opinion from the Attorney

– General, himself, concerning the Memorandum of Understanding. He

summoned a meeting of his subordinates. These were the Director of Maritime

who had been Acting Permanent Secretary when the legal opinion of the 21st

November 2008 had arrived, the Director of Planning and the Director of

Communications, who was in charge of ZAMTEL. He asked his subordinates to

give him the background to the Memorandum of Understanding. The Director of

Planning briefed him that the Memorandum of Understanding had been initiated

from the Minister’s office. The witness recalled that before he briefly went out of

the country in 2008, the Board of Directors of Zamtel had sent a request to his

office to assist in the restructuring of ZAMTEL. This was to be done with the help

of the Management Development Division (MDD) at Cabinet office. His Ministry

had requested the MDD who approved the request. He had therefore, summoned

the meeting of his subordinates to find out what had changed in view of the new

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process concerning R.P Capital Partners. After his subordinates informed him that

the Memorandum of Understanding was initiated from the Minister’s office, he

took the view that that the Minister wanted somebody other than MDD to carry-out

the restructuring. He then wrote an Internal Memorandum to the Minster to bring

the Attorney - General’s concern to her attention. The Minister then wrote a letter

to the Director of Planning telling him to proceed with the preparation of the

Memorandum of Understanding. The Director of Planning then showed him the

letter from the Minister as required of him by procedure. In view of the Attorney –

General’s legal opinion the Memorandum of Understanding was a nullity, the

witness instructed the Director of planning to stop processing the Memorandum of

Understanding until further notice. He did not know that, at the time, the

Memorandum of Understanding had already been signed. Subsequently, the

Director of Communications told him that the Memorandum of Understanding had

already been signed. He then phoned the Attorney – General to find out whether

or not the parties could proceed with the Memorandum of Understanding

considering that it had already been signed. The Attorney – General responded

that his legal opinion was still in force.

The witness further testified as follows; all documents that relate to

Expenditure or Procurement ought to be signed by the Controlling Officer. He did

not at any time meet officials from R.P Capital Partners. To his knowledge, the
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Memorandum of Understanding did not come through the Ministry’s Procurement

Committee. He was not aware if the Minister of Finance had given authority to the

Minister of Communications and Transport to sign the Memorandum of

Understanding.

In cross –examination, the witness responded as follows: he saw the

Memorandum of Understanding for the first time when he was giving his

testimony before the Tribunal. He did not recall seeing a draft of it. He could not

remember the contents of the Memorandum of Understanding. The Minister could

sign a Memorandum of Understanding if it did not commit the Government to

expenditure. It was possible that he may have signed letters concerning the

Memorandum of Understanding before he left the Ministry. He only became

aware that the Minister had signed the Memorandum of Understanding after he had

received the Attorney – General’s legal opinion.

The fifth witness on this allegation was Ms Rosemary Ndeleki, Secretary of

the Valuation Surveyors Registration Board. Her testimony was as follows; among

her several duties, she kept a record of all Valuation Surveyors. The Board was

empowered to regulate the practice of Valuation Surveying in Zambia. The

practice of valuation surveying was governed by the Valuation Surveyors Act,

Chapter 207 of the Laws of Zambia. The Act did not register firms but a firm,

either local or foreign could employ a person who was registered to practice. So
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far, there was not registered any surveyor who had notified the Board that he was

practicing under R.P Capital Partners limited.

In cross – examination, the witness responded that firms whether local or

foreign, could employ Valuation Surveyors registered in Zambia.

The sixth witness on this allegation was Mr. Ceaser Siwale, the Chief

Executive Officer of a firm called Pangea Security. His testimony was as follows;

his firm was known on the Zambia Market for trading in shares. The firm also

provided other services such as valuation of companies. He had heard of a

company known as R.P Capital Partners Limited. His firm had never been

approached by R.P Capital Partners Limited to undertake the valuation of

ZAMTEL. He had known Mr. Henry Banda as a friend for eight to nine years.

Mr. Henry Banda’s father was the President of the Republic of Zambia. Sometime

in November, 2008, the witness had some discussion with Mr. Henry Band during

which Mr. Banda asked if the firm, Pangea Securities, could provide any support to

R.P Capital Partners on the valuation of ZAMTEL since the firm was involved in

that line of business. The witness did not know the relationship if any, that Mr.

Henry Banda had with R.P Capital Partners. He did not find out the capacity in

which Mr. Henry Banda was making the inquiry.

In cross – examination, the witness said that Mr. Banda was an adult.

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The seventh witness on this allegation was Honourable Dora Siliya; her

testimony was as follows; she did indeed sign the Memorandum of Understanding.

That Memorandum of Understanding was signed on the 22nd December, 2008.

However, discussions between her Ministry and the Ministry of Justice continued.

This was because certain issue had not been covered in Memorandum of

Understanding. One such issue was that the role of the Zambia Development

Agency in the valuation and possible sale of ZAMTEL needed to be more

pronounced and clear in the Memorandum of Understanding. Further, there were

other issues that were subsequently raised by the Attorney – General in his letter of

the 5th January, 2009. As a result of those discussions she signed another

Memorandum of Understanding on the 9th January, 2009. The first letter of legal

advice from the Attorney – General’s Chambers dated the 21st November, 2008

had proposed some amendments to the daft Memorandum of Understanding but it

did also state that the Memorandum of Understanding could be executed as long as

the proposed amendments were made. On the 25th November, 2008 the Solicitor

General did render follow-up advice on the Memorandum of Understanding. Upon

receipt of that legal advice, she instructed the Director of Planning and the Director

of Communications in her Ministry to consider the Solicitor General’s advice.

She did hold several meetings with the Minister of Commerce as well as the

Board of Directors of ZAMTEL. One particular meeting was convened at which


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the Minister of Commerce, the Board Chairman of ZAMTEL, officials from the

Ministry of Communications and Transport, a representative from the Zambia

Development Agency and a representative of R.P Capital Partners Limited were in

attendance. The purpose of the meeting was for the parties to discuss how they

were going to carry out the valuation of ZAMTEL with R.P Capital Partners

Limited. The discussions would form the basis for the preparation by the

Ministries of Finance and National Planning, Commerce, and Communications and

Transport of a joint Cabinet Memorandum to be presented to the Cabinet. These

Ministries would explain to the Cabinet the problem that ZAMTEL was facing.

They would also provide solutions and then seek Cabinet’s guidance. The

Government’s stake in ZAMTEL would not be sold without the approval of

Cabinet. To–date, she had not yet obtained Cabinet approval to sell ZAMTEL.

On the 5th December, 2008 she did receive a letter from the Solicitor –

General. She then wrote some notes on the letter addressed to the Permanent

Secretary and the Director of Planning in the Ministry for their action. The two

officials subsequently reported back to her that the desired action had been taken.

The Director of Planning, whose office dealt with agreements such as the

Memorandum of Understanding, then reported to her that the Memorandum of

Understanding was now ready for signing. She then signed the Memorandum of

Understanding with the blessing of the Solicitor – General. She also subsequently
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signed Memorandum of Understanding dated the 9th January, 2009 in order to

incorporate the observations made by the Attorney – General in his letter of the 5th

January, 2009. There were instances when the Attorney – General’s Chambers

would send some legal advice tendered to her Ministry, such as the opinion that

was rendered to her Ministry regarding the Build Own Operate and Transfer

agreement of the inland Dry Ports. In that instance the Solicitor – General sent to

her Ministry some legal opinion tendered by one of the Legal Counsel in the

Ministry of Justice on the agreement. Subsequently, the Attorney –General also

sent to her Ministry, the same opinion by that particular legal Counsel.

Hon. Dora Siliya produced the following documents:

(i) an initialed copy of the Memorandum of Understanding signed on the 22nd

December 2008, Exhibit P57

(ii) copy of the second Memorandum of Understanding signed on the 9th

January, 2009 Exhibit P58

(iii) an Internal Memorandum from the Acting Permanent Secretary in

her Ministry to her office dated 21st November 2008-marked Exhibit

P59

(iv) a copy of a letter from the Solicitor – General to her Office dated

25th November, 2008 Exhibit P60

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(v) A letter from the Solicitor – General to her office dated the 5th December,

2008 and marked Exhibit “P61”

(vi) Correspondence from the Attorney-General and the Solicitor –

General on the Inland Dry Ports agreement marked Exhibit P62.

In cross – examination, the Hon. Dora Siliya replied as follows; she was aware

that the Zambia Development Agency was under Ministry of Commerce. She was

aware that ZAMTEL had been scheduled for privatization. The Ministry of

Communications and Transport initiated the valuation. The decision to sell

ZAMTEL, however had not yet been made to – date. The decision to value the

assets of ZAMTEL was made in consultation with the Ministry of Commerce.

In August, 2008, a businessman in the telecommunications industry, Mr.

Francis Mwanamuke, made an appointment through her office to meet her. On the

day appointed for the meeting, Mr. Francis Mwanamuke, came with

representatives of R.P Capital Partners Limited and representatives of an Israeli

company the name she could not remember. She called for the Director of

Planning and the Director of Communications to be present at the meeting. The

meeting was also attended by the Chairman of the Board of Directors of ZAMTEL

and the Permanent Secretary in the Ministry. The visitors made a presentation.

She asked them to go and write an expression of interest. The expression of

interest however came only from the Israeli company. That company’s interest,
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was to buy equity in ZAMTEL. Previously she had received expressions of

interest from several companies based in various countries. The interest of all

these companies was either to buy equity in ZAMTEL or to buy the whole concern

altogether. Towards the end of September, 2008, the Ministry received another

request from R.P Capital Partners limited for a meeting. At the meeting R.P

Capital Partners Limited said that they were now interested in valuing the assets of

ZAMTEL before privatization. Their interest was different from those of the

others and was in line with the Ministry’s agenda at the time because it had been

pointed out during one of the Ministry’s internal meetings that one of the reasons

that privatization had not been successful in the past was because there had been

lack of knowledge on the value of a particular company before it was privatized.

Hence the Ministry had felt that ZAMTEL should be valued so that the Ministry

could make a business decision. R.P Capital Partners Limited thereafter had

several meetings with the Director of Planning and the Director of

Communications in the Ministry. In the process, R.P Capital Partners submitted a

dossier about themselves. Her officials were happy about it and made

recommendations. She acted on those recommendations. Everything that the

Ministry did as far as R.P Capital Partners Limited was concerned was done

through the office of the Permanent Secretary.

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Although the privatization of ZAMTEL was still in the preliminary stage,

the Ministry wanted to work through the Zambia Development Agency which

would be at liberty to sub-contract a local expert.

It was not true that she had any contact with R.P Capital Partners Limited.

She had never heard of them until Mr. Mwanamuke brought them to her office.

She did not deal directly with the Memorandum of Understanding. Her

officials in the Ministry did. No letter was written to the Attorney –General

concerning the second Memorandum of Understanding. However a decision was

made to sign it after consultation with the Solicitor – General. She did seek

permission from the Minister of Finance and National Planning to sign the main

Memorandum of Understanding. She had written to the Minister of Finance and

National Planning and the Minister of Commerce sometime in November or

December 2008. She received no response from both Ministers. The authorization

however was not in writing. The valuation of ZAMTEL was not decided by

Cabinet.

The Memorandum of Understanding signed on the 22nd December, 2008 had

financial implications. The Ministry did not obtain written assurance of

availability of funds because by then that law had changed, therefore, it was no

longer necessary to do so as long as the financial implications were within the

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Ministry’s threshold. At present there was no obligation on the Government to pay

the fees indicated in this Memorandum of Understanding. In her Ministerial

Statement to Parliament she did not mention the proposed fees of US$ Two

Million and 5% of the proceeds of the sale of ZAMTEL because the Government

had not yet made that commitment. The commitment had not yet been made to

pay those fees because they would only become payable if ZAMTEL were sold.

However, the sale of ZAMTEL had not yet been decided by Cabinet. The Ministry

did not invite any other company to present a proposal for the valuation of

ZAMTEL. Under the Memorandum of Understanding the Government only

committed itself to paying a sum of US$50,000. During further consultations, the

Solicitor General advised that the Zambia Development Agency prepare the

second Memorandum of Understanding. This is the Memorandum of

Understanding that was signed on the 9th January, 2009.

The eighth witness on this allegation was the Solicitor - General Mr.

Dominic Sichinga, who was summoned to testify by the Tribunal. His testimony

was as follows; among his many duties as Solicitor – General was the duty to

render legal opinion to Government Ministries and Departments. He had seen

various version of the Memorandum of Understanding in issue. The Attorney-

General’s chambers had first written a legal opinion to the Ministry of

Communications and Transport on the 21st November, 2008. The opinion related
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to the first draft of the Memorandum of Understanding. After the legal opinion of

the 21st November, 2008 had been sent, he received a telephone call from Hon.

Dora Siliya requesting for a meeting to discuss the opinion. Hon. Dora Siliya

informed him that while she had understood the contents of the legal opinion, she

felt that the Attorney – General’s Chambers had misunderstood what the Ministry

of Communications and Transport was trying to achieve. Hon. Dora Siliya

explained that the essence of the Memorandum of Understanding was not the sale

of ZAMTEL. The Memorandum of Understanding was for the valuation of the

assets of ZAMTEL and that the basis of that valuation was what the Ministry

would present to Cabinet. With this explanation, the Hon. Dora Siliya asked him

to re-look at the legal opinion that was tendered on 21st November, 2008. On that

understanding, he reviewed the legal opinion of the 21st November, 2008 and

rendered another legal the opinion of the 25th November, 2008. Hon. Dora Siliya

had indicated that the Ministry did not want a binding contract. The Ministry had

insisted on a Memorandum of Understanding because according to their

understanding the Memorandum of Understanding would only express their

intentions. Therefore in his legal opinion of the 25th November, 2008, he pointed

out that notwithstanding that the agreement was titled “Memorandum of

Understanding” in his view its contents showed that the parties intended to be

legally bound. He had also been concerned with the sum of US$ Two Million

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expressed to be payable in the Memorandum of Understanding. Hon. Dora Siliya,

however, had said that the sum would only become due in the event of ZAMTEL

being sold and that for the Ministry’s purposes the costs would only amount to

US$50,000. Therefore, in his legal opinion of the 25th November 2008 he also

cautioned the Ministry to ensure that the sum of US$ 50,000 was within the

Ministry’s threshold. He also advised that the reference to the sale of ZAMTEL be

excluded. He also advised that seat of arbitration be Lusaka. He further advised

that there should be a portion for a witness to sign. During the meeting with Hon.

Dora Siliya, there was only himself and herself present. After he had rendered his

opinion on the 25th November, 2008, he had a further telephone conference with

the Hon. Dora Siliya which was initiated by herself. Again the Hon. Minister

sought clarification on the legal opinion which he had tendered on 25th November,

2008. He explained to Hon. Dora Silya his advice part by part. During the

discussions other issues arose especially the role of the Zambia Development

Agency. He advised Hon. Dora Siliya that if the eventual intention of the

government would be to sell the assets of ZAMTEL, then the Zambia

Development Agency would have to come on board. He also advised that since

the Zambia Development Agency was a body corporate with its own legal Counsel

it would be better if they had an input on what should be contained in the

Memorandum of Understanding. Eventually he received a draft in which he saw

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that the Zambia Development Agency had been made a party. At that point he was

satisfied that should there eventually be a sale of ZAMTEL, the Zambia

Development Agency would have a part to play in accordance with the Zambia

Development Agency Act. He looked at the draft that was availed to him and went

through the points that he had raised. At that point he was satisfied that the

pertinent issues had been addressed. However there were still some issues that he

was concerned about, for example the Clause for the parties still mentioned Hon.

Dora Siliya by name. There was still reference to the sale of the ZAMTEL. There

was still also reference to payments. His comfort however lay in the fact that

Zambia Development Agency had been included and that Cabinet approval still

had to be sought. He did brief the Attorney - General about his meetings and

conference. He wrote a letter to Hon. Dora Siliya on the 5th December, 2008

stating that the Attorney-General’s Chambers would not be averse to the

Memorandum of Understanding being signed if the proposed draft was amended so

that the Minister was not reflected by name. After that advice he had little to do

with the issue concerning the Memorandum of Understanding. Up to that time he

and the Attorney – General had been in agreement regarding the legal advice

rendered. Subsequently, however, the Attorney-General informed him that his

representative on the Board of Directors of the Zambia Development Agency had

told him that some of the members of the Board were not happy with some of the

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provisions in the Memorandum of Understanding. The Attorney–General said that

that is what had led him to write his letter of the 5th January, 2009 to the Ministry

of Communications and Transport. At that point the witness assumption was that

the Zambia Development Agency may have had a different draft from the one that

he had approved.

In cross – examination, by Counsel for the Complainants, the witness

responded as follows; he had with him a copy of the draft Memorandum of

Understanding which he approved on the 5th December, 2008. The Memorandum

of Understanding did not address most of the issues that were raised in the legal

opinions. Most of the points that were raised in the legal opinion of the 21st

November, 2008 were not considered in the signed Memorandum of

Understanding. All the points that he raised in his legal opinion of the 25th

November, 2008 were not addressed in the signed Memorandum of Understanding.

He had no occasion to interact with the technocrats in the Ministry of

Communication and Transport regarding the issue. His understanding of clause

3.3 in the Memorandum of Understanding was that payment of the sum of U$$

Two Million would only take effect upon the sale of ZAMTEL. The sale itself was

subject to Cabinet approval.

In cross – examination by Counsel for Hon. Dora Siliya, the witness replied

as follows; the client in this case was the Ministry of Communication and
25
Transport and not Hon. Dora Siliya. Attorney General’s chambers received

instructions from the Ministry of Communications and Transport on the 12th

November, 2008. The instructions were addressed to the Attorney – General. The

Attorney – General then assigned the matter to him. He then instructed Acting

Principal Counsel to peruse the draft and render a legal opinion. The Acting

Principal Counsel did so. He read the legal opinion and then instructed the Acting

Principal Counsel to convey that legal opinion on his behalf to Ministry of

Communications and Transport. He was not aware that his letter of 25th

November, 2008 was not referred to in the Attorney – General’s letter of the 5th

January, 2009. The issue of the Minister of Finance being the signatory to the

Memorandum of Understanding had not been raised in his legal opinions because

his understanding was that this was an internal consultation for the valuation of

ZAMTEL assets. He had the benefit of understanding the matter better because of

his discussion with Hon. Dora Siliya. For example, during their discussions the

issue of the involvement of the Zambia Development Agency arose. In the final

draft he saw that Zambia Development Agency had been made a party. There had

been instances when the Attorney – General’s chambers had rendered legal advice

which had subsequently been discovered to have been wrong. With the

commencement of the Tribunal proceedings he had now become aware that

26
following the Attorney – General’s letter of the 5th January, 2009 the parties had

signed another Memorandum of Understanding.

During cross – examination, the witness produced a copy of the final draft of

the Memorandum of Understanding which he approved on the 5th December, 2008

and was marked Exhibit P71.

The ninth and final witness on this allegation was the Attorney – General,

Mr. Mumba Malila. His testimony was as follows; he had seen a version of the

Memorandum of Understanding that was signed. However, the version that he saw

was not signed by the Zambia Development Agency. That particular

Memorandum of Understanding was initiated on every page by the two signatories

then. On the 12th November, 2008 a letter from the Ministry of Communications

and Transport was addressed to him. Attached to the letter was a draft

Memorandum of Understanding. The letter sought legal advice on the draft

Memorandum of Understanding. He referred the matter to the Solicitor – General

because he was going out of the Country the following day. When he returned, the

Solicitor – General briefed him about what had transpired regarding that matter.

Sometime after the 22nd December, 2008 his representative on the Board of

Directors of the Zambia Development Agency who was also Chief Parliamentary

Counsel in the Ministry of Justice gave him a file relating to the Ministry of

Communications and Transport with a request that he should review the


27
Memorandum of Understanding against the advice that was given by the Attorney

– General’s Chambers. His representative informed him that the Board of

Directors of the Zambia Development Agency had held a meeting sometime in

December, 2008 at which they had expressed very serious reservations about the

Memorandum of Understanding which they were being called upon by the

Ministry of Communications and Transport to sign. He reviewed the file and

discovered the following;

(i) The Solicitor – General had assigned the Memorandum of Understanding

to the Acting Principal Counsel in the Attorney – General’s

Chambers who gave her preliminary legal opinion to the Solicitor –

General. The Solicitor – General had endorsed the legal opinion

and advised the Acting Principal Counsel to communicate with the

client Ministry

(ii) On the 21st November, 2008. the Acting Principal Counsel wrote to the

Ministry of Communications and Transport, pointing out the short –

comings in the Memorandum of Understanding

(iii) He also saw in the file, a letter written by the Solicitor – General to

Hon. Dora Siliya. In that letter, the Solicitor – General also made

some observations and suggestions intended to make the

Memorandum of Understanding clear and also to safeguard the


28
interest of the republic. He noted also from that letter that there was

a meeting which the Solicitor – General had with Hon. Dora Siliya.

(iv) He also saw on the file a copy of a letter written by the Solicitor-

General dated the 5th December, 2008 and addressed to Hon. Dora

Siliya. In that letter the Solicitor – General indicated to Hon. Dora

Siliya that, since the suggestions and recommendations that were

made by the Attorney- General’s Chambers were being considered,

he was not averse to the Memorandum of Understanding being

signed.

(v) He also saw on the file a partially signed Memorandum of Understanding

which had the signature of the Minister of Communications and

Transport and also the signature of a representative of R.P Capital

Partners Limited. He also noticed that although there was a

provision for the signature of the Zambia Development Agency, on

behalf of the agency no one had signed. Both the two signatures

had the date of 22nd December 2008. This then tallied with the

information that he had received from his representative that the

Zambia Development Agency could not authorize that signing of the

Memorandum of Understanding before they were satisfied that the

29
contents of the Memorandum of Understanding properly

represented what they were legally obliged to do.

Upon reading the signed Memorandum of Understanding, he discovered that

the legal advice that was given by the Acting Principal Counsel on the 21st

November, 2008 had not been complied with in substance. He also noted that the

legal advice that was given by the Solicitor – General on the 25th November, 2008

was largely not taken into account in the partially signed Memorandum of

Understanding. He therefore took it upon himself to write a clear letter addressed

to the Permanent Secretary in the Ministry of Communications and Transport. In

that letter he made the following pertinent observations;

That the legal advice that was given by his chambers was ignored

a) That it was important to heed the legal advice of the Attorney- General

b) That ignoring that advice was as good as not seeking it in the first place

c) That failure to seek the Attorney-General’s advice was contrary to the

Provisions of Article 54 of the Constitution

d) That the Memorandum of Understanding was a Public Procurement

contract which involved the procurement of services. Therefore it

was important to abide by the guidelines provided in Cabinet

Circulars from time to time

30
e) That the Public Procurement Act required certain approval including that

of the Attorney-General before any contract could be entered into

and

f) That in view of the reasons that he had given the Memorandum of

Understanding should be treated as a nullity. He did not see the

second Memorandum of Understanding until in March this year.

The second Memorandum of Understanding was never taken to the

Attorney-General’s Chambers for approval. It was brought to his

attention by his representative on the Board of Directors of the

Zambia Development Agency. It had not been on the file when he

wrote his letter of the 5th January, 2009

The financial implications contained in Clause 3 of the Memorandum of

Understanding were such that in the event that there would be a sale of ZAMTEL,

R.P Capital Partners Limited would receive 5% of the proceeds. In the second

instance, RP Capital Partners Limited would receive US$ Two Million in any

event. In terms of the Zambia Public Procurement Act, there would have to be a

tender of same sort and there would have to be evidence of money being available.

On the file, these two elements were not covered. If there were to be neither the

valuation nor the sale of ZAMTEL, then it was the view of his office that the

31
Government would be in breach of an obligation that it had entered into in the

Memorandum of Understanding.

In cross-examination by Counsel for the Complainants the witness replied as

follows; the Memorandum of Understanding is binding on the Government. His

understanding of the agreement was that the sum of U$$ Two Million was a fixed

fee. At the time that he wrote his letter of the 5th January, 2009, there were only

two signatures. Therefore, he felt that after his observations Hon. Dora Siliya and

the Permanent Secretary would go back to RP Capital Partners to renegotiate so

that they could re-do the Memorandum of Understanding. From the file at the

Attorney-General’s chambers the Minister of Finance did not designate the Hon.

Dora Siliya to sign the Memorandum of Understanding on behalf of the

Government

In cross-examination by Counsel for Hon. Dora Siliya, the witness replied as

follows; the opinion of the Acting Principal Counsel dated the 21st November,

2008 gave conditional clearance subject to the amendments proposed in that

opinion. In his view the letter written by the Solicitor-General did not contain any

substantive issues. He did not want to lay much premium on that letter. It was

unclear or ambiguous. He preferred the initial legal opinion which the Solicitor

General had endorsed. The Memorandum of Understanding referred to both the

sale and the valuation of ZAMTEL. His representative had informed him that the
32
Board of Directors of the Zambia Development Agency had raised serious

reservations about the Memorandum of Understanding and that they had felt that

his chambers had mishandled the issue. The Board members said that the Attorney

– General should personally handle the issue. When he saw the second

Memorandum of Understanding, he enquired from his representative whether the

Board of Directors had resolved to sign it. The representative responded that she

was not aware about the second Memorandum of Understanding.

That was the evidence on this allegation

From that evidence and the documents produced, the following facts are not in

disputes;

1. In or about the month of August, 2008, a Mr. Francis Mwanamuke

approached Hon. Dora Siliya, seeking a business meeting

concerning ZAMTEL

2. The request was granted and an appointment was made

3. On the appointed day Mr. Francis Mwanamuke came with representatives

of two companies – RP Capital Partners and an Israeli Company

4. At the Conclusion of the meeting the Hon. Dora Siliya and her officials in

the Ministry requested the two companies to write expressions of

interest regarding ZAMTEL

33
5. The Israeli company responded to the request and presented its expression

of interest while R.P Capital Partners Limited did not. In its

expression of interest, the Israeli Company expressed its desire to

buy equity in ZAMTEL

6. In or around the month of September, 2008 the representatives of R.P.

Capital Partners Limited approached Hon. Dora Siliya again,

seeking a second business appointment concerning ZAMTEL. The

appointment was granted

7. On the appointed day, the representatives of R.P Capital Partners Limited

presented a proposal to value the assets of ZAMTEL prior to its

privatization.

8. Being happy with that proposal, Hon. Dora Siliya handed the

representatives over to the officials in the Ministry to pursue the

proposal further

9. A series of meetings took place between officials in the Ministry and

representatives of R.P Capital Partners Limited during which the

officials expressed to Hon. Dora Siliya their satisfaction with the

credentials of R.P Capital Partners Limited

10. As a consequence of those meetings the parties agreed to enter into a

Memorandum of Understanding

34
11. On the 12th November, the Acting Permanent Secretary in the Ministry

sent to the Attorney-General a draft of the intended Memorandum

of Understanding for legal advice.

12. The Attorney-General assigned the matter to the Solicitor-General who

also assigned it to the Acting Principal Counsel

13. On the 21st November, 2008 the Acting Principal Counsel wrote to the

Permanent Secretary in the Ministry of Communications and

Transport rendering legal advice on the draft Memorandum of

Understanding

14. Upon perusal of that legal advice, Hon. Dora Siliya convened a meeting

with the Solicitor-General

15. Pursuant to that meeting, the Solicitor – General wrote to the Hon. Dora

Siliya on the 25th November, 2008 rendering further legal advice.

16. A further tele-conference was held between Hon. Dora Siliya and the

Solicitor-General

17. Following that teleconference, the Solicitor – General was availed another

draft Memorandum of Understanding on the 4th December, 2008

18. On the 5th December, 2008, the Solicitor – General wrote to Hon. Dora

Siliya indicating that the parties could proceed to sign the

35
Memorandum of understanding provided that two more

amendments were made.

19. On the 22nd December, 2008 the Memorandum of Understanding was

signed

20. On the 5th January, 2009 the Attorney-General wrote to the permanent

Secretary in the Ministry of Communications and Transport

pointing out that the parties had gone ahead to sign for

Memorandum of Understanding without taking into account the

legal opinion that his Chambers had rendered on the 21st November,

2008

21. On the 9th January, 2009, the parties executed a second Memorandum of

Understanding outlining the role of the Zambia Development

Agency

22. This second Memorandum of Understanding was without legal advice.

As framed by the Complainants, this allegation is in two parts. The first part is

that the Hon. Dora Siliya signed a Memorandum of understanding committing the

Government to the payment of a sum of US$ Two Million to R.P Capital Partners

Cayman Islands Limited, after ignoring the professional advice of the Attorney-

General’s Chamber.

36
It has been submitted on behalf of the second complainants that Hon. Dora

Siliya ignored the professional advice from the Attorney-General’s Chambers in

that she did not address all the concerns that the Solicitor –General had raised.

It had been submitted on behalf of Hon. Dora Siliya that the Solicitor – General

advised the client Ministry to sign the Memorandum of Understanding because as

he understood it, that Memorandum of Understanding was only based on the

internal valuation of ZAMTEL assets and not its sale which would require the

approval of cabinet. It was submitted further that the Attorney – General, on the

other hand, concentrated on the sale of ZAMTEL. It was submitted, therefore, that

there was a clear conflict in the manner in which this issue was understood within

the Attorney–General’s Chambers to this extent that the testimonies of the

Solicitor–General and the Attorney-General were at variance. The Tribunal was

therefore invited to make a finding in favour of the Hon. Dora Siliya.

As far as we see it the fundamental advice from the Attorney-General’s

chambers was first contained in the legal opinion rendered by the Acting Principal

Counsel on the 21st November, 2008. That fundamental advice is in paragraphs 6

and 8 of that legal opinion. In paragraph 6 of the legal opinion, it is clear that the

draft Memorandum of Understanding which the Attorney-General’s Chambers had

perused contained financial implications on the part of Government. The financial

implications were (a) reimbursement of expenses incurred by R.P Capital Partners


37
Limited and (b) payment of a transaction fee of a percentage of proceeds of the

sale of ZAMTEL. The Attorney-General’s Chambers advised the client Ministry

to comply with Cabinet Circular No. 4 of 2004 with regard to the provision of

evidence that the agreement had been approved by the Zambia National Tender

Board. In paragraph 8 the Attorney-General’s Chambers advised that since R.P

Capital partners Limited were being appointed exclusively as to consultants and

transaction advisors of the government, there was need for the client Ministry to

provide evidence that the necessary tender process had been complied with in

terms of the appointment of R.P Capital Partners Limited.

As we have stated during the review of the evidence, upon receipt of the legal

opinion of the 21st November, 2008, Hon. Dora Siliya called for a meeting with the

Solicitor-General at which she explained to him that the Memorandum of

Understanding was not about the sale of ZAMTEL but was about the initial

valuation of ZAMTEL assets before Cabinet made a decision on what was to be

done about ZAMTEL. Pursuant to this meeting, the Solicitor – General wrote a

further opinion to Hon. Dora Siliya. In that legal opinion, the Solicitor-General

stated that pursuant to the briefing he had received during his meeting with Hon.

Dora Siliya, he now understood the Memorandum of Understanding to be

concerned with the initial consultation ahead of any Cabinet decision to sell

ZAMTEL. However, the Solicitor-General cautioned the client Ministry to ensure


38
that the expenses of US$50,000 were within the Ministry’s threshold for tender

purposes.

The Solicitor-General also advised the Ministry to delete the clause which dealt

with payment of the transaction fees since, in his view, that could be dealt with in a

new Memorandum of Understanding once Cabinet had made a decision to sell

ZAMTEL

Following this opinion, Hon. Dora Siliya again had a tele-conference with the

Solicitor-General. Pursuant to that conference, the Solicitor-general was availed

with a further draft of Memorandum of Understanding. Upon perusal of this draft

the Solicitor-General wrote a further legal opinion to Hon. Dora Siliya in which he

only raised one fundamental issue of concern. That concern was that individuals

should not be named in the parties’ clause. With that observation, the Solicitor-

General cleared the Memorandum of Understanding for signing.

A perusal of the draft which was availed to the Solicitor-General shows the

following;

(i) the proposed Memorandum of Understanding mandated the Government

to appoint R.P Capital Partners Limited to provide consultancy

services and advice regarding the valuation and potential sale of

ZAMTEL

39
(ii) among the services, R.P Capital Partners Limited were mandated by the

proposed agreement to provide assistance in negotiations with

prospective buyers of ZAMTEL and to render project management of

the potential ZAMTEL sale

(iii) Once R.P. Capital Partners Limited had provided services concerning

negotiations with prospective buyers and project management of the

sale process, they would be entitled to a transaction fee of 5% of the

sale proceeds.

Clearly the draft agreement had outlined commitments for either party lending

up to the sale of ZAMTEL. Therefore, while Hon. Dora Siliya may have

convinced the Solicitor-General that the Memorandum of Understanding was

merely concerned with the initial valuation of ZAMTEL, the draft that was before

the Solicitor-General clearly stated otherwise. In fact, contrary to the Solicitor-

General’s advice of the 25th November, 2008 that the issue of the sale of ZAMTEL

and the remuneration for services to be provided in connection with that sale be the

subject of a new Memorandum of Understanding when Cabinet had approved the

sale, the draft before him dealt with everything and did not give room for any

further Memorandum of Understanding. It is therefore inexplicable that the

Solicitor-General overlooked the earlier legal opinions and cleared the draft for

signing.
40
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.

The second aspect of the legal advice is that which came from the Attorney-

general on the 5th January, 2009. The opinion pointed out the several deficiencies

contained in the Memorandum of Understanding that was signed on the 22nd

December, 2009. Finally the Attorney-General advised that the signed

Memorandum of Understanding be treated as a nullity and that the same be re-

done, following the necessary processes. A few days after that the parties signed

another Memorandum of Understanding spelling out the role of the Zambia

Development Agency. In her evidence, Hon. Dora Siliya said that the second

Memorandum of Understanding was signed after taking into account some of the

concerns raised by the Attorney-General on the 5th January, 2009 and upon further

consultation with the Solicitor-General. The Solicitor- General, however, said that

after his last legal opinion of the 5th December, 2008, he did not deal with the issue
41
any further. He denied any knowledge of the second Memorandum of

Understanding executed on 9th January 2009 after the advice from the Attorney-

General of 5th January 2009.

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. Further the role spelt out for the Zambia

Development Agency in the second Memorandum of Understanding is merely that

of providing supervision over R.P Capital Partners Limited. Therefore the second

Memorandum did not address the chief concerns raised by the Attorney-General.

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.

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

42
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.

Therefore it is clear that Hon. Dora Siliya ignored the Attorney-General’s

advice of the 5th January, 2009.

The Second limb of this allegation is that Hon. Dora Siliya signed a

Memorandum of Understanding with R.P Capital Partners Limited thereby

committing the Government to payment of a sum of US$ Two Million without

following tender procedures.

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.

43
Our view is supported by the following observations we wish to make about the

Memorandum of Understanding;

(a) the Memorandum of Understanding does not contain any clause

stating that its performance is contingent upon Cabinet’s approval

of the sale of ZAMTEL

(b) Clauses 4.1 of the Memorandum of Understanding provides that

R.P Capital Partners limited shall commence providing the services

agreed upon from the date of the signing of the Memorandum of

Understanding and

(c) Clause 3.6 of the Memorandum of Understanding implores the

parties to it to act in good faith in order not to circumvent the right

of R.P Capital Partners Limited to receive and collect the

Transactions fees under the Memorandum of understanding.

Therefore, we do not accept the position that the sale of ZAMTEL is

subject to Cabinet approval.

During the proceedings, the Tribunal heard that the current maximum threshold

of a Ministry in respect of consultancy services for tender purposes is K7 billion.

It was submitted on behalf of Hon. Dora Siliya that the Government commitment

44
in the Memorandum of Understanding was only Limited to a sum of US$50,000

which was far below the Ministry’s threshold.

The alleged breach of tender process can be looked at from two aspects:

(i) Tender process in terms of the Ministry’s threshold

(ii) Tender process in terms of the selection of R.P Capital Partners Limited.

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.

45
In the second aspect, it should be pointed out that R.P Capital Partners

Limited simply secured an appointment with Hon. Dora Siliya and then on the

appointed day they presented to her and her officials a proposal to value ZAMTEL.

The Ministry then accepted that proposal and proceeded to enter into negotiations

which culminated into the Memorandum of Understanding which is in issue.

According to Hon. Dora Siliya’s testimony the proposal was accepted because it

was different from the other expressions of interest. Hon. Dora Siliya said that R.P

Capital Partners were chosen on the basis of “Limited Selection.”

The Public Procurement Act no. 12 of 2008 defines “Limited Selection” as

“a procurement method for consulting services where bids are obtained by direct

invitation to a shortlist of bidders, without open advertisement.” The Ministry

did not select R.P Capital Partners from any shortlist of bidders maintained. In fact

R.P Capital Partners just went to the Ministry and got themselves a Memorandum

of Understanding. 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

46
Limited. It is not the law that the selected tender supplier presents a different

proposal from others.

There was a further issue raised by the Complainants in their submissions.

The Complainants submitted that the Honorable Minister of Communications and

Transport used information obtained by virtue of her position as a public officer to

the advantage of R.P Capital Partners thereby causing a detriment to the

government.

We must state that there was no evidence to show that the Minister did

actually share certain information with R.P Capital Partners Limited which they

then used to secure the current agreement. However, those submissions by the

Complainants arise from certain circumstances revealed by the evidence. The

circumstances are as follows; it was the feeling by the Ministry and other

stakeholders that any decision on ZAMTEL should be preceded by an internal

valuation of its assets so that the government may make a second decision. This

feeling was not made known to anyone outside that circle of stakeholders. In the

meantime the Ministry was receiving expressions of interest on ZAMTEL.

However, all those expressions went either for the outright purchase of ZAMTEL

or for the acquisition of equity as in the case of Francis Mwanamuke who

presented to the Minister two companies, that is R.P Capital Partners Limited and

an Israeli Company. When the two companies were asked to submit expressions
47
of interest, only the Israeli company did so while R.P Capital Partners Limited did

not. The Israeli company expressed interest in acquiring equity in ZAMTEL. A

month later R.P Capital Partners Limited alone secured an appointment with the

Minister where they presented a proposal to value the assets of ZAMTEL. This

proposal was immediately accepted and R.P Capital Partners Limited were

awarded the agreement to value the assets. At the legal opinion stage, the Minister

was directly and personally involved in persuading the Solicitor-General to render

an opinion that was against a very clear document that stated matters differently.

In the conduct of public affairs, public officers are supposed to be seen to act

above-board. The circumstances outlined above surely give room for a lot of

suspicion on the conduct of the Minister. R.P Capital Partners were introduced to

the Ministry through her. It becomes too much of a coincidence that a company

that was introduced through the Minister was the only one but “Suessed” the

feeling of the stake holders correctly, more so that it took them time after being

introduced to the Minister to come up with that proposal. The suspicions become

compounded by the fact that R.P Capital Partners Limited were selected in

contravention of the Public Procurement Act and Minister’s involvements in

securing a legal opinion that eventually approved the Memorandum of

Understanding in its current form. We certainly are of the view that the Minister

did not act above-board in this matter. However as we have stated, there was no
48
evidence that she actually shared information with R.P Capital Partners Limited.

Therefore we do not find her guilty of misconduct in this regard.

The Second allegation was that Hon. Dora Siliya did arbitrarily cancel a duly

awarded contract by the Zambia National Tender Board (ZNTB) for the supply,

delivery, installation and commissioning of a Zambia Air Traffic Management

Surveillance Radar System of Lusaka and Livingstone International Airports

awarded to Thales Air Systems of South Africa in favour of Selex Sistemi Integrati

of Italy.

The evidence adduced by the first Complainant and the Consortium of ten

(10) Civil Societies touching this allegation was firstly generally from Mr. William

Harrington, Mr. Reuben Lifuka and Hon. Mr. Given Lubinda. Mr. Harrington

testified as to how he lodged the Complaint with the Hon. Chief Justice after he

read in the print media of the allegation. He testified that he made the Complaint

as a concerned citizen under Section 13 (1) as read with section 4 (a) (b) of the

Parliamentary and Ministerial Code of Conduct. His evidence is basically hearsay

based on press reports. The same can be said of Mr. Lifuka’s evidence. As for

Hon. Lubinda’s evidence, as we said in the preliminary remarks his evidence was

that after reading the allegations in the print media he took on the Post Newspaper

and through Mr. Malupenga, he obtained copies of documents which supported the

allegations and he produced them as Exhibits “P1” to Exhibits “P18”. But at the
49
end of the day, in all fairness, he admitted that if he had put the documents relating

to the second allegation in proper sequence, he would have seen and concluded

that Hon. Siliya did not cancel the contract awarded to Thales Air System but that

he felt that the manner in which the Ministry of Communications and Transport

and the Zambia National Tender Board handled the matter was not proper, without

elaborating the improper manner in which the two institutions mishandled the

tender process.

The other evidence that slightly touched this second allegation was from the

Managing Director of National Airport Corporation. His evidence was mainly on

the repair of the existing radar at Lusaka International Airport. His main concern

was that he expressed surprise when Selex Sistemi Integrati company who were

the original suppliers of the radar changed the opinion from “that the radar was

obsolete to repair to one that they would repair the radar”. He rendered his

observations that although Selex Sistemi Integrati had offered to repair the radar

free of charge, there were hidden expenses such as replacement of observation

panels, training of personnel and supply of spares which he estimated would cost

the Government some K26 billion. He recommended that the offer should not be

accepted. He testified that he was not involved in the tender process for the new

radar but he was surprised that after the closure of the tenders, Selex Sistemi

Integrati came to his Company’s premises and wanted to leave tender documents

50
there, but he refused and advised Selex Sistemi Integrati to deliver the documents

at Zambia National Tender Board Offices.

The Complainants called 4 witnesses to specifically support this allegation.

The first was Isaac Mukupa who is a Purchasing and Suppliers Officer or Director

of Purchases and Supplies at the Ministry of Communications and Transport. The

gist of his evidence was that the Ministry Communications and Transport as parent

Ministry of National Airport Corporation wanted to acquire Surveillance Radar

system at Lusaka and Livingstone Airports. Tenders were advertised through the

Zambia National Tender Board as the value of work was beyond the threshold of

the Ministry. He was involved in tender process and he was in fact secretary for

the evaluation Committee that evaluated the tender bids when they were closed.

The Evaluation Committee was composed of 11 members drown from the

Ministry, Department of Civil Aviation, National Airport Corporation, Zambia Air

Force and the Zambia National Tender Board. After the bids were evaluated,

Thales Air System S.A. was selected and the Central Tender Committee of the

Zambia National Tender Board endorsed the selection. While the matter was still

with ZNTB he was shown, by Hon. Siliya, a letter addressed to the Director

General of the Zambia National Tender Board and copied to her and Anti

Corruption Commission, this letter was by “a concerned tax payer.” In this letter

the concerned tax payer alleged that the contract was not transparently done and

51
alleged some inappropriate conduct by the Ministry official involved in the Tender

process alleging that the selected bidder entertained the officers to influence them

to award the contract to him. The Hon. Dora Siliya wanted a report from him. He

duly submitted the report to Hon. Minister, Hon. Dora Siliya and the Permanent

Secretary. In the report he denied any inappropriate conduct on the part of the

officials and that the whole process was transparent and according to Rules and

Regulations. He advised against the Ministry getting involved in the tender

process as it was beyond their threshold.

It was also the evidence of this witness that Selex Sistemi Integrati did not

lodge any bid for this tender. Further that although the Hon. Dora Siliya wanted

the whole tender process re-done, this was rejected by the Zambia National Tender

Board and as of now, the tender award to Thales Air System S.A. is still subsisting

and valid.

The second witness was Dr. Eustern Mambwe who was the Permanent

Secretary at the Ministry of Communications and Transport at the material time of

tendering for the Radar System. He told the Tribunal that as Permanent Secretary,

he was the Chief Executive Officer and Procurement Officer of the Ministry and

that in the capacity he was the Chairman of the Ministry’s Tender Committee. The

material evidence in relation to Radar was that the project was initiated by the

Minister of Communications and Transport then, Hon. Sayifwanda in her letter to

52
Minister of Finance and National Planning, Hon. Magande dated 25th February

2008 where she asked for funds. The Minister’s letter was followed by other

letters written by the then Permanent Secretary Mrs. M .L. N. Zimba dated 14th

February 2008 in 10th April 2008. The Permanent Secretary wrote to the Secretary

to Treasury. The Secretary to the Treasury replied in his letter dated 23rd April

2008 and which he asked the Permanent Secretary to get guidance on the tender

procedure from the Zambia National Tender Board. The tender process then

commenced and when Hon. Siliya moved to the Ministry of Communications and

Transport as Minister towards the end of February 2008, the process had already

started. The tender process was done by the Zambia National Tender Board with

the involvement of the Ministry of Communications and Transport. When the

Evaluation Committee had finished evaluating the tenders, they recommend the

award of tender to Thales Air Systems S.A. and the Central Tender Committee

endorsed this and wrote to the Ministry authorizing them to make an offer and

process the contract. The witness, who by then was Permanent Secretary,

Communications and Transport wrote to Thales Airport Air System S.A. on 11th

December 2008. In the meantime a “concerned tax-payer” wrote to Director

General of Zambia National Tender Board and copied his letter to Hon. Siliya and

to the Anti Corruption Commission. The concerned tax-payer pointed out a

number irregularities in the Tender process and she asked the Director-General to

53
Investigate. This letter seems to have aroused Hon. Siliya’s interest in the Radar

Tender process and asked for a report from the witness. The witness in turn asked

Head of Procurement and Supplies Unit to investigate and render a report. A

report was duly rendered. Hon. Dora Siliya was not satisfied as a result of which

she instructed him to tell the Zambia Tender Board to suspend the process already

began and re-do the tender by selective bidding, asking only manufactures to bid.

He wrote to the Director – General, Zambia National Tender as instructed by the

Honorable Siliya but the Tender Board refused to re-do the process saying that the

process was done according to the Rules and Regulations and was transparent.

The witness further testified that as far as he was concerned the Minister is

not supposed to be involved in the procurement of goods and services. The

witness also said that as far as he knows, the Tender awarded to Thales Air System

S.A. was still valid and not cancelled.

The third witness touching the second allegation was Mr. David Kapitolo,

Director – General of the Zambia National Board now known as Zambia Public

Procurement Authority (ZPPA). He testified that they were now operating under

the Public Procurement Act and their main duty is to superintend the procurement

of goods and services by public sector institutions where the goods and services are

above the thresholds of the respective Institutions. These public sector institutions

include Government Ministries and Departments, Parastatal and Local Government

54
sector involving City Councils and other Councils. He told the Tribunal that as of

now, there is in place an interim Central Tender Committee which has 14

members.

Mr. Kapitolo explained the procedure for tendering which is that when a

procuring entity wants to tender above its threshold, it will ask the Central Tender

Committee to do the tender. The Central Tender Committee, through the

Secretariat in ZPPA will ask the procuring entity for technical details of the goods

and services required and also to confirm that funds are available for the project.

Once this is done, the process of tendering is commenced and it can either be open

tender or selective tender depending on the goods or services required by the

requesting institution. In case of open tender, the tender is floated publicly by

advertisements and tender bids/documents are sold and a closing date is set. On

the closing date, the tenders are opened in the presence of the bidders or

representatives. The tendered bids are then evaluated by a Technical Committee

that will include the requesting entity. After the Evaluating Committee has

evaluated all the tender bids, they make recommendations to the Central Tender

Committee which considers the recommendations and if agreed, the requesting

entity is informed and authorized to award the offer. This is communicated to the

Controlling Officer or the Chief Executive Officer of the entity that requested for

55
tender. The Controlling Officer writes to the successful bidder enclosing a copy of

the proposed contract and negotiations begin.

With regards to the Radar tender, the witness recalled receiving a request

from Ministry of Communications and Transport on the procedure of tendering.

He advised them and the tender process began. After the whole tender process was

followed, his Institution saw 11 companies purchase the tender documents on

various dates; the first being Selex of Italy that bought tender bids on 9th July 2008

and the second one was Hua Jiong Investments Limited that bought bids on 26th

September 2008. Thales Air Systems S.A bought to bid on 11th July 2008. At the

opening of the tender on 26th September 2008 only six bids were received with

various prices. The companies that tendered at the opening of the tenders were:-

1. Hua – Jiong Investment Limited

2. Intelcan

3. China Les

4. Remet C.H.M

5. Thales Air Systems, S.A, and

6. SAAB Systems Limited

These six bidders were subjected to an evaluation process by the Evaluation

Committee consisting of eleven officers representing the Ministry of

Communications and Transport, National Corporations, Zambia Air force and the

56
Office of the President. The Director General further testified that Evaluation

Committee went through all the usual stages of evaluation process, namely the

preliminary evaluation, detailed technical evaluation, Commercial evaluation and

post-qualification evaluation and after the evaluation process, Thales Air Systems

SA was found the most responsive evaluated bidder and recommended for the

award of contract. The bids and report were further subjected to scrutiny by the

Zambia Public Procurement Authority and after that the Authority forwarded them

to Central Tender Committee. The Central Tender Committee comprising eleven

(11) members sat on 5th December 2008 and authorized the award of the contract

to Thales Air Systems S.A. at a cost of €9,050,168. The controlling officer was

duly authorized to offer the contract to Thales Air System S.A.

The Director –General also told the Tribunal that he got the letter written by

the concerned tax-payer and he did not know who brought it to the ZPPA offices

because it was left at the reception and since it was addressed to him, it was

brought to his office. On reading the letter, he told the investigative wing of ZPPA

for them to investigate the matter and establish the truth of its contents. He got the

report that the investigation wing failed to trace the author and the allegations were

not true. The Director – General confirmed receiving a letter from Hon. Siliya

asking the ZPPA to suspend the tender and re-tender but he did not act on it as the

correct procedure was not followed. However he later got another letter from the

57
Permanent Secretary conveying the Minister’s instructions to have the tender

award suspended and have it re-tendered. He replied to the Permanent Secretary

that the Zambia Public Procurement Authority would not cancel the tender as the

tender was conducted in a fair and transparent manner in compliance with the

Zambia National Tender Board Act as it existed then and it found no compelling

reason to justify cancelling the award. He further told the Tribunal that where

good reasons have been shown such as corruption or serious deviation from the

provision of the Act, the Board has cancelled the awards before.

In her defence to this allegation, Hon. Siliya told the Tribunal that when she

moved to the Ministry of Communications and Transport towards the end February

2008, she found that this question of acquiring new radar equipment for Lusaka

and Livingstone International Airports was already initiated by the former Minister

Hon. Sayifwanda. She had the chance to up-date herself on the matter through the

file at the Ministry. Sometime in November 2008, she received a copy a of letter

addressed to the Director General of Zambia National Tender Board written by

“concerned tax payer” in which the “concerned tax payer” alleged some

irregularities in the tender process for radar and this combined with the many

romours she was getting within the Ministry, she got very concerned and asked her

Permanent Secretary for a report. As the Permanent Secretary was not in the

office, she called the Chief Purchasing and Procurement officer and asked him

58
about the manufacturer’s certificate of one bidder that was filed with the Ministry

the previous day. The Chief Purchasing and Procurement Officer expressed shock

that someone knew about the manufacture’s certificate brought to the office. The

Purchasing and Procurement Officer furnished the requested report on the

concerned tax payer’s allegations but she was not satisfied with the report because

the Purchasing and Procurement Officer stated that there was no contact with the

bidders yet he had earlier said someone left a manufacturer’s certificate at the

office. She then wrote the Director General of Zambia National Tender Board

telling him that the tender be suspended and a new process be done where only

selected radar manufactures would be invited. She further testified that she never

got any response from the Director General but met him informally and told him

about it and he advised her to tell the Permanent Secretary to formally write him,

of which she did. She denied cancelling the tender or contract awarded to Thales

Air System S.A. She merely wanted the whole process re-done. She also

expressed ignorance that notification of an award had been written to Thales Air

System S.A. as the same was not copied to her.

We have considered the evidence in support of this particular allegation and

also the submissions. From the evidence we accept that when Hon. Siliya was

appointed Minister of Ministry of Communications and Transport, the process of

acquiring new radar for Lusaka and Livingstone International Airports was already

59
in progress and that she never got involved until she got a copy of a letter written

by a “concerned tax-payer” to Director General of Zambia National Tender Board.

After receiving the copy of this letter, her concerns that there was something

wrong with the tender process grew as she had been receiving some reports within

the Ministry to that effect. These concerns made her get acquainted with the file

on the radar project. From the evidence, it is clear that she wanted the tender

process re-done and asked the Zambia National Tender Board to suspend the

process. There was no evidence led to stow that she cancelled the contract with

Thales Air Systems S.A. In fact, to date no contract has been executed with Thales

Air Systems S.A, what is in place and which was refused to be cancelled was the

offer of the tender to Thales Air System S.A. Her attempts to have this offer

cancelled was rejected by the Zambia National Tender Board because it found no

basis to do so as the whole tender process followed the laid down procedures and

regulations. As was admitted by Hon. Lubinda, if the documents pertaining to the

radar tender were looked at in their proper sequence and objectively, it is clear that

there was no contract that was cancelled by Hon. Dora Siliya. Even her attempt to

suspend the tender process was not successful. The allegation is not attempting to

cancel the contract but that she cancelled the contract. Reference was made by

Counsel for the Consortium of Civil Societies to Section 75 of Public Procurement

Act, which creates an offence. But a commission of that offence does not amount

60
to breach under Parliamentary and Ministerial Code of Conduct Act in its present

form. 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. But breach of Cabinet Handbook does not amount to a

breach of the Parliamentary and Ministerial Code of Conduct Act, which is the

Jurisdiction of the Tribunal. All in all, we find no evidence to support this

allegation.

The third Complaint against the Hon. Dora Siliya was made by a Consortium of

Civil Societies comprising Transparency International Zambia, SACCORD,

CITIZENS FORUM, Foundation for Democratic Process, Women for Change,

Civil Society for Trade Network, Jesuit Centre for Theological Reflection , Civil

Society for Poverty Reduction, Zambia Youth Association Against Corruption and

Caritas Zambia.

The third complaint charges Hon. Dora Siliya with corruptly receiving

K12,500,000.00 public funds. The particulars of this complaint are that early

August 2008 Hon. Dora Siliya informed Councilors at Petauke District Council

that funds for drilling two boreholes had been secured and that she wanted to assist

the peri-urban communities of Petauke. During the Presidential Election period in

61
October 2008, the Department of Water Affairs sent a rig to Petauke to drill the

two bore holes in question. The boreholes were drilled on the condition that

Petauke District Council would pay for the fuel, allowances for the rig crew and

departmental charges of K7,500,000.00 per bore hole. A week after the

Presidential Election in November 2008. Mr. Mboyi the Council Secretary was

allegedly given money by Hon. Dora Siliya for drilling the boreholes. Mr. Mboyi

paid K9,000,000 for the fuel, K4,520,000 allowances for the rig crew and

K15,000,000 departmental charges to the Department of Water Affairs. Mr.

Mboyi later sent a motor vehicles to Saro Agric Equipment (herein after referred

only as Saro) to purchase two pumps for the boreholes at K5,000,000.00. Ten

pockets of cement were also bought at K650,000.00. The total cost of the two bore

holes project was K34, 170, 000.00.

The particulars of the third complaint go on to allege that after the fore-

going transactions and when the Constituency Development Fund (herein after

referred to as CDF) was received, the Council Secretary surprisingly made

dubious payments to Hon. Dora Siliya as a refund for the payment for drilling the

two boreholes which payment was false. The Hon. Dora Siliya made a claim and

payment was made to her on the basis of the claim letter and payment vouchers

which were produced to the Tribunal and marked Exhibit P 22. The particulars

further alleged that Hon. Dora Siliya’s claim for K12,500,000.00 is fictitious

62
because late 2008 hand pumps at Saro were costing K2,500,000.00 each and now

are costing K3,000,000 each.

To support this complainant the complainants called four witnesses. The first

witness was Mr. Rueben Lupupa Lifuka who is the President of Transparent

International Zambia, which together with the nine other Civil Society

Organizations, presented a petition to the Chief Justice to appoint this Tribunal.

With respect to the complainant on refund of K12,500,000.00 from Petauke

District Council paid for boreholes in Nyika ward, Mr. Lifuka testified that while

Hon. Dora Siliya claimed a refund of K12,500,000.00, the boreholes were only

worth K5,000, 000.00. Further, Mr. Lifuka said Hon. Dora Siliya’s statement in

Parliament did not justify her action. The basis for the complainant on boreholes is

information from the public and the media.

When cross examined, he said the basis of the third Complaint is a

complainant from Petauke. He said if there is corruption his organization refers

the matter to the Anti Corruption Commission. He said the facts on the third

complaint amount to a breach of the Parliamentary and Ministerial Code of

Conduct Act. He did not speak to the Petauke District Council Secretary.

When re examined he said the major complaint is that Hon Dora Siliya

claimed more than she paid, the amount spent on the boreholes was K5,000,000.00

63
while Hon Dora Siliya claimed K12,000,000. The information they had was that

about November December 2008 hand pumps were costing K2,500,000.00 each.

The second witness on this third Complaint was Mr. Francis Kondwelani

Mwale who, was complainants’ witness number six. The third witness was Mr.

John Mwanza who was the complainants’ seventh witness and the fourth witness

was Mr. Osman Ahmed Moosa who was the complainants’ thirteenth witness.

According to Mr. Mwale who is coordinator for Advocacy and Legal Aid

Advice Centre at Transparent International Zambia, he dealt with the third

complaint which is about hand pumps. There were reports received through the

hot line. Upon request for more information one of the reporters, whom Mr.

Mwale referred as clients, travelled from Petauke to Lusaka with a letter of

complaint, a claim letter from Hon Dora Siliya and a payment voucher. The

allegation in the complaint was that on 10th January 2009 the Council Secretary at

Petauke District Council, Mr. Boyd Mboyi, RW2, in the Tribunal proceedings,

approached the Council Chairman, Mr. Osman Ahmed Moosa, CW 13 in the

Tribunal proceedings and told Mr. Moosa that Hon Dora Siliya had already

claimed a refund for the boreholes which had been sunk and told Mr. Moosa that

he too should claim for the borehole in Tasala 8. Mr. Moosa was surprised

because the borehole had been sunk by well wishers. On 11th January 2009 Mr.

Moosa got keys for all the Council offices and locked the offices on the ground

64
that there were wrong things going on at the Council. Mr. Moosa did what he did

in a bid to call for an audit. Mr. Moosa also reported the matter to the police. The

Council Offices remained closed until 23rd January 2009 when Mr. Moosa got

instructions from the Minister responsible for Local Government and Housing that

the offices be opened without delay the following day. Mr. Moosa opened the

offices.

Mr. Mwale took possession of Hon Dora Siliya’s claim letter and the

payment voucher on which she was paid K12,495,000.00 and produced them to the

Tribunal and are marked collectively (Ex P22). Mr. Mwale later, on 16th February

2009, got a quotation for the cost of hand pumps from Saro where it was said the

hand pump in question were procured in order to compare with the cost stated on

the payment voucher. Mr. Mwale found that while the payment voucher showed

that cost of a hand pump was K5,000,000.00 each, the price on the quotation was

K3,310,034.48 without value added tax. The proforma invoice from Saro was

produced and marked Ex P23. After this, the matter was reported to the Anti

Corruption Commission for investigation as per letter Exhibit P 24 because the

complaint received by Transparent International Zambia involved the potential

commission of corruption offences.

When cross examined, he said that Mr. Osman Moosa is the Councilor for

Nyika ward where the bore holes were sunk. He said he did not personally

65
confirm whether the boreholes were sunk and that he was relying on the people on

the ground. The borehole for which the Council Secretary wanted Mr. Osman

Moosa to be paid was at Tasala 8 and was fully paid for, by well wishers. The two

boreholes in question were at Tasala 2. He did not speak to Mr. Boyd Mboyi. Mr.

Moosa did not tell him of a compound known as show ground. He was not told

who drilled the boreholes at Tasala 2 and Show ground. He would not be surprised

if he was told that the two boreholes were drilled by Water Affairs Department

from Chipata. He was concerned because the amount of refund exceeded the cost

of the bore holes but he did not confirm the total cost of the two bore holes. He did

not confirm whether Petauke District Council had approved the sinking of the

boreholes. He knows that Petauke has three Constituencies, namely Petauke

Central, Musanzala and Kapoche, but he does not know whether each constituency

has its own CDF Account. Mr. Zulu told him that the CDF account was funded in

about October 2008. He queried the difference in prices of the hand pumps on the

quotation Exhibit P23 and the tax invoice Exhibit P27 and the answer was that

the quotation Exhibit P23 does not include VAT because agricultural equipments

are now zero rated. Saro told him that Hon Dora Siliya had not dealt with them.

He did not establish whether the cost of a borehole and the cost of a hand pump

are the same but he said there should be a difference. He referred to the Cabinet

Hand Book and Guidelines because Clause 8. 41 refers to conduct of Ministers.

66
He does not know whether Hon Dora Siliya was refunded less than the amount she

advanced the Council for the boreholes. In the third complaint it is said that there

was an underpayment of K5,000.00 but he did not find out why the council refused

to pay the Hon Dora Siliya the K5,000. He did not find out whether the refund

was being made against authenticated receipts. He is not aware of the stage of the

investigations by the Anti Corruption Commission. An enquiry was made to the

Anti Corruption but to date there is no response.

When re examined, he said he could not be surprised if he was told that the

bore holes were drilled by the Department of Water Affairs from Chipata because

anybody could have drilled the bore holes. The issue is one of the hand pumps.

Hon Dora Siliya made the application for refund on a Government headed paper

and signed the letter as Minister and Member of Parliament. He does not know

how much Hon Dora Siliya advanced to the Council.

The evidence of Mr. John Mwanza, who apart from being a small scale

farmer, is also a Councilor for Mabando ward in the Petauke District Council, is

that he has been Councilor for two years. He said Petauke District Council has

twenty six Councilors and Petauke District has three Members of Parliament, one

of whom is Hon Dora Siliya, for the Petauke Central Constituency. The three

Members of Parliament do not regularly attend council meeting. The Council

Secretary is Mr. Boyd Mboyi, Respondents witness number two. He said that the

67
elected Council Chairman is Mr. Osman Moosa but at the time the witness gave

evidence, Mr. Moosa was not Council Chairman because he was suspended for

not following Local Government Regulations when he closed Council Offices.

Mr. Francis Nkhoma is the Acting Council Chairman. Mr. Moosa locked up

Council Offices on suspicion of abuse of funds involving the Council Treasurer

Mr. Makota Zulu, Deputy Council Secretary Ms Josephine Mwanza Phiri,

Valentine Mushipi and Dulani Phiri.

He deposed that he is the Chairman of the Planning Works and Development

Committee. By virtue of his being Chairman of Planning, Works and

Development Committee, he is also a member of the Finance and General

Purposes Committee. The responsibility of the Planning Works and Development

Committee (PWDC) is to receive development reports through the office of the

District Planning Officer, from the Water Department and the Health Department.

The function of the Finance and General Purpose Committee is to consider and

approve financial reports.

He further deposed that he knows Constituency Development Fund (CDF).

CDF helps in development projects at ward level in a Constituency. CDF comes

from the Ministry of Local Government and the Housing. The Community at ward

level qualifies to get CDF funds. To access CDF the Community has to apply to

68
the Council which is the Secretariat for CDF. The Council then sends the

application to the Constituency Development Committee (CDC)

On 26th February 2009 he bought and read the Daily Mail and Times of

Zambia Newspapers published on that day. In the Daily Mail there was an article

“Petauke Council defends Siliya” and in the Times of Zambia there was an

article “ Petauke Council clears Siliya.” The two news papers were produced in

evidence and marked collectively Exhibit P 28. Subsequent to this there was a

Council Meeting called to consider a report by the Council Secretary. The

Council formed a quorum. The Council Secretary’s report was not circulated in

advance but was distributed during the meeting. Also distributed in the meeting

was a letter from the Hon Dora Siliya and a payment voucher (Exhibit P22). The

purpose of the meeting was to brief the Councilors on the allegations in the press

against Hon Dora Siliya with respect to the purchase of hand pumps. The Council

Secretary told the meeting that the allegation against Hon Dora Siliya were not

true and that when the matter goes to the Tribunal the Council should not use their

lawyers Messrs Shamwama and Company but should use the same lawyers that

Hon Dora Siliya had already retained. He and three other Councilors commented

on what the Council Secretary said. He himself said it was sad the issue had come

at that time and all along the issue was not heard of. He said if the matter was

69
going before a Tribunal, then transparency should prevail. He then warned his

fellow Councilors that they should be careful about this matter.

Before the Council meeting which he did not attend, Mr. Moosa had called a

consultative meeting. However his deputy attended the Council meeting. The

consultative meeting was attended by the officer in charge police and an officer

from the Office of the President Special Division, and the MMD District

Chairman. The meeting was about abuse of public funds and to seek guidance on

the way forward. It was after this consultative meeting that the Council offices

were closed. After the consultative meeting the Chairman also called all the

Councilors for briefing on the allegations against Hon Dora Siliya regarding the

two hand pumps. The irregularity about the two hand pumps is that the Council

did not approve their purchase. The claim by Hon Dora Siliya and the payment

voucher (Exhibit P22) never went before the Finance and General Purposes

Committee which he chairs. He first saw these documents on 24th February 2009

when the Council had a special meeting. At the special Council meeting there was

no report presented by the Finance Scrutiny Committee which Scrutinizes payment

vouchers.

The report by the Council Secretary to the Special Council meeting was

verbal and the Council Secretary said no one should reveal what he had said and

warned that anyone who would reveal what he said would go in the same way Mr.

70
Moosa went. Later he said Mr. Mboyi’s report to the Council meeting was just a

page. After the meeting the report was withdrawn from the councilors on the

ground that it was confidential at that time. The article in the Times of Zambia

does not reflect what went on in Council meeting but the article in the Daily Mail

reflects what happened. After the special Council meeting of the 24th February

2009 there has been no other meeting confirming the minutes of the meeting of

24th February 2009.

Further on the function of PWDC, he testified that the PWDC recommends

projects to the full Council for adoption. The project to sink boreholes had to be

considered by the PWDC if CDF were to be used. He did not attend a meeting of

PWDC at which the sinking of boreholes in Nyika ward was considered. He said

the application to access CDF starts with the elected Project Management

Committee. Minutes of this Committee are attached to the application form which

is taken to the area councilor who signs the form and takes it to the Area

Development Committee Chairman who also signs the form. After that the Project

Management Committee will source three profoma invoices which will be attached

to the application form. Thereafter the application form is submitted to the

Constituency Development Committee through the District Development Officer.

The Constituency Development Committee will then convene a meeting to

consider and approve the application. The approved project then passes through

71
the District Development and Coordinating Committee which advices the PWDC

on the suitability of funding the project. After that PWDC recommends adoption

of the project to the full Council.

The Council has to pass a resolution to borrow money from an individual.

He does not recall attending a council meeting at which it was resolved to borrow

K12,500,000.00 from Hon Dora Siliya. He has never heard of any such meeting

having been convened in his absence. CDF are normally received in October but

he cannot confirm whether CDF were received in October 2008. The CDC has not

approved any project between October 2008 and January 2009.

On the proceedings of the special council meeting of 24th February 2009 he

deposed that the procedure followed was wrong. There was no proposer and

seconder and no resolution was passed.

When cross examined he testified that it was established that money had

been misused and Makota Zulu, Josephine M. Phiri, Valentine Mushipi and Dulani

Phiri were suspended for abuse of Council funds. However, Mr. Moosa did not

show the Councilors any documents. At the meeting of 24th February 2009 there

were resolutions passed that the council should say that what was alleged did not

happen and that the council should use Hon Dora Siliya’s lawyers and not the

Council lawyers, Messrs Shamwana and Company. He did not attend the meeting

which suspended Mr. Moosa. Between August 2008 and mid November 2008,

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there was water crisis in Petauke Central Constituency because the high lift pump

had broken down. He deposed that he knew because the water engineer informed

his Committee. As a result his Committee brought the issue to the Council and the

full Council made a resolution to purchase another pump. He does not know

whether the resolution was implemented. He said funds were made available by

the Finance Committee but he was not aware that to date the high lift pump had not

been replaced. When the high lift pump broke down many people had no access

to water. People were going to Tasala to draw water. He was not aware that the

borehole in show grounds was servicing 1000 people. He is not aware that in May

2008 there was already a proposal in place to put boreholes under the CDF. What

he was aware of are projects other than boreholes. He has no evidence that Hon

Dora Siliya wrongly or fraudulently obtained the money; he only knows this from

the claim letter and the payment voucher. As Chairman of PWDC he did not care

to check whether the two boreholes were sunk. He is not aware whether the

Petauke District Council used its own money to drill and equip the boreholes.

When re examined, he said the irregularity with the claim is that it was made

from the CDF without the project passing through the council.

Mr. Osman Ahmed Moosa, the suspended chairman of the Petauke District

Council, testified that he has been councilor for Nyika ward since 2006 and was

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elected Council Chairman on 10th August 2008. He is an ex officio member of all

the Council Standing Committees.

On 10th January 2009 the Council Secretary Mr. Boyd Mboyi (RW2) went to

his house and informed him that he Mr. Boyd Mboyi was going to the Copperbelt

to pursue his study project with Kitwe City Council. Mr. Mboyi then told him of

the mismanagement of Council funds by the Deputy Council Secretary Ms

Josephine Mwanza Phiri, the Internal Auditor Mr. Valentine Mushipi and the

District Planning Officer Mr. Dulani Phiri. Mr. Mboyi said the money misused

was specific grant of K48,000,000.00 from the Ministry of Local Government and

Housing provided for the repair of the fire tender engine which had broken. After

informing him of the misuse of funds, Mr. Mboyi then asked him whether he could

be refunded for the boreholes drilled by well wishers in Tasala 8 in Nyika ward.

He asked Mr. Mboyi how that was possible because he did not have receipts and

the bore hole was drilled by the Department of Water Affairs and a company called

Ibrahim Bargain Centre paid K20,000,000.00 for drilling and equipping the

borehole. Thereupon Mr. Mboyi advised him to get fake fuel receipts from the

Petrol Station and write a claim. He told Mr. Mboyi that the receipts were with

Ibrahim Bargain Centre. Mr. Mboyi then told him that in fact Hon Dora Siliya had

so far, already been refunded K12,400,000.00 for the two bore holes sunk in Tasala

2 and Show grounds. But Mr. Mboyi did not say who sunk the two boreholes.

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However, later he learned from the Area Development Committee Chairman Mr.

Paul Ngoma that the two boreholes had been drilled by the Department of Water

Affairs through Hon Dora Siliya charging the CDF account.

After Mr. Mboyi had left, he thought over the issue brought to his attention.

The following day, which was a Sunday, he called and briefed the police officer in

charge, the District Commissioner and the MMD District Chairman on what Mr.

Mboyi to had told him. He was unable to reach the Office of the President (Special

Division). At this briefing it was decided that the Council Offices be closed and he

as Council Chairman closed the main gate. After the briefing he phoned the

Minister of Local Government and Housing and told him of the event. The

Minister advised him to talk to the Director of Local Government and gave him the

name of Zelesi Zulu. He spoke to Zelesi Zulu who said she was attending a

meeting and that she would ring back at night but she did not. The following day

which was a Monday, he opened the main gate and allowed Council workers in the

chamber for a briefing and he collected the keys to accounts section offices. At

08:00 hours he rang Zelesi Zulu who adviced him to get in touch with the

Provincial Local Government Officer which he did. The Provincial Local

Government Officer advised him to call the chairmen of the Standing Committees

of the Council for a Consultative meeting. He called for the Consultative Meeting.

The agenda was briefing on the allegations of mismanagement of Council funds.

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The consultative meeting recommended that a Special Council meeting be called.

It required two thirds of the Councilors to call for a special Council meeting. On

13th January 2009 there were signatures from more than two thirds of the

councilors and the special Council meeting was called for 24th January 2009. On

21st January 2009 the Minister for Local Government and Housing Hon

Tetamashimba sent him a fax directing that the council offices be opened. He did

not open the offices. In the evening the Hon Minister rang to find out why he had

not opened the offices. He told the Honorable Minister that he feared the financial

records may be tempered with in view of the allegations. The Minister told him

not to worry about the files because they did not belong to him but to the Minister.

The Minister also told him that at the special Council meeting he would be

removed. Thereupon, he surrendered the office keys to the Council Secretary. On

22nd January 2009. On 24th January 2009 he presented the report with the vouchers

on the abuse of council funds. However, when he called for a resolution to ask for

a special council audit the councilors proposed that he leaves the council

Chambers because they wanted to discuss him. The matter was put to vote and the

councilors voted in favour of excluding him from the council chambers. There

was an observation that those who attended the consultative meeting may not have

followed the Local Government procedures relating to handling of staff. The

special Council meeting suspended him for six months.

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Specifically talking about the bore holes he testified that he has seen the bore

holes at Tasala 2 and show grounds which are in his ward, Nyika. He did not

enquire as to who paid for the bore holes but according to the information he got

from the Area Development Committee Chairman the CDF was charged by Hon

Dora Siliya. He remembered that on 28th August 2008, Hon Minister Dora Siliya

at a budget workshop for councilors said that she had sourced money for drilling

two bore holes without disclosing the source. The area in contemplation at the

time was the peri urban of Petauke District. Hon Dora Siliya did not say that the

money she had sourced was an advance.

He then explained how CDF is administered. A project is identified by the

Community and an application is made to the Area Development Committee.

After scrutiny, the area Development Committee presents the application to the

area councilor for signature and after which the application is presented to the

District Planning Officer for consideration. After the District Planning Officer the

application is sent to the Constituency Development Fund Committee for

recommendation and after recommendation, it is sent to the Plans Works

Development Committee for approval by the council.

In this case if the two bore holes were sunk from CDF he was supposed to

sign the application form. He did not sign the application form for sinking the

boreholes at Tasala 2 and show grounds and he was not aware of these two

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projects. Because he did not sign the application form the two projects were not

funded by CDF. He did not attend any council meeting at which the council

approved the sinking of boreholes at Tasala 2 and show grounds. Nor did he

attend any council meeting at which the council resolved to borrow money from

Hon Dora Siliya to sink boreholes at Tasala 2 and show grounds. He first saw the

letter of claim by Hon Dora Siliya and the payment voucher (Exhibit P22) at the

Tribunal. Mr. Mboyi did not personally approach him on borrowing money from

Hon Dora Siliya. According to the payment voucher the money was paid from

CDF. The boreholes in Tasala 2 and show grounds were sunk in November 2008.

As council chairman, he did not see all payments by the Council because these

were purely management issues.

When cross examined he said it was wrong for Mr. Mboyi to suggest that he

claims for a refund but he does not know whether Mr. Mboyi was suggesting to

him to commit an offence. Mr. Mboyi was suggesting that he does a wrong thing.

In the consultative meeting he did not brief the other members about Mr. Mboyi’s

improper suggestion to him. He thought that the matter could wait until the special

Council meeting. As council Chairman he did not know how many bank accounts

the council maintained but he knew the council’s bankers as ZANACO and

NATSAVE. The boreholes at Tasala 2 and show grounds were without his

involvement. He was not aware of the siting of the Tasala 2 borehole. He was

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only aware of the siting of the show grounds borehole. He did not approach the

Council to finance the drilling of any borehole in his ward. He only approached

Ibrahim Bargain Centre for donation for a bore hole to be sunk at Tasala 8. He

assumed that Hon Dora Siliya sponsored the boreholes at Tasala 2 and show

grounds. He based this assumption on what Hon Dora Siliya said at the budget

workshop.

He said Petauke Central Constituency has a Parliamentary office manned by

a professional staff paid by the national Assembly. Mr. Patrick Nyirenda is

currently running the Parliamentary office. He did not interact with Mr. Nyirenda

on developmental projects in the Nyika ward. As councilor of Nyika ward he has

never worked with the Parliamentary office with regard to development projects.

He has direct dealings with the Member of Parliament. To his knowledge Hon

Dora Siliya has not in her capacity as Member of Parliament undertaken any

developmental project in Nyika ward. Nor is he aware of any development project

taken by Hon Dora Siliya as a Member of Parliament in her to Constituency. In

2008 the Constituency Development Committee approved a project in Nyika ward

for Chamwala Community School. He signed the application form for the project.

However, he said the earlier application forms for a project had no provision for

the councilor to sign. He said the area Member of Parliament is a member of

CDC. He cannot remember whether he signed the project approval form for

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Chamwala Community School. He had no role in sourcing of the building

materials. When the walls of Chamwala Community School were collapsing he

wrote a letter to the Council Secretary to release K11,000,000 and they got

building materials on credit from Ibrahim Bargain Centre. They got the material

from Ibrahim Bargain Centre because the matter was urgent. Ibrahim Bargain

Centre was subsequently paid and the council ratified. Mr. Mboyi did not tell him

that Hon Dora Siliya had advanced money to the council.

He recalled the breakdown of the high lift pump but he cannot recall whether

they had a discussion with the council secretary to discuss measures to be taken to

alleviate the water situation. When the lift pump broke down there was no water

supply and about 200 people were affected. As council Chairman, it was his duty

to find the solution.

The solution was to procure another lift pump and they procured one, within

the same month of August or early September 2008. It was not urgent to drill

boreholes at Tasala 2 and show grounds. It was necessary to put a bore hole at

Tasala 8 because there was demand from Tasala 8 community but there was no

demand from Tasala 2 and show grounds. Mr. Mboyi never complained to him

that Hon Dora Siliya had misappropriated K12,000,000 plus. When the lift pump

broke down the council had no funds to sink boreholes in the affected areas.

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When re examined he said he did not lodge a complaint with the police

because there is a procedure. That is why they had a Council meeting to call for an

audit. He felt bad and underrated by the Council Secretary when the latter told him

to claim a refund. He took it the Council Secretary thought he was desperate for

money. He did not table Mr. Mboyi’s offer for a refund because his advisors told

him it was premature to do so. He had to wait for a Council Meeting for him to

table the issue of the suggested refund. Management of funds must be discussed in

a full council meeting. Lastly he said there was an incident where the Council

approved a fertilizer project for Tilitonse Women’s Club but the Councilor got the

fertilizer in the name of Kangomwa and took it to Kangomwa instead of the

Womens’ Club.

The evidence in defence on the allegations about hand pumps came from

Hon Dora Siliya herself and Mr. Boyd Mboyi, the Petauke Council Secretary.

In her evidence Hon Dora Siliya confirmed that she had requested for a

refund of K12,500,000.00 from the Petauke District Council. She confirmed

writing the claim letter (part of Exhibit P22) but said she did not see the payment

voucher (also part of Exhibit P22) until when she came to the Tribunal. She

confirmed receiving the amount she claimed from the Council. She testified that

she made an advance to the Council in two parts. This was as a result of a demand

from the people in Nyika ward in October 2008.

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The Council had plans to sink boreholes in the whole Constituency over a

period of five years and a number of sites were identified, and some of which were

in Nyika ward. There was an ongoing plan. However during a visit to Petauke in

August 2008 she learned that the two high lift pumps for piped water in Petauke

had broken down. She spoke with the Council Secretary who said he could speak

to the Minister of Local Government and Housing to source funding. When she

went back to Petauke in September 2008 she found that the high lift pumps were

still not working. She was told and she saw for herself that the situation was

causing a lot of problems for the people. Only 37% of the people in Petauke get

piped water directly into their houses while the rest get water from the taps and

boreholes. The breakdown of the high lift pump meant that even the piped water

was not available. As a result she discussed with the Council and constituency

officials especially the Chairman Mr. Mbewe that they needed to use CDF to sink

boreholes immediately. She was told that CDF had ran out and that they were

expecting the next allocation. After that she left for Lusaka.

She went back to Petauke in mid October 2008 during the Presidential

elections. On the last day of the campaign on her way to the last meeting at the

show ground in Nyika ward she was stopped by hundreds of women and children

beside the only borehole in the area at the time. The women lamented for over an

hour about their hardship over water; that they got to the borehole as early as

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01:00 hours; that the situation was affecting marriages and that it was encouraging

immorality among young people who were always at the borehole. It was a very

sad sight with some women almost in tears. At the meeting she addressed, the

water issue was raised. After the meeting she called the Council Secretary Mr.

Mboyi in the evening and inquired about the CDF and Mr. Mboyi told her that the

CDF had not yet been received. She felt frantic about her experience and in the

afternoon she said something needed to be done about the situation. Two days

later, in the company of Mr. Paul Ngoma, the Chairman of the Area Development

Committee show grounds, she went to see Mr. Mboyi at his office. They discussed

with Mr. Mboyi about what could be done immediately to alleviate the situation.

She was aware that at that time the Water Affairs rig from Chipata was in the

district and she asked Mr. Mboyi what was needed to jump start the process and

have the boreholes drilled. Mr. Mboyi confirmed that the rig was still in the

district and that the Council Chairman Mr. Moosa and him had a discussion with

the Water Affairs people from Chipata and they had agreed that if a down payment

was made to cover fuel allowance they could begin the work and be paid the

balance later. Mr.Mboyi then told her that the water affairs people said if they

were paid K12,500,000.00 they would start the work immediately. Thereupon, she

told Mr. Mboyi that she had only K7000,000.00; that she would only advance

K6,000,000.00; that she needed the other K1000,000.00 to return to Lusaka that

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day and that she would provide the balance when she returned to Lusaka. She

gave Mr. Mboyi K6,000,000.00 and Mr. Mboyi acknowledged receipt of the

K6,000,000.00. On Ex P 52 dated 1st November 2008. On 8th November 2008.

She met Mr. Mboyi at the bank at Manda Hill in Lusaka and she gave Mr. Mboyi

the K6,500,000.00 balance. Mr. Mboyi issued her with the paper marked exhibit

P53 acknowledging receipt of the K6,500,000.00. The two receipts add up to

K12,500,000.000.

She was not personally involved in the drilling of the boreholes. Mr. Mboyi

the Council Secretary was responsible for the drilling of the borehole. In her

claim for refund (Exhibit P22). She claimed k12,500,000.00 but she was refunded

K12,495,000 as per payment voucher Exhibit P22 . Finally there was an exchange

of letters between her and the Hon Minister of Local Government and Housing,

Hon B. Tetamashimba after the Minister of Local Government and Housing had

released K400,000,000.00 to the CDF account for Petauke Central constituency.

Letter are Exhibits P55 and P56.

When cross examined she said for a council to undertake a project there

must be a council resolution. She lent Petauke District Council K12,500,000.00 as

per documents Exhibits P52 and P53 signed by Mr. Mboyi and herself. Exhibits

P52 and P53 do not say that the money was advanced. Mr. Mboyi wrote exhibits

P52 and P53 on her request that she needed proof that she had given money to Mr.

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Mboyi because she needed to get back the money. She advanced the money in all

her capacities as a leader. She did not go to ask for an official receipt for the

K6,000,000.00 because she did not think that it was necessary and the money was

given when she was in a hurry to get back to Lusaka for the Presidential

inauguration. With respect to the K6,500,000.00 she was also in a hurry. She met

Mr. Mboyi as she was coming out of the bank. In her letter of claim she included

CDF Committee because the Council administers CDF . She said the payment

voucher Exhibit P22 was prepared by Mr. Mwale, then signed by the internal

auditor, head of department and the Council Secretary. The sourcing of money she

had talked about on 25th October 2008 was in relation to the letter she had written

to ZCCM-IH for assistance to sink boreholes. She involved Mr. Moosa in the

sinking of the two boreholes. The sites of the boreholes were approved by the

council of which Mr. Moosa was the Chairman. The sinking of the boreholes was

approved by the Constituency Development Committee.

According to Mr. Mboyi, who was the Respondents second witness, he is the

Council Secretary for Petauke District Council. His duties include general

administration and management of the Council. He is in charge of the day to day

running of the Council. He reports to the council.

On the allegation relating to K12,500,000.00 Mr. Mboyi testified that Hon

Dora Siliya did not wrongly claim the refund of k12,500,000.00.

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He said about October 2008 the two high lift pumps at the main water plant

which supplies piped water broke down creating a water crisis in Nyika ward.

There was a water shortage. He notified Hon Dora Siliya who is the area Member

of Parliament so that she could have some discussion with the Minister of Local

Government and Housing over sourcing of funds to purchase new high lift pumps.

On 29th October 2008 Hon Dora Siliya was in Petauke and rang him saying as a

council they had failed in the provision of water services. Hon Dora Siliya then

said she would meet him on 1st November 2008. On 1st November 2008 they met

in his office. Present at his meeting were Hon Dora Siliya, the water engineer Mr.

Solomon Mbewe, and the area development Committee Chairman Mr. Paul

Ngoma. In the meeting Hon Dora Siliya was particular about the water crisis in

Nyika ward especially Tasala 2 and show grounds. Hon Dora Siliya wanted to

hear what the council would do to alleviate the situation. He told Hon Dora Siliya

that the council had no money and that the Council had not yet received the CDF.

He also told Hon Dora Siliya that the drilling crew of the water affairs from

Chipata were in the district and suggested that they take advantage of their

presence and find some money to pay their allowances and fuel for drilling the

boreholes. Hon Dora Siliya then asked him how much it would cost to have the

boreholes drilled. Thereupon he consulted with the water engineer who said the

cost would be K12,500,000.00. Hon Dora Siliya then said he could advance the

86
council K12,500,000.00 on condition she was paid back when the CDF for 2008

was received. He agreed because there was a problem of water shortage. Hon

Dora Siliya said she could only advance K6,000,000.00 at that time. After the

meeting they went to see the sites of the boreholes. After seeing the borehole

sites they went to the filling station where Hon Dora Siliya gave him

K6,000,000.00. Hon Dora Siliya was rushing to Lusaka. He acknowledge receipt

of the K6,000,000,00 on the document Exhibit P52.

After receiving the K,6,000,000.00 he consulted with his treasurer Mr

Makota Zulu on how best they could administer the funds in form of receipting.

Mr. Makota Zulu advised that it was better to spend the money as intended and

after getting the goods and when Hon Dora Siliya claimed they would refund her.

On 6th November 2008 he paid the drilling crew their allowances for drilling the

boreholes. He paid K2,260,000.00 for Tasala 2 and also k2,260,000 for show

grounds, bringing the total to K4,520,000.00 as per acquittal sheet exhibit P63. He

remained with a balance out of K6,000,000.00. On 8th November 2008 he was in

Lusaka and he called Hon Dora Siliya reminding her of the balance she had

promised. She told him to meet her at Manda Hill. They met at Manda Hill and

Hon Dora Siliya gave him the K6, 500, 000, 00, the receipt of which he

acknowledged on exhibit P53 .

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The day on which he collected the K6, 500,000.00 was a Saturday and he

could not buy the pumps. He went back to Petauke. On 14th November 2008 he

travelled to Lusaka using his official vehicle. The council had no money to pay for

the fuel for the trip. He, therefore, used part of the money K470,000.00 to buy fuel

for the trip as per exhibit P64. On 15th November he went to Saro and purchased

two hand pumps for Petauke District Council for K5,964,000.00 as per exhibit

P27. After paying for the hand pump the council hand man one Amon Mumba

signed for the hand pump as per Exhibit P65 and they collected the hand pumps.

The council hand man travelled in a motor vehicle GRZ 999 CA driven by a driver

Mr. Wilson Mwanza. The fuel for the GRZ 999 CA round trip from Petauke to

Lusaka and back was paid for from the money advanced by Hon Dora Siliya as per

Exhibits P66. Mr. Mwanza and Mr. Mumba were paid their allowances from the

same money advanced by Hon Dora Siliya as per exhibit P67. The total

expenditure was 12,495,000.00. There was K5000.00 uncounted for. The bore

holes were sunk and the pumps were installed.

Around 20th November 2008 he received communication from the Minister

of Local government and Housing that CDF had been released to the Petauke

District account. The amount involved was K1.2 billion. Each constituency was

due K400,000,000. On 28th November he received a fax from Hon Dora Siliya

(Exhibit P22) claiming refund of her K12,500,000.00. He sent the fax to his

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Acting Director Planning Officer, Mr. Dulani Phiri to originate the refund. He

endorsed the instruction on Exhibit P22. Mr. Phiri processed the payment. In

consultation with the District Treasurer the payment voucher was processed; after

that the payment voucher was taken to the Internal Auditor, head of department

and finally to him for authorization. On 17th December 2008 a cheque was made

in the name of Hon Dora Siliya. He collected the cheque and deposited it in Hon

Dora Siliya’s bank account at Petauke. The payment was made from Petauke CDF

account. The cheque was cleared.

After paying the refund all was quiet until when he read in the media about

19th or 20th February 2009 that the Honourable Minister Dora Siliya had defrauded

the Council. After reading the story the Acting Council Chairman Mr. Francis

Nkhoma also showed concern. Thereupon, a Council meeting was called on 24th

February 2009 so that the council could state its position on the allegation.

Although all the Councilors did not attend the meeting a quorum was formed.

Those absent were the Honorable Ministers Dora Siliya and Peter Daka, Hon

Fashion Phiri and Councilor Moosa. At this meeting he presented a report

together with the related documents on the 12,500,000.00 allegation. After

deliberation the council made four resolutions in relation to the K12,500,000.00

viz:-

1. The Council welcomes the move by the President to appoint a Tribunal

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2. The Council should refute the allegation that the Honourable Minister

Dora Siliya defrauded the Council.

3. The payment of K12,500,000.00 to the Honourable Minister Dora Siliya be

ratified.

4. Messrs AKM Legal Practitioners be appointed to represent the council in

this matter.

These resolutions were not put to vote because the decisions were unanimous. He

took minutes of the Council meeting but the minutes have not been adopted yet

because there has been no subsequent Council meeting at which the minutes could

have been adopted. According to the minutes five councilors were absent. The

minutes are Exhibit P65.

The Council has a five year strategic plan from 2005 to 2010. In the event

of the council wanting to sink a bore hole from CDF, the Community has to

approach the District Planning Officer. There is already a five year strategic plan

with respect to boreholes and the borehole sites are already identified. The Area

Development Committee approaches the District Planning Officer to have a bore

hole drilled at a designated site if funds are available. The council has funds from

many sources. When the request is presented to him the District Planning officer

will consult with the Council Secretary (the witness) to see if funds are available.

The strategic plan was approved and adopted by the council. The procedure of

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going through Communities is not applicable to bore holes because they are

already covered in the five year strategic plan which was approved by the full

Council. The strategic plan is exhibit P68. The budget for boreholes from 2006 to

2010 is shown at item 9 and stands at K12, 441,600,000.00. The Council has not

been able to raise the money for boreholes. The sources of revenue are tabulated

on page 25 of Exhibit P69 and CDF falls under Government ground. The Council

can utilize funds on projects like bore holes. He is familiar with the CDF

guidelines given in Exhibit P25. CDF is included in capital expenditure of the

council. When drilling bore holes in Tasala 2 and the show grounds the CDF

guidelines were followed.

He did not get prior authority from the council to borrow money from Hon.

Dora Siliya because there was water crisis and there was no money to convene a

Council meeting. He needed K6,000,000 to K8,000,000.00 for Councilors

allowances for him to convene a Council meeting.

Cross examined he said he accounts for Council money by receipting it for

accountability purposes and to show that the Council received the money. He said

as a Council Secretary he has a discretion not to receipt some money but later he

said there are no circumstances under which he can decide not to issue a receipt.

He is aware of a Statutory Instrument which stipulates the duties and

responsibilities of a Council Secretary. One of the responsibilities is to lend or

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borrow money on behalf of the council. He said under the Statutory Instrument he

has power as Council Secretary he can act as a Council and later present his action

to the Council for ratification. This happens in emergency circumstances. The

borrowing of the k12,500,000.00 was one such circumstance. The K12,500,000.00

did not get into the books of account of the Council. The bore holes were sunk and

equipped for use and the water crisis was partially resolved. His report to the

council is Exhibit P70 and in it he made a recommendation that the council should

state its position on the matter which appeared in the press. There are no internal

documents from the Council to show that Hon. Dora Siliya lent K12,500,000.00 to

the council.

He said the report was extremely confidential because the matter was

coming before the Tribunal and having experienced a situation where Council

documents ended up in the wrong hands, he stated that the report was confidential.

He was aware that the documents were already with the Tribunal. The reason for

making the report confidential was not because the Councilors’ were seeing the

documents for the first time. The Scrutiny Committee and some of the Councilors

had already seen the documents. The K12,500,000.00 was meant for the Council

and it was given to him by Hon Minister Dora Siliya to do work in her

Constituency. The strategic plan was approved by the Council and does not

require approval by the Minister of Local Government and Housing. The payment

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of K12,495,000.00 on Exhibit P22 was a refund to Hon Dora Siliya. The narration

that the payment was for hand pumps was a clerical error.

The sum and substance of the submissions on allegation number three is that

the evidence showed that there was no Council resolution which authorized Mr.

Mboyi, the Council Secretary, to borrow money from Hon Dora Siliya; that the

transaction was not witnessed by any council official or supported by official

Council document; that the money in question was not credited to any Council

account; that no report was made to the Council about the transaction between Hon

Dora Siliya and Mr. Mboyi the Council Secretary; that the documents Exhibits

P52 and P53 on which Mr. Mboyi acknowledge receipt of the money from Hon

Dora Sillya do not show that Hon Dora Siliya was lending the money to Council

and that a refund was due later; that there was no reason why the Council

Treasurer was not called to testify to confirm the testimony of the Council

Secretary Mr. Mboyi about the money and that Hon Dora Siliya was refunded the

sum of K12,495,000.

Mr. Mutale SC, Mr. Kabimba and Mr. Mubanga learned Counsel for the first

complainant then referred to Section 35 (2) (b) (iii) of the Local Government Act

which provides that a council shall not delegate to any Committee the power to

borrow money. And with respect to Hon Dora Siliya’s reliance on Section 51 of

the Local Government Act which provides that a person lending money to a

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Council shall not be bound to enquire whether the borrowing of money is or was

legal or regular……., Counsel submitted that Hon Dora Siliya was not just “a

person lending money to a council” under the circumstances. They pointed out

that Hon Dora Siliya is a leader, a Member of Parliament for Petauke Central

Constituency by virtue of which she is ex officio councilor of Petauke District

Council and, therefore, has primary duty to ensure and promote transparency in

such matters as this. Further, Counsel submitted that Hon Dora Siliya is expected

or deemed to know the procedure for lending money to the council which she has

served since 2006. Counsel emphasized that there is no evidence to show that the

K12, 495,000.00 which the council paid Hon. Dora Siliya as refund was ever

advanced to the Council.

For these reasons Counsel submitted that Hon Dora Siliya breached Section

4 (a) of the Parliamentary and Ministerial Code of Conduct Act which prohibits a

member from knowingly acquiring any significant pecuniary advantages or assist

in the acquisition of pecuniary advantage by another person by, inter alia,

(a) Directly or indirectly converting government property for personal or any

other unauthorized use.

For these reason Counsel prayed that the Tribunal finds

accordingly and make recommendation in accordance with Article

71 (2) (b) of the Constitution of Zambia which provides for vacation

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by a Member of the National Assembly of his seat if he acts contrary

to the Code of Conduct prescribed by an Act of Parliament.

Mr. Mwitwa learned Counsel for the second complainant also made

submissions the gist of which is that the evidence reveals that Hon Dora Siliya in

her capacity as Minister of Communications and Transport and Member of

Parliament wrote to the Council Secretary for Petauke District Council claiming

the sum of K12,500,000.00 which according to her was advanced to the Council

/CDF Committee to sink two bore holes in Nyika ward. Mr. Mwitwa pointed out

that the evidence is that the K12,500,000.00 was given to Mr. Mboyi, the Council

Secretary on two separate occasions and the receipt acknowledged by Mr. Mboyi

on the documents Exhibits P52 and P53. It was Mr. Mwitwa’s observation that

although the money was given to Mr. Mboyi, the documents signed by Mr. Mboyi

do not show that the money was an advance or a loan to the Council. He said Mr.

Mboyi was at pains to explain why an official council receipt was not issued to

Hon Dora Siliya. Mr. Mwitwa further pointed out that Mr. Mboyi conceded in

cross examination that the K12,500,000.00 has to date never been entered into the

Council books of account or deposited in the Council bank account. Furthermore,

Mr. Mwitwa pointed out that the Council did not pass any resolution to borrow the

K12,500,000.00 from Hon Dora Siliya.

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It was Mr. Mwitwa’s submission that going by the narration on the payment

voucher Hon Dora Siliya was paid K12, 495,000.00 as refund for hand pumps for

two boreholes at Tasala 2 and that the payment voucher does not make any

reference to the expenses made by Mr. Mboyi from the money he received from

Hon Dora Siliya. He submitted that although Mr. Mboyi said the narration on the

payment voucher had errors, he never explained why he did not correct the errors.

Mr. Mwitwa pointed out that Mr. John Mwanza and Mr. Osman Moosa both

Councilors were not aware of Hon Dora Siliya ever advancing K12,500,000.00 to

the Council and how the Council refunded the money. Mr. Mwitwa then recounted

the evidence of Mr. John Mwanza as to the channel for project funded from CDF.

It is not necessary to reproduce the evidence because it is already in our summary

of the evidence. It is also not necessary for us to reproduce the evidence of what

happened at the Special Council Meeting and the discussion between Mr. Mboyi

and Mr. Moosa whereby Mr. Mboyi asked Mr. Moosa to claim for a refund for a

bore hole at Tasala 8. On the issue of not following the CDF guidelines on

boreholes because they have already been dealt with in the strategic plan, Mr.

Mwitwa submitted that Mr. Mboyi did not however confirm whether CDF

guidelines recognize the strategic plan or whether the strategic plan supersedes the

CDF guidelines. He submitted that a perusal of guidelines clearly shows that the

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guidelines do not provide that council can neglect the guidelines when it adopts a

strategic plan.

Mr. Mwitwa then observed that on the oral and documentary evidence the

question for determination is whether the K12,500,000.00 that Hon Dora Siliya

gave to Mr. Mboyi was indeed given as an advance or a loan to the Council.

It was Mr. Mwitwa’s submission that the evidence raises serious questions

and doubt that the money was indeed an advance or a loan to the council. He said

the K12,500,000.00 was never receipted and to date Hon Dora Siliya has never

bothered to request for an official receipt from the Council; that when Mr. Mboyi

received the money he never deposited it into the Council account but kept it in the

safe and never entered it into the Council books, that Mr. Mboyi first presented the

advance of K12,500,000.00 to the Council at the Special Council meeting after the

matter had come out in the media. Mr. Mwitwa wondered whether Mr. Mboyi

would have convened a meeting to request ratification of his borrowing of

K12,500,000.00 had the matter not appeared in the media. Citing section 35 (1)

(2) (ii) of the Local Government Act which has already been referred to by other

Counsel, Mr. Mwitwa submitted that Mr. Mboyi as Council Secretary had no

authority to borrow money on behalf of the Council and that Hon Dora Siliya as a

Member of Parliament and Councilor for Petauke District Council knew or ought

to have known that the Council Secretary had no power to borrow the money from

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her on behalf of the council. It was Mr. Mwitwa’s submission that Mr. Mboyi

never issued a receipts for the K12,500,000.00 and Hon Dora Siliya did not bother

to ask for an official receipt because both of them knew that the K12,500,000 was

not intended to be an advance to the Council. According to Mr. Mwitwa Hon Dora

Siliya gave the money to Mr. Mboyi to be used in her own constituency without

the intention of claiming it back. Further Mr. Mwitwa submitted that the other

reason why Hon Dora Siliya did not ask for a receipt is simply that she did not give

the money to Mr. Mboyi. Hence, nobody witnessed the signing of the documents

exhibits P52 and P53. Mr. Mwitwa then referred to the evidence on the allegations

regarding RP Capitals which we think is not relevant to the hand pumps allegation.

It was Mr. Mwitwa’s opinion that just as Mr. Mboyi approached Mr. Moosa to

claim for a refund over a borehole he did not pay for, Mr. Mboyi could have done

the same with Hon Dora Siliya. On the provisions of Section 51 of the Local

Government Act, Mr. Mwitwa submitted that Hon Dora Siliya cannot shelter

behind those provisions because as a Councilor of Petauke District Council and

Member of Parliament, Hon Dora Siliya knew or ought to have known that the

Council never passed any resolution to borrow money from her. He submitted that

in fact exhibits P52 and P53 are highly questionable and show that there was no

money that was in fact lent to the Council by Hon Dora Siliya.

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For these reasons Mr. Mwitwa submitted that Hon Dora Siliya breach

section 4 (a) and (c) of the Parliamentary and Ministerial Code of Conduct Act

with respect to improper use of or benefit from information obtained in the course

of one official capacity, converting Government properly to one’s personal use

…… and soliciting or accepting transfers of economic benefit. It was Mr.

Mwitwa’s Submission that Hon Dora Siliya knowingly acquired K12,495,000.00

by improperly benefits from her knowledge from the communication from the

Honorable Minister of Local Government and Housing that CDF had been

disbursed to the Petauke District Council CDF account. He said that after receipt

of this information Hon Dora Siliya made a claim for a refund of K12,500,000.00

and was paid K12,495,000.00 from the CDF. Mr. Mwitwa then made reference to

the use of a Government headed paper by Hon Dora Siliya. We do not think that

this is an issue of consequence to this allegation.

In conclusion Mr. Mwitwa submitted that on the oral and documentary

evidence the Tribunal should find that Hon Dora Siliya did not lend

K12,500,000.00 to the Petauke District Council and that as a consequence of this

Hon Dora Siliya breached Section 4 (a) and (c) of the Parliamentary and

Ministerial Code of Conduct Act and recommend that Hon Dora Siliya vacates

her seat in Parliament and consequently her Ministerial position. Further Mr.

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Mwitwa submitted that the Tribunal should also recommend to the Law

Enforcement Agencies to investigate Hon Dora Siliya for criminal offences.

Mr. Silwamba SC, submitted that on the evidence the role of Hon. Dora

Siliya was only to advance the Petauke District Council funds and she did not

participate in any way in the manner the funds were applied or even how the

council treated her refund. It was Mr. Silwamba’s submission that Hon Dora

Siliya did not exert any influence whatsoever. Mr. Silwamba argued that in the

circumstances Hon Dora Siliya had no obligation to inquire into the internal

procedures for the management of the funds by the council as she was just a

lender. He said there is no law which imposes such an obligation on a lender. As

authority for this proposition, Mr. Silwamba cited Section 51 of the Local

Government Act, the Turquand Rule and other case which it is not necessary for

us to reproduce. We have read and considered these cases.

It was Mr. Silwamba’s submission that Hon Dora Siliya was not obliged to

enquire whether Mr. Mboyi, the Council Secretary, had sought clearance of the

Council or whether the provisions regulating borrowing had been satisfied. He

pointed out that no single witness came to tell the Tribunal that Hon Dora Siliya

actually defrauded the Council of its funds. In fact, Mr. Silwamba pointed out, the

record shows that Hon Dora Siliya was under paid on the ground that K5000 could

not be accounted for.

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After citing part II of the Parliamentary and Ministerial Code of Conduct

Act, Mr. Silwamba submitted that for the Tribunal to make a finding that part II of

the Act was breached it must be established that the Respondent;

(a) Gained pecuniary advantage; or

(b) Improperly used information not generally available to the public; or

(c) Disclosed sensitive information; or

(d) Converted government property for personal use; or

(e) Spoke in the National Assembly in a matter in which he had an interest

without a declaration; or

(f) Generally failed to make a declaration in contracts he has an interest.

Mr. Silwamba submitted that none of the above situations is revealed by the

evidence. Consequently, Mr. Silwamba submitted the Tribunal, inter alia, make

a finding that Hon did not breach part II of the Parliamentary and Ministerial

and Code of Conduct Act.

We have carefully considered the evidence on this allegation and the

Submissions of Counsel. We have also carefully perused the documents

produced by the parties. Although much evidence was led on this allegation

and length Submission made, the critical issue is simply whether on the

evidence Hon Dora Siliya can be said to have defrauded the Petauke District

Council of K12,500,000.00 or was guilty of corrupt receipt of K12,500,000.00

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public funds as alleged by the Civil Society. The Civil Society alleged in the

particulars of their complaint that Hon Dora Siliya got a refund of

K12,500,000.00 for two hand pumps when the cost of the pumps was

K2,500,000.00 each at that time. The evidence does not prove this allegation

because Hon Dora Siliya did not claim a refund for pumps. She claimed a

refund for the money advanced to drill two bores, one at Tasala 2 and another at

Show grounds.

The K12, 500,000.00 which Hon Dora Siliya said she advanced was used to

drill two bore holes and to buy hand pumps to equip the boreholes. The

payment voucher which appears to be a basis of the allegation was not written

by Hon Dora Siliya but by accounts staff at Petauke District Council. Hon Dora

Siliya said she first saw the payment voucher at the Tribunal and this evidence

is not challenged. Therefore, Hon Dora Siliya’s culpability has to be

determined on her letter of claim, the acknowledgement notes written by Mr.

Mboyi and signed by her and Mr. Mboyi.

The fact that the two bore holes were sunk with the K12,500,000.00 which

Hon Dora Siliya said she advanced the Council for the purpose is not in

disputed. It is also not in dispute that Hon Dora Siliya was refunded

K12,495,000.00. Further, it is not in dispute that Hon Dora Siliya lent the K12,

500,000.00 outside the normal council practice of borrowing and lending

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money; that the K12,500,000.00 was not receipted in the council books of

account and that the council was not aware of the transaction between Hon

Dora Siliya and Mr. Mboyi the Council Secretary until the matter surfaced in

the press.

Counsel for the Complainants urged us to find that the K12,500,000.00 paid

to Hon Dora Siliya was not a refund as there is no evidence to show that this

money was ever advanced to the Council. Counsel for Hon Dora Siliya argued

otherwise. As we see it what this allegation boils down to is that Hon Dora

Siliya and the Council Secretary, Mr. Mboyi, connived to defraud the Petauke

District Council of K12,500,000.00 with Hon Dora Siliya being the beneficiary

of this fraud. No reason has been suggested for such connivance and we

ourselves cannot discern any reason from the evidence. Mr. Mwitwa in his

submissions suggested that since Mr. Mboyi went to Mr. Moosa to ask him to

claim for a refund for a borehole which he did not pay for, he must have done

the same with Hon Dora Siliya. On the evidence before us we do not agree

with this suggestion. We have documents showing expenditures of monies

which tally not only with the range of the dates on which Hon Dora Siliya said

she gave the money to Mr. Mboyi on behalf of the Council for use to drill the

boreholes but also with the amount given. The only difference, as Mr.

Silwamba observed, is that Hon Dora Siliya was under paid by K5000,00.

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Further, Mr. Mwitwa in his submissions said that there was even a high

possibility that Hon. Minister Dora Siliya never gave any money to Mr. Mboyi.

This submission is farfetched because there is no evidence on record to suggest

that the money used to drill the boreholes at Tasala 2 and the show grounds

came from or could have come from a different source. The evidence by Mr.

Mboyi that at the material the council had no money is not challenged.

On the evidence there is no basis upon which we can make a finding that

there was fraud, let alone a corrupt practice, on the part of Hon Dora Siliya.

Simply put, fraud means use of false representation to gain an unjust advantage.

Hon Dora Siliya lent money to the Council to drill boreholes. The evidence that

the boreholes were drilled with Hon Dora Siliya’s money is uncontroverted.

There was, therefore, no unjust advantage gained by Hon Dora Siliya for her

action to amount to fraud. The fact that the money was lent outside the laid

down council procedures for borrowing or lending money does not on the facts

of this case make the transaction between Hon Dora Siliya and Mr. Mboyi the

Council Secretary a fraud. In any case, this is not the first time an official of the

Council has committed the council to expenditure without prior council

resolution. Mr. Moosa, who was the complainants witness member 13, testified

that when the walls of Chimwala Community School were collapsing, he

borrowed building materials from Ibrahim Bargain Centre for K11,000,000.00

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and later asked the Council Secretary to raise the money. In that case Mr.

Moosa said he took the action because the matter was urgent and the council

had no money, like in this case. The council later ratified his action. And there

is no evidence to challenge Mr. Mboyi’s testimony that in this case the council

ratified his action. We also heard evidence of laxity by the Council in enforcing

its regulations when a Councilor diverted a fertilizer project approved for

Tilitonse Women’s Club to Kangomwa. We waited, in vain, for evidence that

the Council took action against the Councilor concerned. We are satisfied

that on the facts of this case the transaction between Hon Dora Siliya and Mr.

Mboyi like the transaction between Mr. Moosa and Mr. Mboyi, is evidence of

laxity in the application of financial regulations by council officials at Petauke

District Council and not evidence of fraud, let alone corrupt practices on the

part of Hon Dora Siliya. The proper application or otherwise of financial

regulations at Petauke District Council is not within our terms of reference.

All in all, the evidence before us does not prove the third allegation and,

consequently, we find that Hon Dora Siliya did not breach Section 4 of the

Parliamentary and Ministerial Code of Conduct Act as alleged. The result is

that we decline to make the recommendations we have been asked to make in

relation to this allegation.

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After considering all the evidence, we have found that allegation number

two and three have not been proved against Hon. Dora Siliya. But we have found

that the first allegation relating to the failure to comply with the legal advice of the

Attorney-General and failure to observe tender procedures has been proved. The

critical issue is whether failure to comply with the legal advice of the Attorney-

General and failure to observe tender procedures amount to a breach of the

Parliamentary and Ministerial Code of Conduct. The Complaint is brought under

Part II of the Parliamentary and Ministerial Code of Conduct Act. The

Complainants allege that Hon. Dora Siliya has breached Section 4 (a) (b) and (d).

And in his submissions Mr. Mwitwa also alleged breach of Section 4 (e).

The Section relied upon read us follows;-

“Section 4. A member shall be considered to have breached the Code of Conduct

if he knowingly acquires any significant pecuniary advantage or assists in the

acquisition of pecuniary advantage by other person, by-

(a) improperly using or benefiting from information which is obtained in the

course of his official duties and which is not generally available to the

public: or

(b) disclosing any official information to unauthorized persons; or

(c) ………..

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(d) directly or indirectly converting Government property for personal or any

other unauthorized use; or

(e) soliciting or accepting transfers of economic benefit, other than –

(i) benefits of nominal value, including customary hospitality and

token gifts.

(ii) gifts from close family members, or

(iii) transfers pursuant to an enforceable property right of a Member or

pursuant to a contract for which full value is given.

But not withstanding that the complainants have been specific in the provision

which they think have been breached, in our consideration of this matter, we have

looked at all the prohibitions under Part II. On the evidence we find that what

Hon. Dora Siliya did under allegation one which has been proved does not fall

under Part II of the Parliamentary and Ministerial Code of Conduct Act.

However, we think that it is within our mandate under Section 14 (8) of the

Parliamentary and Ministerial Code of Conduct Act to make these observations for

consideration by the President who appoints Ministers. 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

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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.

With regard to the general law we have already said that in the first place

Hon. Dora Siliya should not have been involved in the selection of R.P Capital

Partners Limited and the valuation of ZAMTEL assets which we were told RP

Capital Partners Limited are already doing. Under the Zambia Development

Agency Act the responsibility to secure and appoint valuers after Cabinet has

approved lies in the hands of Zambia Development Agency.

It is the strong view of the Tribunal that Government Ministers must strictly

observe the Constitution and the Laws made there under and Government

regulations. Breach of the Constitution and the Laws made there under by

Government Ministers and officials undermines the Rule of Law and contaminates

the Government system as it sends wrong signals to the general citizenry. In the

present case we leave Hon. Dora Siliya’s breaches to His Excellency the President

to deal with.

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