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?