Professional Documents
Culture Documents
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 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.
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
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
Lastly we wish to thank Counsel and all witnesses who appeared before us
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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.
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
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
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
There were nine witnesses including the first complainant and Hon. Dora Siliya,
The first witness on this allegation was Mr. William Harrington, the first
several editions of the Post newspapers. He did not wish to make further
Communications and Transport around 1994 and 1995, he could assert the
the government to sums of money as was in the current case between the Ministry
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
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
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,
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
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
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
The second witness on the allegation was Mr. Reuben Lupupa Lifuka, President
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 –
The third witness was Hon. Given Lubinda, a Member of Parliament for
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
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.
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
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
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;
(b) The Attorney-General’s legal opinion dated the 5th January, 2009 which
(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,
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
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
opinion of the Acting Principal Counsel did not raise that issue prior to the signing
The fourth witness on this allegation was Dr. Eustern Mambwe, who was the
material time. His testimony was as follows: he had been in the position of
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
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
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
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
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
took the view that that the Minister wanted somebody other than MDD to carry-out
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
letter from the Minister as required of him by procedure. In view of the Attorney –
Understanding until further notice. He did not know that, at the time, the
already been signed. He then phoned the Attorney – General to find out whether
considering that it had already been signed. The Attorney – General responded
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
Understanding.
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
expenditure. It was possible that he may have signed letters concerning the
aware that the Minister had signed the Memorandum of Understanding after he had
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
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
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
company known as R.P Capital Partners Limited. His firm had never been
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
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.
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
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
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
receipt of that legal advice, she instructed the Director of Planning and the Director
She did hold several meetings with the Minister of Commerce as well as the
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 would explain to the Cabinet the problem that ZAMTEL was facing.
They would also provide solutions and then seek Cabinet’s guidance. The
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
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
sent to her Ministry, the same opinion by that particular legal Counsel.
P59
(iv) a copy of a letter from the Solicitor – General to her Office dated
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(v) A letter from the Solicitor – General to her office dated the 5th December,
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
ZAMTEL, however had not yet been made to – date. The decision to value the
Francis Mwanamuke, made an appointment through her office to meet her. On the
day appointed for the meeting, Mr. Francis Mwanamuke, came with
company the name she could not remember. She called for the Director of
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.
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
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
dossier about themselves. Her officials were happy about it and made
Ministry did as far as R.P Capital Partners Limited was concerned was done
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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
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
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
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.
availability of funds because by then that law had changed, therefore, it was no
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Ministry’s threshold. At present there was no obligation on the Government to pay
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
Solicitor General advised that the Zambia Development Agency prepare the
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
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
explained that the essence of the Memorandum of Understanding was not the sale
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
intentions. Therefore in his legal opinion of the 25th November, 2008, he pointed
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
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
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
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that the Zambia Development Agency had been made a party. At that point he was
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
that the Minister was not reflected by name. After that advice he had little to do
and the Attorney – General had been in agreement regarding the legal advice
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.
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
Understanding. All the points that he raised in his legal opinion of the 25th
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
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
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Transport and not Hon. Dora Siliya. Attorney General’s chambers received
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
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
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following the Attorney – General’s letter of the 5th January, 2009 the parties had
During cross – examination, the witness produced a copy of the final draft of
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
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
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
December, 2008 at which they had expressed very serious reservations about the
client Ministry
(ii) On the 21st November, 2008. the Acting Principal Counsel wrote to the
(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
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
signed.
behalf of the agency no one had signed. Both the two signatures
had the date of 22nd December 2008. This then tallied with the
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contents of the Memorandum of Understanding properly
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
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
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e) That the Public Procurement Act required certain approval including that
and
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
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Government would be in breach of an obligation that it had entered into in the
Memorandum of Understanding.
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
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.
Government
follows; the opinion of the Acting Principal Counsel dated the 21st November,
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
sale and the valuation of ZAMTEL. His representative had informed him that the
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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
Board of Directors had resolved to sign it. The representative responded that she
From that evidence and the documents produced, the following facts are not in
disputes;
concerning ZAMTEL
4. At the Conclusion of the meeting the Hon. Dora Siliya and her officials in
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5. The Israeli company responded to the request and presented its expression
privatization.
8. Being happy with that proposal, Hon. Dora Siliya handed the
proposal further
Memorandum of Understanding
34
11. On the 12th November, the Acting Permanent Secretary in the Ministry
13. On the 21st November, 2008 the Acting Principal Counsel wrote to the
Understanding
14. Upon perusal of that legal advice, Hon. Dora Siliya convened a meeting
15. Pursuant to that meeting, the Solicitor – General wrote to the Hon. Dora
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
18. On the 5th December, 2008, the Solicitor – General wrote to Hon. Dora
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Memorandum of understanding provided that two more
signed
20. On the 5th January, 2009 the Attorney-General wrote to the permanent
pointing out that the parties had gone ahead to sign for
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
Agency
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.
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It has been submitted on behalf of the second complainants that Hon. Dora
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
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
chambers was first contained in the legal opinion rendered by the Acting Principal
and 8 of that legal opinion. In paragraph 6 of the legal opinion, it is clear that the
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
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
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
Understanding was not about the sale of ZAMTEL but was about the initial
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.
concerned with the initial consultation ahead of any Cabinet decision to sell
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
ZAMTEL
Following this opinion, Hon. Dora Siliya again had a tele-conference with the
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-
A perusal of the draft which was availed to the Solicitor-General shows the
following;
ZAMTEL
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(ii) among the services, R.P Capital Partners Limited were mandated by the
(iii) Once R.P. Capital Partners Limited had provided services concerning
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
merely concerned with the initial valuation of ZAMTEL, the draft that was before
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
sale, the draft before him dealt with everything and did not give room for any
Solicitor-General overlooked the earlier legal opinions and cleared the draft for
signing.
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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
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
done, following the necessary processes. A few days after that the parties signed
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-
The advice of the Attorney-General of the 5th January, 2009 was that the first
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
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
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
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
The Second limb of this allegation is that Hon. Dora Siliya signed a
December, 2008 is that it is now binding on the government and is not contingent
put before us the sale of a parastatal company must be sanctioned by the Cabinet.
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;
Understanding and
During the proceedings, the Tribunal heard that the current maximum threshold
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$50,000
The alleged breach of tender process can be looked at from two aspects:
(ii) Tender process in terms of the selection of R.P Capital Partners Limited.
In the first instance it is clear that once a decision to sell ZAMTEL has been
made by Cabinet, the Government will not be allowed to commence any tender
services leading to the sale of ZAMTEL and bound to pay at least a sum of US$
Two Million. This commitment is traced to the Ministry which signed the
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
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
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
“a procurement method for consulting services where bids are obtained by direct
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
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
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
circumstances are as follows; it was the feeling by the Ministry and other
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
However, all those expressions went either for the outright purchase of ZAMTEL
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
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
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
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.
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,
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
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
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
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
The first was Isaac Mukupa who is a Purchasing and Suppliers Officer or Director
gist of his evidence was that the Ministry Communications and Transport as parent
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.
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
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
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
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
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
General of Zambia National Tender Board and copied his letter to Hon. Siliya and
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
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.
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
witness also said that as far as he knows, the Tender awarded to Thales Air System
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
54
sector involving City Councils and other Councils. He told the Tribunal that as of
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
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
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
that will include the requesting entity. After the Evaluating Committee has
evaluated all the tender bids, they make recommendations to the Central Tender
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
With regards to the Radar tender, the witness recalled receiving a request
He advised them and the tender process began. After the whole tender process was
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:-
2. Intelcan
3. China Les
4. Remet C.H.M
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
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
(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
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
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
“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
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
also the submissions. From the evidence we accept that when Hon. Siliya was
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
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
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
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
breach of the Parliamentary and Ministerial Code of Conduct Act, which is the
allegation.
The third Complaint against the Hon. Dora Siliya was made by a Consortium of
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
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
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
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
The particulars of the third complaint go on to allege that after the fore-
going transactions and when the Constituency Development Fund (herein after
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
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
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
the matter to the Anti Corruption Commission. He said the facts on the third
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
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.
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,
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
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
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
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
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
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
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
Mr. Francis Nkhoma is the Acting Council Chairman. Mr. Moosa locked up
District Planning Officer, from the Water Department and the Health Department.
The function of the Finance and General Purpose Committee is to consider and
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
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 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
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
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
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
consider and approve the application. The approved project then passes through
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the District Development and Coordinating Committee which advices the PWDC
on the suitability of funding the project. After that PWDC recommends adoption
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
deposed that the procedure followed was wrong. There was no proposer and
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
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
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
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
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.
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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
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
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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
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
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
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.
currently running the Parliamentary office. He did not interact with Mr. Nyirenda
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
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
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
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
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
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
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
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
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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
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
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
When cross examined she said for a council to undertake a project there
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
According to Mr. Mboyi, who was the Respondents second witness, he is the
Council Secretary for Petauke District Council. His duties include general
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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
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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
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
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
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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
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
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
viz:-
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2. The Council should refute the allegation that the Honourable Minister
ratified.
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
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
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
council. When drilling bore holes in Tasala 2 and the show grounds the CDF
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
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.
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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
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
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
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
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
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by a Member of the National Assembly of his seat if he acts contrary
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
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
Mr. Mwitwa pointed out that the Council did not pass any resolution to borrow the
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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.
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
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
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
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
evidence the Tribunal should find that Hon Dora Siliya did not lend
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
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
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
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
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
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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
without a declaration; or
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
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
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public funds as alleged by the Civil Society. The Civil Society alleged in the
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
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,
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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
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.
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
resolution. Mr. Moosa, who was the complainants witness member 13, testified
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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
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
District Council and not evidence of fraud, let alone corrupt practices on the
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
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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-
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).
course of his official duties and which is not generally available to the
public: or
(c) ………..
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(d) directly or indirectly converting Government property for personal or any
token gifts.
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
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
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
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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
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
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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