Well, the Post editor saga on alleged indecent photography and publishing such thereof, took me on a journey into the past and in so doing, today's laws of Zambia, in particular the Penal Code. I here cite a few sections!
1. Sentence of death. Section 25. (1) When any person is sentenced to death, the sentence shall direct that he shall be hanged by the neck until he is dead.
2. Defamation of President. Section 69. Any person who, with intent to bring the President into hatred, ridicule or contempt, publishes any defamatory or insulting matter, whether by writing, print, word of mouth or in any other manner, is guilty of an offence and is liable on conviction to imprisonment for a period not exceeding three years.
(No. 6 of 1965)
3. Unnatural offences. Section 155. Any person who (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature; is guilty of a felony and is liable to imprisonment for fourteen years. (As amended by No. 26 of 1933)
4. Indecent practices between males. Section 158. Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
(As amended by No. 26 of 1933).
5. Obscene matters or things. Section 177. (1) Any person who - (a) makes, produces or has in his possession any one or more obscene writings, drawings, prints, paintings, printed matter, pictures, posters, emblems, photographs, cinematograph films or any other object tending to corrupt morals; or (b) imports, conveys or exports, or causes to be imported conveyed or exported, any such matters or things, or in any manner whatsoever puts any of them in circulation; or (c) carries on or takes part in any business, whether public or private, concerned with any such matters or things, or deals in any such matters or things in any manner whatsoever, or distributes any of them, or exhibits any of them publicly, or makes a business of lending any of them; or (d) advertises or makes known by any means whatsoever with a view to assisting the circulation of, or traffic in, any such matters or things, that a person is engaged in any of the acts referred to in this section, or advertises or makes known how, or from whom, any such matters or things can be procured either directly or indirectly; or (e) publicly exhibits any indecent show or performance or any show or performance tending to corrupt morals; is guilty of a misdemeanour and is liable to imprisonment for five years or to a fine of not less than fifteen thousand penalty units nor more than seventy-five thousand penalty units.
Premised on the foregoing citations, surely what the Post editor is being charged with is just one of the many unnatural offences in our laws. It is for this fact that I find the noise being made a contradition of natural thinking. It is reflective of unnatural thinking. That is, it does not conform to the norm. It should be inarguable that these citations reflect a collective proclivity to unnatural thinking among a people.
The norm is that we are a very morally upright and christian people. This is the norm as I know it and as it has been proclaimed. And it is as it has always been reflected in our laws.
It is because of this norm that we still hang people by the neck until death, we criminalise blow jobs, and homosexuality (as in citation 1, 3 and 4). The president is like a god, chief or king, so we can not say anything very bad against him!
Surely if we so claim moral uprightness why are we now frenzied over the Post editor's circumstances? Offences in citation 3 and 4 are deemed offences against morality, whilst citation 5 (Obscene matters or things. Section 177) is deemed to corrupt morals. It is surely is inarguabe that the law being used against her is premised on an assumption of high morality, just as are laws against homosexuality or blow jobs!
If it is now being argued that the law in the Post editor's case is archaic or repressive, then can we also hear voices calling for the review of all other archaic laws.
Let us move away from these forms of unnatural thinking, and which border on hypocrisy. We need to call on the citizens to ensure that the Law Development Commission fulfils its mandate, which in part, is to remove archaic pieces of legislation from the statute book.
This backwater country which I call home never ceases to maze me! I hope tomorrow, the SDA reservations with teaching reproductive organs is not made into law. Or indeed the pictures in biology textbooks are not erased!
Monday, July 13, 2009
Friday, July 3, 2009
A Question of Public Impropriety, Law and Interpretation
This blog serves to elucidate my criticisms of the voices on the Dora Siliya saga, in particular CSOs.
My consistent arguments are that the Dora Siliya Tribunal findings is more a case of public impropriety, than law. That is, evidence of her committing criminal offences was not manifest.
I have studied the Anti-Corruption Commission Act, Zambia Development Agency Act, 2006, and Public Procurement Act no. 12 of 2008, and failed to find which clauses within the Tribunal allegations and evidence tendered one can argue criminality in the Dora Tribunal saga.
A breach of an Act of Parliament or an act contrary thereof, is not legally an offence or criminal offence, unless that particular Act prescribes an offence and subsequent penalty. This is how the laws of Zambia are provided and it is within this framework that I find the persistent arguments by CSOs lacking in fact, hence my use of the term “misinterpretation of facts”. Public impropriety is addressed administratively, where the law does not provide for offences.
To which end, a president can simply have administrative recourse to an erring public servant, when the law does not provide penalties for a breach. Administrative recourse can be a reprimand, suspension or dismissal.
There is need for CSOs to rethink what they are communicating to the public, and to concern themselves with the gaps in law that serve to perpetuate our backwardness.
For instance, the Tribunal found that:
1. "...Dora Siliya signed a Memorandum of Understanding which committed Government to a sum of Money beyond her Ministry threshold without approval of the Zambia Public Procurement Authority."
2. "...the Minister of Communications and Transport did not follow the requisite tender process in the selection of R.P Capital Partners Limited. It is not the law that the selected tender supplier presents a different proposal from others."
3. "... 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 evidence that she actually shared information with R.P Capital Partners Limited."
4. "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."
I can cite such other findings, which I do not dispute, what I dispute is that these were the allegations brought before the Tribunal, and that these are criminal!
Unless, the Tribunal Report is wrong, the following were the allegations that constituted the proceedings:
- that Dora Siliya breached Section 4 (a) and (c) of the Parliamentary and Ministerial Code of Conduct Act, with the complaints premising this constituting the following:
1. "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 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"
2. "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."
3. "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 Tribunal summation being - "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."
Allegation number three (3) from CSOs should not have been a part of the allegations. This was alleged criminal activity. How can any reasoning person put it within the Parliamentary and Ministerial Code of Conduct Act? What was the motive? Or did the lawyers misguide CSOs?
I ask this in the light of the fact that it is the duty of citizens to report criminal activities and if possible provide information on criminal activities. Failure to divulge such information is a crime. Why was such evidence not tendered in the proper legal process?
My consistent arguments are that the Dora Siliya Tribunal findings is more a case of public impropriety, than law. That is, evidence of her committing criminal offences was not manifest.
I have studied the Anti-Corruption Commission Act, Zambia Development Agency Act, 2006, and Public Procurement Act no. 12 of 2008, and failed to find which clauses within the Tribunal allegations and evidence tendered one can argue criminality in the Dora Tribunal saga.
A breach of an Act of Parliament or an act contrary thereof, is not legally an offence or criminal offence, unless that particular Act prescribes an offence and subsequent penalty. This is how the laws of Zambia are provided and it is within this framework that I find the persistent arguments by CSOs lacking in fact, hence my use of the term “misinterpretation of facts”. Public impropriety is addressed administratively, where the law does not provide for offences.
To which end, a president can simply have administrative recourse to an erring public servant, when the law does not provide penalties for a breach. Administrative recourse can be a reprimand, suspension or dismissal.
There is need for CSOs to rethink what they are communicating to the public, and to concern themselves with the gaps in law that serve to perpetuate our backwardness.
For instance, the Tribunal found that:
1. "...Dora Siliya signed a Memorandum of Understanding which committed Government to a sum of Money beyond her Ministry threshold without approval of the Zambia Public Procurement Authority."
2. "...the Minister of Communications and Transport did not follow the requisite tender process in the selection of R.P Capital Partners Limited. It is not the law that the selected tender supplier presents a different proposal from others."
3. "... 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 evidence that she actually shared information with R.P Capital Partners Limited."
4. "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."
I can cite such other findings, which I do not dispute, what I dispute is that these were the allegations brought before the Tribunal, and that these are criminal!
Unless, the Tribunal Report is wrong, the following were the allegations that constituted the proceedings:
- that Dora Siliya breached Section 4 (a) and (c) of the Parliamentary and Ministerial Code of Conduct Act, with the complaints premising this constituting the following:
1. "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 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"
2. "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."
3. "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 Tribunal summation being - "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."
Allegation number three (3) from CSOs should not have been a part of the allegations. This was alleged criminal activity. How can any reasoning person put it within the Parliamentary and Ministerial Code of Conduct Act? What was the motive? Or did the lawyers misguide CSOs?
I ask this in the light of the fact that it is the duty of citizens to report criminal activities and if possible provide information on criminal activities. Failure to divulge such information is a crime. Why was such evidence not tendered in the proper legal process?
"Guilty by Warped Reasoning?"
First posted on June 25.
Again we were subjected to misrepresentations of the Chirwa Tribunal Findings on Dora Siliya during the Press Conference Q and A. What exactly do our journalists read?
The Tribuynal never found Dora guilty of all what the Petitioners had alleged. Period! "We find that Hon Dora Siliya did not breach Section 4 of the Parliamentary and Ministerial Code of Conduct Act as alleged...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..." - D. Chirwa Tribunal Findings.
Can CSOs and the media in this country stop the nonsense of misrepresenting facts! In the public domain, Dora's case is one of public impropriety and not law. I urge the CSOs, Media and Dora to re-orchestrate their dance in a publicly meaningful manner and not mere noise. CSOs and aggrieved Zedizens should re-institute a proper legal process as what was challenged in the tribunal was not founded on reason. Let us not find individuals guilty because of our own warped reasoning.”
Again we were subjected to misrepresentations of the Chirwa Tribunal Findings on Dora Siliya during the Press Conference Q and A. What exactly do our journalists read?
The Tribuynal never found Dora guilty of all what the Petitioners had alleged. Period! "We find that Hon Dora Siliya did not breach Section 4 of the Parliamentary and Ministerial Code of Conduct Act as alleged...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..." - D. Chirwa Tribunal Findings.
Can CSOs and the media in this country stop the nonsense of misrepresenting facts! In the public domain, Dora's case is one of public impropriety and not law. I urge the CSOs, Media and Dora to re-orchestrate their dance in a publicly meaningful manner and not mere noise. CSOs and aggrieved Zedizens should re-institute a proper legal process as what was challenged in the tribunal was not founded on reason. Let us not find individuals guilty because of our own warped reasoning.”
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